The debate about extending military service has recently focused on military discipline. With a former army colonel recently charged with corruption for apparently having pledged allegiance to China, the necessity of reinstating military trials is being debated.
After pressure from the public and lawyers over the tragic death in 2013 of army corporal Hung Chung-chiu (洪仲丘), Articles 1, 34 and 237 of the Code of Court Martial Procedure (軍事審判法) were amended. Since then, military trials of officers have been completely suspended in peacetime. Military personnel are tried in civilian courts, and military trials would only be permitted in times of war.
The right to prosecute them was transferred from the military to the Ministry of Justice. When a public prosecutor, who would likely not have any military experience, conducts an investigation into a case involving the military, they might not be assisted by military personnel. Problems could therefore arise if a public prosecutor is misguided by the military’s attempts to withhold material on the pretext of it being “confidential.”
Military law allows for keeping order among troops and disciplining soldiers, and can also facilitate boosting military morale and consolidating human rights, despite the lack of independence in its trials.
Former grand justice Chen Shin-min (陳新民), an authority on military law, believes that the military and civilian prosecution systems have advantages and disadvantages.
Prosecution and sentencing within the civilian legal system ensure that judicial justice is maintained and military personnel’s human rights are protected.
However, if military trials return under the auspices of the Ministry of Defense, institutional compatibility would facilitate the prosecution process.
As a military prosecutor would have worked within the institutions of national defense, they would be better positioned to understand the military culture and its administrative affairs, making communication during an investigation easier.
Furthermore, given the prosecutor’s military background, the military would be much more cooperative, making it easier to schedule cases, summon witnesses to court or detain people due to security concerns.
Officers and soldiers spend much of their time together, so tensions are unavoidable. Any misconduct or crime should be investigated, which can be needlessly time-consuming. Unit officers should be allowed to exercise discretion as to what should be investigated.
With minor brawls, insults or acts of disobedience that do not have severe consequences, unit officers should decide what punishment is appropriate and in the interest of maintaining order among troops.
Taiwan’s system of criminal law is based on the German model, but some academics would prefer to see Germany’s criminal trial system transplanted wholesale onto Taiwan’s.
However, Germany is a major industrialized country, the fourth-largest economy in the world, and is not surrounded by hostile nations. Taiwan is threatened by the world’s second-largest military power. The two are not comparable.
If a soldier commits an offense in wartime, they would be investigated according to the Code of Court Martial Procedure, so it has already been established that the military can conduct impartial and independent trials.
Legislators must consider reinstating military trials, perhaps initially by reintroducing military courts and a military prosecution system. It would not only discipline troops, but also ensure the battle-readiness of the armed forces.
Chao Hsuey-wen is an assistant professor and holds a doctorate in law from Fu Jen Catholic University.
Translated by Liu Yi-hung
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