Military tribunals in a democracy

Media

Part of Philippine Armed Forces Journal

Title: Military tribunals in a democracy
Language: English
Source: Philippine Armed Forces Journal Volume IX (No. 6) July 1956
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Fulltext: MILITARY TRIBUNALS In A Democracy By Major Claro Gloria, JAGS l OR deeadesafterthep:rssagc of Commonwealth Act 408 known as the Articles of War and even after the t·ecl"'ll enactment of the Umform Code of Military Justice in the United States, cntics have been ponoation of thio hntiu btlonu to 1ho dvil Muiouato and lot it ovrr br nur pride and our I'Lory to lu•• tho ... ,,d dopooit thuo unYiolated . I U.S. Military Courts In spite of the criticisms aC"aimt th~ military Jaw, still the practical demonstration of the principles of outspoken a!; to the accusation America-n democracy has found am· that the military law has nevet· been ple expression in the Unitt>d States the product of a serious thought and Militat·y Courts created nut •Jnly retrospection. Hence the defects within but also beyond tht! contihe!t!tOfore noted m tho: law still sub nental bounda1·ies, in pursuance of sist. This Cl"lllcism might have ar1s. the law. Not only havt' tht-st- cou1ts en fro"m the seeming indifference of enhanced milita1·y disciplim: to the the FilipuloS as well as the A mer h1ghest le,·el; they havt! as wt•ll preican people to things military, trained se1·ved the rights of the iudivi1\ual as they a1e in the best democratic in a democracy; and have devdoped ideals under a govemment to which themselves into an effective agency in all eases the milita1·y is under in the administration of justice, both strict subordination to, and governed at the home front and abroad 111 ocby, the civil authorities. Or, it cupierl teiTitories. might be a revindication of the great Dunug the past I ::SO years, the ideals of Washington when at the Umt<>d States Government ha~ "11 timt' of the Whiskey Rebellion he gaged in thirteen majo1· occupations: stated: Florida; the Confederatt> States; .:o•u~':.n:••;:,!~~~. "t'h~<l:~:!in:!. : , '::: :!~xi~: .. ~~i1l~~~~ne~~b~~e P;he;';~:liU:~;; :ili!:::b.:" .~~·-:u~u"• :~/«!,"~0 ,.!~~~tl~~ Japan; Korea; Austria; Italy; and loun~ in •rmo in oppuition to t h< N•· tion•l "Ill •nd aulhority; .. <on~ly. to aid and oupporl th• <i•il i'<h~;iottalf in LHW<Il. National :i<>cm·ity lln<l lndivlduod !>Jin~in.- oU<ndus '" hutl<f. Th< dio- ~-,·.,cdon> •1950~. I>· 61 PHILIPPINES ARMED FORCES JOURNAL A Couri-MorlicrJ proceeding ;, typified in the picture abo•e The caurueli tobJe and the •ight al Jtenagrapher< ta/cing dawn nate• a/ th• pracuding are nat dilferent /ram thaJe in the civilian caurt. Sut unJih the ardinary caurt trial, the Caurt·Marflal i• pr••id• d over by military aflicerJ well ver>ed in military Jaw Germany. 2 In the exercise of mili- more deeply analyzed, it becomes ap. tary government in these occupied Parent that such government redounds territories, the usual functions of more to the benefit of the people government being suspended, the of the occupied territory ovCT which military commander of the victori- it is organized. Without it they ous forces was empowered to organ- would be left at the mercy of a doize military tribunals through which minant military, which, due to conthey protected their security anJ fusion or through mere want of sysmaintained law and order.l tern, might rule them with oppression or undue harshness. But where Military Cour.ts ~n Occupied a military government is established Terntones . in an occupied territory, so long as On . t_he surface, the est.abhshme~t the people conform to the will of the of mrhtary government rs consr- military authorities of the'' occupydered to be for the adva~tage of the ing forces who are now their new army. . But ~hen the cr_rcumstances rulers, they are left unmolested in under\yrng rt;; estabhshment are ordinary domestic and business rela2 Nobleman, American Militer7 Go•ernment tions, and largely in municipal af. ~~-:~~~.~~ ~:;:;~"~: ~~ Annelo, Vol, 267 !:~~~SS~O~e or~~;en~:~e~~ent~isto fo~~ ~;;~ei;:~· ~~~~~~~ r>-Go;~~"""'"t and Mi- o; government is the military law 1. JULY USt acting through its ageney, the mi- punishment of offenders against military courts. litary government and German law. The importance of these miiitary The role which the Military Gov· courts is co--extensive with the de- ernment Courts played in the vecu. mands of civilized societies; they pation of Germany constituted ::1. have become the safeguard of the somewhat complete depaTture :[rom people of the occupied territory; that traditional purpose and func. they are a necessary concomitance tion. 7 for efficient military control, and In September 1944, a new system they have immeasurably become the of tribunals was established by the true dispenser of justice over all American forces as socn as they oc· lands under the military govern- cupied the land. The establishment ment. of military tribunals was predi.:;::~.::d Application of Military Government upon the theory that eleven years of Limiting the subject to the exist· Natiomrl Socialism and five years of ence of war, a situation is created war had reduced the German judiin which due to the conduct of war, ciary to such a feeble and corrupt there may be occasion for the mili- state that it could not be trusted. tary commander to occupy and go. But the main purpose, as it was ap. vern conquered territory, and to ad- pa1·ent, was to reconstruct a denazi. minister a form of government sup- fied German judicial system based on planting that of the enemy. Such American democratic principles.• occupation ll'l'ld administration is called the government of military Courts and Jurisdictions occupntion, or "military government" In occupied Germany the United which derives its authority from States military authorities estabthe la'-hs of war.s . . lished military government courts of The true test of mil1tary occupa· three types, namely: tio~ is e~~lusive possession. And to (1) general courts, empowered to e~t-ltle ~ml~tary government to recog- impose any lawful sentence, includmtw_n 1t IS necessary th~t the au· ing death penalty; th01."1ty of ~he State to wh1ch the oc- (2) intermediate courts, with aucupled territory belongs. should have thority to impose any lawful sen· cea~ed there to be exerc1sed.t tence up to and including imprisonSmce September 1944 up to the ment for years and/or fines not ex. reeogniti~n of Western Germany as ceeding $10,000; and a sov_ere1gn st_~e on May 5, 1955, (3) summllTy courts, authorized to Amencan M_1htary . Go vern~ent impose any lawful sentence up to Courts functioned m the Umted and including imprisonment for one States zone of Germany for the pro- year and/or fines not exceeding tection of the Allied Forces and the 6~;, Mll!tary Law and the Procedure 7 Nobloman, A.modun MUU .. r Government of Courta-Martlal (1901). p. 300. Court& In Germanr, The Anna)o, Vol. 267 6 Blrkhelmer. Mllltarr Government an.d Mar- (.)"anuan. 1950). p. 81. tlal Law 01192). p. 21. ~ Ibid., at p. 88. PH ILIPPISES AIIM!c:O f"ORC£8 JO URNAL ( Sl,OOO.~ Allied forces, if he were not otherUnder Military Government Ordi. wise represented; (5 ) to bring wi th nance No. 2 military government him to trial such material witnesses courts were given jurisdiction over in his defense as he mlR:ht wish, or all offenses committed by pf'rsons in to have them summoned by the court the occupied a1ea with the exception at his request, if practicable ; {6) to of mem'><>rs of the armed forces of apply to the court for adjournment lhc Allied Nations and the enemy. where necf'ssary to enable him to pre. In view of the indefinite suspens1 on pare in his defense; {7) to have the of the German CoUJ·ts upon the oc- proceedings transllrted when he was cupation of Germany by the Allied otherwise unable to understand the forces, the jurisdiction of the United language m w_hich they were conducStates Military Government Courts ted; (8) and tn the event of convJC· •·:..:tended not only to all violatiOns tion, to file a petition set:ing forth f military go\'ernment Jaws, but to the grounds why t he fi~dtnts and a J offenses against German Jaw as sentence should be modtfied or set weJllO as1de.ll ' Right of Subjects Fairni.'SS and lndepl.'ndenc~> Stressed Ordinance No. 2 provided also thl'lt !J, upholding the hllsic safefl•.>aJds The Constitution, in its Bill of Rights, provides that ·No person shall be deprived of life, liberty or property without due process of law.' Courts-martial exist to determine the guilt or innocence of soldiers charged ce1·tain fundamental rights were to he of American democracy, the importafforded to all persons appearing be- ancc of fair treatment of all' Ge1·man fore military government courts. defendants gppearing before military Some of the rights gum·anteed wert-: govemment courts was stressed. Thus, (1) the right of the accused to have, on J uly 16, 1947, the Office of Milit. in advance of trial, a copy of the ary Government for Germany issued charges upon wh1ch hr was to be the followmg diJ·ective ~ettinjZ forth uied; (2) to be present at his trial, the fundamental principles to be adto give evidence, and to examine or herred to in the trial of cases by milicro~s-examine any witness; (3) to t1rry government courts: consult a lawyer before trial and to conduct his own defense or to be ;·epresented by a lawyer of his own choice; {4) in any case in which a sentence of death might be imposed, to be represented by an officer of the ~ Ibid. 10 I bid. 11 lbld .. pp.88·89 1l lbid.,At!'.9L ~ .. ~:; · ~-r~~~';;~lr~~~ai" M.'N'~r:.;~S:tr~~~~! ronlorm to the tradltlonal p roce d uru of Amulun law whlr h aPPIJ whene•·or the life. Iibert)', " ' prope•t)' of an individual aro oubjected to penal protoduro. Llkowlu •••11 effort mul bo modo, .,.lth• In tho objortluo of the Octupulon, to ru pee! tho ~ru a nn tlu of po raonal rilfhlo provided b1 Gorman Con otlt ~ :lo no. Th oGlt f11nc lion ol o•·e., MIIIU r)' Go .. r nment Court lo to ~r h-o juatlu in o•ery <au beforo It attordlnr In tho law and !h nldonto 12 Among the fundamental principles into direct contact: and third, they laid down were thE: nt:cessity for the have constituted, until recently, the indepcndt:nc~ of the court,;, the re. only graphic means whereby the peoquirement of due process of law and pie of Germany have been able to a speedy and public trial, and a pro. test the manner in which their newly hibition 81o!'atnst double jt:"opat·dy. tl acquired democratic t·ights and safeIn line with thts basic concept of guards afford them actual protection , American democracy the dit·ective in the course of their daily lives. u concluded: The Occupation Forces of the UniAmorlun Mllitorr Gn•·Hnm~nt mutt, to tho mulmum do~rroe, uordso Ill Kourn· mont poworo ucordlnf to domo<rotlo :;~r;::!~~""c::,dt1 p~;;o1~·~~nst~i~it:~~ ~:~ o:ont•ct with tho German p•nple. Their octiono ort ~onoiderod br tho German penpit u tht ot•ndord of Amorlun Jutloo. Thoreforo tho pro<oodlnro and JudRmonll of Mlllt..-r Go•·•rnment Courh muot oon· for"' to tho prinolpln of d11~ prncuo, protoctondenforoothorifht•o•w•llu tho rooponoihilitiu of tho indhlduol, ond provo tn tho Gumon pooplo tho uuntlol folrnno ond 1<111ndnuo M tho dom<J(Crotlo Judldol J>f<J(CUS. U ted States have found the preparation of the German people for a de· mocratic way of life extremely difficult. However, no one can deny the fact that the Mi!itat·y Government Courts have done much to win the confidence of the German people and have provided the practical demons. tration of American democratic pt·inciples. These courts have ultimately developed into the foremost example of "democracy m action."te Military Courts Diueminale Undue Fear of Military Democracy in a Democracy From the foregoing, it is not dif- And yet people living in a demoficult to state that the Amet·ican Mili- cracy have the constant fear that the tary Government Courts have played military may rise someday to subdue a more important role in the dissemi. the l'ights guaranteed by the Constination of democratu: ideals and prin· tution. The fea-t· is without foundaciples to the German people than any tion. othet· military govemment operation. In a part of his decision in the Three fado!'s are considet·ed m the case of United State1.1 v. Lee, Justice advancement of democt•acy in Get· Miller stated that no man is so high many: first, military government that he is above the law. No officer courtt·ooms have been the only places of the law may set that law at deftin Germany where large numbers of ance, with tmpunity. All the officers German people have been able to of the Government from the highest watch Americans at work; second, to the lowest, are creatures of the military government courts an: the law and are bounrl to obey it. It is only agencies of military gove1·nment the only supreme power in the system with which the Germans of all clas. of a democratic government, and ses and strata of soctety have come every man who, by accepting office, ' partictpates in its functions. is only 13 Ibid. 14 Ibid. IS Ibid., p. U. the more strongly bound to submit tn 16 Ibid .. p. g;_ PHILIPPINES ARMED FORCES JOURNAL v the supremacy, and to observe the li- the highest levels of command, are mitations which it imposes upon the under the rule of law - be it muniexercise of the authority which it cipal k'\1: or international law. That gives. n is tl.e main foundation of the power The foregoing view dearly indi- of the Supreme Court relative to the cates that the protection of funda- military establishment - that the mental rights against lrTIY form of Supreme Court has the highest naencroachment on, or extinction by, any tiona! jurisdiction, that is, the right governmental agenc.y, is one of the to SlfY what the rule of!aw is as it purposes of the American constitu- applies to the armed forces. '8 tiona! s:,ostem to which the Govern- In support of this principle, notment of the Philippines fully sub- withstanding the independence of miscribes. At times, however, there litary tribunals, the ri~rht of the seems to be a growing apprehension Supreme Court b determine ques. by the militant civil power that the tiona of jurisdiction is an adequate militSTy is transgressing the suprem- safeguard against undue extension of acy of the law and extinguishing the the authority of military courts over liberties of the people. That has been military penonnel and certain rh•sthe renon why those who advocate ses of civilians. The fact that the the supremacy of the civil authori- Supreme Court renders the final deci- 'If" ties fully agree in the doctrine that sions relative to the competence of t he military should always be kept in military courts in certain cases indisubjection to the laws of the country cates its great power for restraining to which it belongs, and that "he is military .nnthority from improper exno friend of the Republic who advo. pansion of its jurisdiction - even in cates the contrary." They believe till'!es of national emergency. that t'te established principle of every Civil Rights Not Abrogated free peopl~ is, that the law alone shall The role of the military commisgovern and kl it the m'lit~rry must sion in the administration of justice always yield. II -and the court-martial or other form Military Court• Subject of military tribunal for that matter to Supreme Court - shows that in no case did the mili. The truth of this doctrine is never tary assert power without sanction doubted. But analyzing the role of of the law. It has been more than the military in relation kl other gov- amply demonstrated that ihe proper ernmental agencies, the much feared civil court restrains milita1:y agents of "dominant establishments as is the from injurious actions against civil case with all branches of government rights. It also restrains the civil auin any democratic state as the United thorities from whom the milita1·y States are under the law. All mem- ageTJ.ts receive orders, from directing bers of the arme~ forces, from the them to execute those orders, if they lowest enlisted persomoel up through are beyond the pale of the law. "The 17 U.S. v. W. 106 (1882). \9~th. American Oemoc:racy and Millta· 18 Dow v. Johnoon. 1011 U.S. 169 (18,7). r)' Power (1961), p, 168 D~tp<><totion of undt~iroble oli•nr ir one of l~e in~trtnl .oow•n of o slot• Thus, when on olien pOSitS don51et to inl~trnol oecurity of o otollt, no powltt on eott~ con pr•venl ~;, de,odotion. T~i• ir n•c•uoty for ••lf·p•t"rvotion 8ut notwirh,tondtn51 thi>. ltk" I~• citizen in on ordinory court octlon, on ofien is 51i•en t~e opportunity to be heord ond repteoented by coun<~tl in the proceeding to depod ~im. Above photo •howl o w e//.gu~rd•d stuion of th• DeporloltOn Soard prohibitions of Ex parte Milligan, Congress has given them through vaSterling v. Constantin, and Duncan rious legislations. Where peace ex11. Kahanomoku were aimed at the ists the courts function in accordance military, but they were also meant to with the Jaws of peace. But in times restrain the civil authority from us. of war they function under the laws ing the military arm to commit exces- of war. No better attribute can jusses against the great and historic tify the role of these courts than rights of Americans." :zo what Chief Justice Chase states in The foregoing study on the role of Ex parte Milligan: the military government courts in the system of American democracy is merely a reiteration of the great as· sertion that wherever these cout ts are established they adhere to all consti. tutiona\ precepts and exercis~ •heir authorities in accordance with what There are •ndor lh~ Cenotit111lon three kindo of mllitarT julodldlon : one to be uerdoed both in puu and war: anothtr to be uerdoed in time of foreip war with""! the bo11ndarlu of the Unite<! St•tu. or In time of rebellion •nd ch·il ..., within otatu or dlotrich oc.-.pled b1 robelotruttd u bellluronto: •nd a third to be ner<iHd In time of lnvaolon or in111rrectlon within the limlto of the Uni"d Statu.ordorln .. rebellionwlthlntheli· mill nf llalu maintalnln .. adhulnn In th Notional C"o<~vornment. when the Pllhll~ d•n~u r~q•iru it~ uenioo. Th~ lirot al thu• may bt called Jur!odlrtton undu MlUTAtn• LAW, and io la11nd tn oct.~~ ('nnuu• pru.,rtbina rulu ond artirln nf • ·ar. or othorwriM pro• idinr far th~ anvornm<nt qf t hr natiBnal forru; th~ M<nnd mo) bt dioUnA"IIilhtd at MIL.ITA· RY (;0\'•:RNME:NT, MIPUHdinK, U lor •• mo) bt d«mt d upedlont, th lnul Ia•. •nd our<iud by tho military rom· mander undu tho direction of the Pre.· ldenl, with th upren or implied san<• tlon nl f'nn~r ruo; ""hllo tho third may bt d<nominated MARTIAL LAW PIIOP· •:n, and I• ulled into acllan by f'nnare-.. or temP<>rarlly, .. hen the octlon <>I Cnnareu unn<>t bt '"''''"· and tn 11••u ... ol Jutifyin, or nnuinr peril, hy tho Pro•iMnt, in timeo of lnourreotion nr in•ooinn, or " ' rhil or foni1rn ··~r. •·Jthin diouir .. nr loralitiu whore nrdinorY lo•· nn lnnA'<r adoquately ••ruro• Pllblir aolety and private riA"hl._ We think that th i>O""tr of Conaruo, in oo.rh t imu and '" ourh IO<"alitiu, to utthoriu trials for crtmu uoin n tho ouurhy and tofUJ of th national forru, may bt d<rhrd frnm iu oonotitutionol authority tn rol•• and O IIPPOfl ocmlu ond t.. derlore •·or, tf not fr<>m Ito ronotihlllonal outhoril)- fn proddr f~r ~o• · rtnin• !h n•tion•l fo•~•• f! Conclusion Under the great democratic system of government, therE"fore, then• ;;hould be no apprehension that thf' m1htar~· would likPJ~ abus~ its authorities. ThP power and, therefore, bcyonrt the pale of the judicial and lt>g:i~lative branches of the go,·ernment, woulrt alway!! respt>Ct the sanctit~· of the law under which they derive their power, and uphold the g:reat mamlatel\ of thl' Constitution. Fot·t1fied and •tJ·eup:thened b~· yeat·~ of ••xJwnf'nr•·. thCSI' courts will continur tn r•lay un important role in J)l'CSct"\'1111! out· 1dnl.<= and princ1plt>s and 111 streng-thening the faith and d111:nit~· of all frt·c mPn living in a rh•mocracy. PHILIPPINES AR~'IIm FORCES JOURNAL f} \boul lhe .-\uthor Ma{or Gloria Major C/nro ('. Glori<l i.~ at J!rt"tllt rhainnan Board of Revitu· ';1 fNo. 2!, Offire of T lte Jur/,gt. Ad· t'Ol"llte Genernl, AFP, nml a p<trt time professor of /au· tGraduo te Stiulie:<J, Frwnri.~co LoJ•• Srhool. A l1older of A.B., B.S.E. nnd LL.B. degrees and membaof the Bar, ht' wa.q formerly Staff .T"rlflt Arlt·n_ rate of 1he PltiliPI'i"'• Co11!'fnb"l· nry, the Philippine Grounrl Forrr, the PEFTOK ff!Oth BCT1 1111d the Philippine A rmy Tnri11inp Com· ma11d. He i~ 11 [ITI!duutt of Officers Admini~fTn.fwll. F,rt Ogft· thorpe, Georgifl, !9.i.5. f11 1950 /11• finished LLM. fm file fieltl rJf Criminal a11d Consritutionaf )..ows1 nf fl•t Indiana U,.;,.,.r•it y, B'loon,;,.fl ton. lndirt11a, a11d r<lll!pletl'rf LL..lf. rinthefieltloflnt•·rmJfio.tnl/..,aw r i" 1.955 at the HuT!'ord Univtrsify. C11mhrirlge. Mass. H e iJI 1he artfh. or nf Re~·er11.l publi.~hed legal urt•d'" rittd i1l the r~riot/i("n/ htrfr;r nf AtiiFrirn.