Flaws in the military judicial system

By Huang Cheng-yi 黃丞儀  / 

Tue, Aug 06, 2013 - Page 8

The death of army corporal Hung Chung-chiu (洪仲丘), who allegedly died as a result of abuse while serving in the military, has brought shame on the armed forces, forced President Ma Ying-jeou (馬英九) to issue an apology and prompted a government minister to resign — and the affair has yet to come to an end.

If the case had been handed to the Taoyuan District Prosecutors’ Office right from the outset, to be heard in a civilian court, the public’s rage would not have reached the level it has.

If the case had been heard within the civilian judicial system instead of being referred to a military court, not only would the public have had faith in its outcome, it would also have better guarantee the rights of the defendants.

Many countries, including Austria, Denmark, the Netherlands and Sweden, do not have military courts at all.

Neither does Germany, which has learned the lessons of its Nazi past and declined to set them up in the post-World War II period, even though its constitution allows it.

In the immediate post-war period, when Germany was divided into east and west, the lack of military courts did little to dampen the either side’s resolve to operate a national defense force.

Neither has the lack of a military judiciary affected the German military’s participation in overseas conflicts after East and West Germany were reunified.

Apparently, whether a country has a military court has little bearing on national defense issues.

The biggest problem with military courts is that members of the armed forces have sworn to serve, but judges need to be independent, which causes a conflict when these two demands co-exist in the person of a military judge. This conflict can be fatal.

The legislature has now been called for an extraordinary session in the fallout of the Hung case, with both the ruling and opposition parties proposing amendments to the Code of Court Martial Procedure (軍事審判法).

According to media reports, the parties’ proposals are based on differentiating between wartime and peacetime, such that during peacetime any cases would be referred to civilian courts, whereas the case of any member of the armed forces committing a crime during wartime would be dealt with by a military court.

However, even during wartime, a military judge would still wield judicial powers and even in wartime judges must not shirk on due process of law.

At the moment, all appointments and qualifications of judges in military courts are made by the Ministry of National Defense, which answers only to the Cabinet.

To say that military courts in this form have judicial powers and judicial independence is simply not true.

The current version of the Martial Law (戒嚴法) stipulates that once martial law is declared, 10 crimes — including fomenting civil unrest, foreign aggression, disrupting social order, causing danger to the public and offenses against all special criminal statutes — will be handed to military courts to be tried.

During the White Terror era, many trials were conducted in military courts, among them the prosecution of the Taiwan democracy pioneer Lei Chen (雷震) and the Kaohsiung Incident tribunal, and these were quickly processed and wrapped up, with utter disregard for human rights.

The lesson is easily drawn. If Taiwan continues to maintain military courts, it will allow unscrupulous politicians to abuse their power to eliminate political dissidents.

Taiwan is a tiny, densely populated country, with one local court — in some cases several courts — in every city or county.

Crimes committed by members of the armed forces are not a rare occurrence, and these are regularly investigated by district prosecutors’ offices and heard in district courts without difficulty.

If military courts are abolished, members of the military judiciary could be asked to assist in trials or act as legal consultants provided by the armed forces.

They could even become judges, if they manage to pass the national examinations.

Neither should it be too difficult for judges from ordinary courts to apply the military’s criminal code.

Also, there would no longer be the contradiction of matters of fact being heard in military courts, while matters of law are ruled upon by the Supreme Court.

The only way to ensure that the armed forces regain their reputation for being above reproach and protect the rights and interests of members of the armed forces is to return to a solely civilian judiciary.

If the legislature allows this opportunity to slip away, if it fails to find a way to resolve the issues that have long plagued our country — the problems with the military and the two-tier judicial system — it will be consigning the military trial system to an end.

Huang Cheng-yi is an assistant research professor in Academia Sinica’s Institutum Iurisprudentiae.

Translated by Paul Cooper