Introduction to Military Law and Justice System by Cpt Estep

8/13/2019 Introduction to Military Law and Justice System by Cpt Estep

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IntroductionHistory/Rationale for Military LawMilitary Laws:

British Military Code American Military Code Philippine Military Code

Persons Subject to Military Law Classification of Courts Martial and its General Application Composition of Different Types of Courts Martial


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Objective To provide students with a practical

framework on their study of Military Lawand justice


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History/Rationale

Courts-Martial

MILITARY LAW


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History/Rationale for Military Law*History points out the fact that nations have been engaged in wars.

With this, bodies of men have been organized into Armed Forcesunder a Commander in Chief, who enforces highest form ofdiscipline to ensure military efficiency.

*In ROMAN EMPIRE, Justice was administered by magistri militumand legionary tribunes, either as sole judges or with the assistanceof councils

*In EARLY GERMANS, in time of peace, judicial proceedings wereconducted by the Countsassisted byAssemblages of freemenandin time of war by the Duke or Military Chief, who usually delegates

his jurisdiction to the priest who accompanied the army.


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History/Rationale for Military Law*In FRANCE, Courts-martial were first established by an Ordinance

of 1955. Persons subject to French Military were under thejurisdiction of Mayor of the Palace, the Grand Seneschal (officer inthe household of medieval prince), the Constable and ProvostMarshall. Anglo- Norman system of administrationof justice wasadopted.

* In PHILIPPINES, Courts-martial were established by the

Revolutionary Army of 1896to enforce discipline. This system wasadopted from the Spanish court-martial system, which was ofEuropean origin.


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Military Laws*British Military Code

- military law existed in actual war during early periods;

- Articles of Warin the form of Military Orders or Directionswere issued to the army during war or during an expedition;

- Military law in time of peace existed thru the passing of theFirst Mutiny Act of 1689;

- First Mutiny Acthad a peculiar trait in that its operation waslimited to a term of about seven months. It was thenrenewed and the renewal became annual obligation for the

British Parliament;

- These annual enactment, later became so enlarged as toembrace about one hundred sections in 1878;

- The Act together with the Articles of War formed the body ofthe British Military Code.


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Military Laws*American Military Code

- Provisional Congress of Massachusetts Bay adopted itsArticles of Waron April 5, 1775 then similar articles wereadopted by the Provincial Assemblies of Connecticut andRhode Island and Congress of New Hampshire;

- Second Continental Congress in its session on June 14,1775resolved that a military force be raised to Boston. Congressthen appointed a committee to prepare rules and regulationsfor the government of the army. On June 30, 1775, the first

American Articles of War-Code of 1775- was enacted;

- On Sept 20, 1776, the Code of 1776 was enacted whichsuperseded the Articles of 1775. It was modified to adoptthe new form of government under the New Constitutiondesignated as the Code of 1806;


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Military Laws*American Military Code

- Several changes came that paved way to Articles of War inCodes of 1874,1916, 1920 and 1949;

- On Feb 8, 1949, a bill was presented to unite, consolidate,

revise and codify the Articles of War, the Articles for theGovernment of the Navy and the disciplinary laws of theCoast Guard and to enact and establish a Uniform Code ofMilitary Justice;

- On May 5, 1950, the bill was approved and a new Manualfor Courts-Martial based on the New Articles of War waspromulgated through Executive Order 10214, February 8,1951.


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Military Laws*Philippine Military Code

- Commonwealth Act No 408, the first military law enacted bythe National Assembly of the Philippines, approved onSept 14, 1938, consists of one hundred and twenty (120)articles and is the counterpart of American Code of 1928;

- Executive Order No 178, to implement the CommonwealthAct No 408 was promulgated on Dec 17, 1938, it prescribesthe rules of procedures including modes of proof in casesbefore the courts-martial, courts of inquiry, military

commissions, and other military tribunals in the Army of thePhilippines ;

- At present, the Commonwealth Act No 408 as recentlyamended by RA No 242and further amended by RA No 516,

is still the organic law of the Armed Forces of the Philippines.


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Persons Subject to Military LawThe following persons are subject to these articles and shall be

understood as included in the term any person subject to militarylaw or persons subject to military law, whenever used in thesearticles:

a. All Officers and soldiers in the active service of the ArmedForces of the Philippines; all members of the reserve force, from the

dates of their call to active duty and while on such active duty; alltrainees undergoing military instructions; and all other personslawfully called, drafted, or ordered into, or to duty or for training in,the said service, from the dates they are required by the terms of thecall, draft or order to obey the same;

b. Cadets, flying cadets, and probationary second lieutenants;

c. All retainers to the camp and all persons accompanying orserving with the Armed Forces of the Philippines in the field in time of

war or when martial law is declared though not otherwise subject tothese articles;


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Persons Subject to Military Lawd. All persons under sentence adjudged by courts-martial.

* Offenses committed prior to entry into service* Separation from service* Expiration of term of service

* Officer dropped from rolls* Dishonorable discharge does not relate to any

particular contract* Dishonorably discharged general prisoner still in

confinement amenable to trial by Court-Martial

* Retention in the Service of Reserve Officers forpurpose of Court-Martial

* Military prisoner under cumulative sentences


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Classification of Courts Martialand Its General ApplicationI. General Courts- Martial

II. Special Courts-Martial

III. Summary Courts Martial

Court-Martial an instrumentality of

the Executive Power Court-Martial a court of law Court-Martial strictly a criminal

court


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Classification of Courts Martialand Its General ApplicationGeneral Courts Martial

* has the power to try any person subject to military law for anycrime or offenses made punishable by Articles of War and any

person who by law of war is subject to trial by military tribunals;

* has the power to adjudge any punishment authorized by law orthe customs of the service, including a bad conduct discharge, andthat in Philippine Navy, general courts-martial may imposedeprivation of liberty on shore as a punishment and in imposing a

sentence of confinement may include in the sentence solitaryconfinement not exceeding 30 days or solitary confinement notexceeding 30 days or solitary confinement on diminished ratiosnot exceeding 30 days.


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Classification of Courts Martialand Its General ApplicationSpecial Courts Martial

* has the power to try any person subject to military law forany crime or offenses not capital made punishable by

Articles of War;

* shall not have the power to adjudge dishonorable discharge ordismissal or confinement in excess of 6 months, nor to adjudgeforfeiture of more than 2/3 pay per month for a period not

exceeding 6 months;


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Classification of Courts Martialand Its General ApplicationSpecial Courts Martial

* has the power to adjudge a bad conduct discharge in addition toany other authorized punishment provided that a bad conduct

discharge shall not be adjudged by special court-martial unless acomplete record of the proceedings of and testimony admitted bythe court is taken in the case and provided further that in thePhilippine Navy, special courts-martial may also impose deprivationof liberty on shore as a punishment and in imposing a sentence ofconfinement may include in the sentence solitary confinement notexceeding 30 days, or solitary confinement on diminished rationsnot exceeding 30 days.


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Classification of Courts Martialand Its General ApplicationSummary Courts Martial

* has the power to try any person subject to military law, exceptan officer, a cadet, a flying cadet or probationary second lieutenant,for any crime or offense not capital made punishable by Art of War;

* Provided, that con-commissioned officers shall not, if they objectthereto, be brought to trial before a summary courts-martialwithout the authority of the officer competent to bring them to trialbefore a special court-martial;

* shall not have the power to adjudge confinement in excess of 1 mo restriction to limits for more than 3 months or forfeiture or detention

of more than 2/3 of one months pay. Provided, that a punishmentand in imposing a sentence of confinement may include in thesentence solitary confinement not exceeding 15 days, or solitary

confinement on diminished rations not exceeding 15 days.


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Composition of the DifferentTypes of Courts MartialWho may serve on Court-Martial?

* All Officers in active duty in the AFP;

* Enlisted Personnel in the active military service of the AFP shall becompetent to serve in General and Special courts-martial for thetrial of the enlisted personnel or trainees when requested in writingby the accused at any time prior to the convening of the court andin no case, the number of enlisted men detailed exceed one-third of

the total membership of the court;

* Probationary Officer not competent to serve on courts-martial;

* Cadet not eligible to sit in Court Martial.


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Composition of the DifferentTypes of Courts MartialQualifications of members of the Court-Martial

In the opinion of the appointing authority, to wit:

1. Best qualified by reason of age,2. Training,3. Experience,4. Judicial temperament,5. Less than 2 years in service shall not, if it can be avoided

without manifest injury to the service, be appointed asmembers of court-martial in excess of the minoritymembership thereof,

6. Must not be an accuser or witness for either parties,7. Must not previously a member of the court,8. Must not be suspended from rank.


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Composition of the DifferentTypes of Courts MartialGeneral Courts-Martial

* consist of any number not less than five

* appointed by the President, the Chief of Staff of the Armed Forcesof the Philippines, and when empowered by the President, theCommanding Officer of a division, the Commanding Officer of amilitary area, the Superintendent of the Military Academy, theCommanding Officer of a separate brigade or body of troops;

* the authority appointing a GCM shall detail as one of the membersthereto a member of the BAR called LAW MEMBER, who shall be anofficer of JAGS or of some other branch of the service who is amember of the BAR and certified by the Judge Advocate General;


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Composition of the DifferentTypes of Courts MartialGeneral Courts-Martial

* no GCM shall receive evidence or vote upon its findings or

sentence in the absence of the LAW MEMBER;

* Senior in rank among the members present is thePRESIDENT/PRESIDING OFFICER of the court. He maintains

order, gives direction necessary for the regular and properconduct of the proceedings, takes proper steps toexpedite the trial of all charges referred for trial.


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Composition of the DifferentTypes of Courts MartialSpecial Courts-Martial

* consists of any number of members not less than three (3);

* appointed by the Commanding Officer of the Major Command, taskforce, military area, or division and when empowered by thePresident, the Commanding Officer of a garrison, fort, camp,brigade, regiment, detached battalion or squadron, or other

detached command, or place, zone or commissioned vessel wheretroops are on duty;

* any authority who can appoint GCM can also appoint a SCM.


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Composition of the DifferentTypes of Courts MartialSummary Courts-Martial

* consists of only one officer;

* appointed by the Commanding Officer of a garrison, fort, camp,or other place, where troops are on duty, and the CommandingOfficer of a regiment, commissioned vessel, detached battalion,detached company, or other detachment;

* may in any case be appointed by superior authority when it isdeemed desirable.


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Other Members of the GCM and SCM1. Trial Judge Advocate- primary duty is to prosecute in the name of

the people of the Phil and shall prepare therecords of the proceedings;

2. Asst Trial Judge Advocate- perform any duty devolved by law,regulations or the custom of the serviceupon the trial judge advocate of the court;

3. Defense Counsel- guard the interests of the accused by allhonorable and legitimate means known to the

law, undertake the defense, and represent theaccused, in the absence of his counsel of hisown choice,

- in the presence of the accuseds counsel,Defense Counsel, if the accused desires, act as

his associate counsel;


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Other Members of the GCM and SCM4. Asst Defense Counsel- perform any duty devolved by law,regulations, or the custom of the service upon

counsel for the accused;

5. Reporter- serve as stenographer, shall record the proceedings ofand testimony taken before such court;

6. Interpreter- serve as translator, shall translate questions andanswers given to him;

7. Clerk and Orderlies- assists the trial judge advocate and counselfor the accused


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IntroductionHistory/Rationale for Military LawMilitary Laws:

British Military Code American Military Code Philippine Military Code

Persons Subject to Military Law Classification of Courts Martial and its General Application Composition of Different Types of Courts Martial


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Documents

Introduction to Military Law and Justice System by Cpt Estep