News reports said that the government is considering the reintroduction of military courts, using the US military justice system as a model. The basic idea of having a military justice system is, of course, not particularly controversial, since many countries continue to have military courts, even in peacetime. However, the question is what the structure for a military justice system should be.
Taiwan should follow contemporary best practices. Indeed, if it reintroduces those courts, it should take a progressive stance rather than doing the bare minimum permitted by human rights standards. A good place to start is the 2006 UN draft Principles Governing the Administration of Justice through Military Tribunals, which was updated in 2018, although there is no reason Taiwan should not be a leader in the field and go even further.
Here are some suggestions that Taiwanese authorities might want to consider, rather than adopting the US or any other national “lock, stock and barrel” model:
The scope of military court jurisdiction should extend only to active-duty military personnel and reservists. Retirees, veterans and civilians should not be covered. It should be limited to offenses that have a clear nexus to military service. Offenses that have no direct and substantial “service connection,” such as crimes committed off-base, should be tried in civilian court. In principle, if an offense can be tried in a civilian court, that is where it should be tried.
Judicial independence should be strictly guaranteed. That means that at the very least, presiding judges should be trained lawyers with substantial fixed terms of office, and removable only for misconduct or disability. The term of office should be the same as civilian judges’. In addition, Taiwan should seriously consider using civilian judges rather than military officers. That is what the UK does and the system has worked well.
Decisions on who should be prosecuted for which offenses should be made by trained prosecutors who are independent of the chain of command, rather than by non-lawyer commanders. The US recently made that change for many serious crimes, and should have done so for all such offenses. Taiwan should follow the contemporary UK model, rather than the outmoded US model.
News reports on the possible direction of new legislation indicate that the people who wrote the draft are aware of the need to guard against unlawful command influence. That is critical in fostering independence and public confidence in the administration of justice in the armed forces. The new legislation should make it clear that the prohibition on unlawful command influence has real teeth and applies not only to military commander, but also to everyone in the military justice system, as well as civilian officials, including legislators.
Minor offenses, such as absence from duty, uniform contraventions or disrespect should be subject to administrative punishment by commanders, but such punishment should not include deprivation of liberty. There should be meaningful rights of appeal, including the right to consult an attorney.
Finally, military court cases should be appealable to the civilian courts, including to the highest court, to the same extent as civilian criminal convictions and sentences.
Before Taiwan commits to a blueprint for a revived military justice system, it should carefully review the available contemporary models and consult widely to achieve a system that meets or exceeds contemporary standards and acknowledges the country’s challenges.
Eugene R. Fidell is visiting lecturer in law and senior research scholar at Yale Law School. He served as a judge advocate in the US Coast Guard and cofounded the National Institute of Military Justice. He is the author of Military Justice: A Very Short Introduction.
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