Groucho Marx once commented that "military justice is to justice what military music is to music." Many human rights attorneys would agree with this assessment. Military justice systems are viewed throughout the world as generally providing a lesser version of civilian or "real" justice. Military justice serves, uneasily, two masters; the preservation of military order and the punishment of criminal offenders. In a sense the civilian criminal justice system likewise must balance the demands of public safety and the protection of civil liberties. The difference between the two systems is generally perceived to be the closed nature of military justice and the rapidity with which military justice is usually dispensed.
The military justice system here in Taiwan has historically a very poor record. During the years of martial law, the military justice system was used as an instrument of terror and oppression. Its procedures were swift, the trials and its goal was not justice but rather suppression of the enemies of the KMT.
Even after the lifting of martial law the Taiwanese military justice system was viewed with contempt; and rightly so. From being a tool for KMT oppression the Taiwanese military justice system became a more "localized" tool of oppression used by individual unit commanders in the Taiwanese military.
As a result of this tainted history the NGO community, human rights workers and the public have welcomed the recent changes to the military justice system. A review of the revised Military Trial Law does show major changes in procedure and the interrelation of the military justice system with the civilian courts. These structural and procedural changes will go a long way to ensuring that soldiers get more justice than they have in the past.
However, the public here in Taiwan, as well as scholars and the politicians, tend to overlook half the battle in any justice reform plan, be it civilian or mili-tary justice reform. Changing the system, changing the procedures, is only half the battle; maybe, in fact, less than half the battle.
Let me use a sports analogy. To win auto races a team must have two things; the right driver and the right car. The car must be well designed, well built and carefully engineered. The driver must have courage, judgement and experience. Having a good car without a driver won't win races. Nor will having the best driver in the world in a poorly designed car. You must have both.
Likewise for a criminal justice system to deliver justice you must have a well designed system and judges, prosecutors and defense counsel who have courage, judgement and experience. It is not enough to design a good system and then hold a press conference and engage in self-congratulation over the "solution" to the problem of mili-tary justice. My concern is that the public, the scholars and the politicians have done exactly that. The newspapers herald the new laws; lawmaker Hsieh Chi-ta (
Unfortunately the "great success" of the new military justice system remains to be seen. It is as ludicrous as a racing team announcing after unveiling their new race car that they will win all the Grand Prix races. We may have solved the structural problems of the military justice system but now we need to solve the problem of creating a JAG Corps (judge advocate general; ie, military judges, prosecutors and defense counsel) that is well trained, motivated and has the professionalism and moral courage to be truly independent of the normal command chain of the military.
That is by far the bigger battle.
Brian Kennedy is a member of the boards of Amnesty International Taiwan and the Taiwan Association for Human Rights.
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