MILITARY LAW AND JUSTICE SYSTEM OVERVIEW I. II. History/Rationale for Military Law Military Laws: British Military Code American Military Code Philippine Military Code III. Persons Subject to Military Law VI. V. Classification of Courts-Martial and its General Application Composition of Different Types of Courts-Martial VI. ARTICLE OF WAR I - HISTORY History points out the fact that nations have been engaged in wars. With this, odies of men have been organized into Armed Forces under a Commander in Chief, who enforces highest form of discipline to ensure military efficiency. In ROMAN EMPIRE, Justice was administered by magistri militum legionary tribunes, either as sole judges or with the assistance of councils and In EARLY GERMANS, in time of peace, judicial proceedings were conducted by the Counts assisted by Assemblages of freemen and in time of war by the Duke or Military Chief, who usually delegates his jurisdiction to the priest who accompanied the army. In FRANCE, Courts-martial were first established by an Ordinance of 1955. Persons subject to French Military were under the jurisdiction of Mayor of the Palace, the Grand Seneschal (officer in the household of medieval prince), the Constable and Provost Marshall. Anglo- Norman system of administration of justice was adopted. In PHILIPPINES, Courts-martial were established by the Revolutionary Army of 1896 to enforce discipline. This system was adopted from the Spanish court-martial system, which was of European origin. II - MILITARY LAWS British Military Code - military law existed in actual war during early periods; Articles of War in the form of Military Orders or Directions were issued to the army during war or during an expedition; - Military law in time of peace existed thru the passing of the First Mutiny Act of 1689; - First Mutiny Act had a peculiar trait in that its operation was limited to a term of about seven months. It was then renewed and the renewal became annual obligation for the British Parliament; - These annual enactment, later became so enlarged as to embrace about one hundred sections in 1878; - The Act together with the Articles of War formed the body of the British Military Code. American Military Code - Provisional Congress of Massachusetts Bay adopted its Articles of War on April 5, 1775 then similar articles were adopted by the Provincial Assemblies of Connecticut and Rhode Island and Congress of New Hampshire; - Second Continental Congress in its session on June 14,1775 resolved that a military force be raised to Boston. Congress then appointed a committee to prepare rules and regulations for 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 which superseded the Articles of 1775. It was modified to adopt the new form of government under the New Constitution designated as the Code of 1806; Philippine Military Code - Commonwealth Act No 408, the first military law enacted by the National Assembly of the Philippines, approved on Sept 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 Commonwealth Act No 408 was promulgated on Dec 17, 1938, it prescribes the rules of procedures including modes of proof in cases before the courts-martial, courts of inquiry, military commissions, and other military tribunals in the Army of the Philippines ; - At present, the Commonwealth Act No 408 as recently amended by RA No 242 and further amended by RA No 516, is still the organic law of the Armed Forces of the Philippines. III - PERSON SUBJECT TO MILITARY LAW The following persons are subject to these articles and shall be understood as included in the term “ any person subject to military law” or “persons subject to military law”, whenever used in these articles: a. All Officers and soldiers in the active service of the Armed Forces of the Philippines; all members of the reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully 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 the call, 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 or serving with the Armed Forces of the Philippines in the field in time of war or when martial law is declared though not otherwise subject to these articles; d. 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 for purpose of CourtMartial * Military prisoner under cumulative sentences VI. Classification of Courts-Martial and its General Application I. General Courts- Martial - has the power to try any person subject to military law for any crime 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 or the customs of the service, including a bad conduct discharge, and that in Philippine Navy, general courts-martial may impose deprivation of liberty on shore as a punishment and in imposing a sentence of confinement may include in the sentence solitary confinement not exceeding 30 days or solitary confinement not exceeding 30 days or solitary confinement on diminished ratios not exceeding 30 days. II. Special Courts-Martial - has the power to try any person subject to military law for any crime or offenses not capital made punishable by Articles of War; - shall not have the power to adjudge dishonorable discharge or dismissal or confinement in excess of 6 months, nor to adjudge forfeiture of more than 2/3 pay per month for a period not exceeding 6 months; - has the power to adjudge a bad conduct discharge in addition to any other authorized punishment provided that a bad conduct discharge shall not be adjudged by special court-martial unless a complete record of the proceedings of and testimony admitted by the court is taken in the case and provided further that in the Philippine Navy, special courts-martial may also impose deprivation of liberty on shore as a punishment and in imposing a sentence of confinement may include in the sentence solitary confinement not exceeding 30 days, or solitary confinement on diminished rations not exceeding 30 days. III. Summary Courts Martial - has the power to try any person subject to military law, except an 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 object thereto, be brought to trial before a summary courts-martial without the authority of the officer competent to bring them to trial before 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 month’s pay. Provided, that a punishment and in imposing a sentence of confinement may include in the sentence solitary confinement not exceeding 15 days, or solitary confinement on diminished rations not exceeding 15 days. • • • V. Court-Martial an instrumentality of the Executive Power Court-Martial a court of law Court-Martial strictly a criminal court Composition of Different Types of Courts-Martial Who may serve on Court-Martial? - All Officers in active duty in the AFP; - Enlisted Personnel in the active military service of the AFP shall be competent to serve in General and Special courts-martial for the trial of the enlisted personnel or trainees when requested in writing by the accused at any time prior to the convening of the court and in 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. Qualifications 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 as members of court-martial in excess of the minority membership 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. A. General Courts-Martial - consist of any number not less than five - appointed by the President, the Chief of Staff of the Armed Forces of the Philippines, and when empowered by the President, the Commanding Officer of a division, the Commanding Officer of a military area, the Superintendent of the Military Academy, the Commanding Officer of a separate brigade or body of troops; - the authority appointing a GCM shall detail as one of the members thereto a member of the BAR called LAW MEMBER, who shall be an officer of JAGS or of some other branch of the service who is a member of the BAR and certified by the Judge Advocate General; - 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 the PRESIDENT/PRESIDING OFFICER of the court. He maintains order, gives direction necessary for the regular and proper conduct of the proceedings, takes proper steps to expedite the trial of all charges referred for trial. B. Special Courts-Martial - consists of any number of members not less than three (3); - appointed by the Commanding Officer of the Major Command, task force, military area, or division and when empowered by the President, the Commanding Officer of a garrison, fort, camp, brigade, regiment, detached battalion or squadron, or other detached command, or place, zone commissioned vessel where troops are on duty; or - any authority who can appoint GCM can also appoint a SCM. C. Summary 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 Commanding Officer of a regiment, commissioned vessel, detached battalion, detached company, or other detachment; - may in any case be appointed by superior authority when it is deemed desirable. Other Members of the GCM and SCM 1. Trial Judge Advocate - primary duty is to prosecute in the name of the people of the Phil and shall prepare the records of the proceedings; 2. Asst Trial Judge Advocate - perform any duty devolved by law, regulations or the custom of the service upon the trial judge advocate of the court; 3. Defense Counsel - guard the interests of the accused by all honorable and legitimate means known to the law, undertake the defense, and represent the accused, in the absence of his counsel of his own choice, - in the presence of the accused’s Counsel, if the accused desires, act as his associate counsel; counsel, Defense 4. 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 of and testimony taken before such court; 6. Interpreter - serve as translator, shall translate questions and answers given to him; 7. Clerk and Orderlies - assists the trial judge advocate and counsel for the accused VI. ARTICLE OF WAR (TITLE III – PUNITIVE ARTICLES) A. ENLISTMENT; MUSTER; RETURNS ART. 54 ART. 55 ART. 56 ART. 57 - Fraudulent Enlistment Officer Making Unlawful Enlistment False Muster False Return – Ommission to Render returns B. DESERTION; ABSENCE WITHOUT LEAVE ART. 58 ART. 59 ART. 60 ART. 61 ART. 62 - Certain Acts to Constitute Desertion Desertion Advising or Aiding Another to Desert Entertaining a Deserter Absence Without Leave C. DISRESPECT; INSUBORDINATION; MUTINY ART. 63 Congress of ART. 64 ART. 65 ART. 66 Officer ART. 67 ART. 68 ART. 69 Disrespect Toward the President, Vice President, - the Philippines, or Secretary of National Defense Disrespect Toward Superior Officer Assaulting or Willfully Disobeying Superior Officer Insubordinate Conduct Toward Non- Commissioned - Mutiny or Sedition Failure to Suppress Mutiny or Sedition Quarrels, Fights, Frays and Disorders D. ARREST; CONFINEMENT ART. 70 ART. 71 ART. 72 ART. 73 ART. 74 ART. 75 - Arrest or Confinement Charges, or Action upon Refusal to Receive and Keep Prisoners Report of Prisoner Received Releasing Prisoner without Proper Authority Delivery of Offenders to Civil Authority E. WAR OFFENCES ART. 76 ART. 77 ART. 78 ART. 79 ART. 80 - Misbehavior Before the Enemy Subordinate Compelling Commander to Surrender Improper use of countersigns Forcing a Safeguard Captured property to be secured for Public Service ART. 81 ART. 82 ART. 83 - Dealing in Captured or abandoned property Relieving, Corresponding of With, or Aiding the Enemy Spies F. MISCELLANEOUS CRIME AND OFFENCES ART. 84 ART. 85 Issued to ART. 86 ART. 87 ART. 88 ART. 88 ART. 89 ART. 90 ART. 91 ART. 92 ART. 94 ART. 95 ART. 96 ART. 97 ART. 105 - Military Property – Willful or Negligent Loss, or Damage of Wrongful Disposition Waste or Unlawful Disposition of Military Property Soldiers Drunk on Duty Misbehavior of Sentinel Personal Interest on Sale Provisions Awfully Influencing Action of Court Intimidating of Persons Bringing Provision Good Order to or Maintained and Wrong Redressed Provoking Speeches or Gestures Dueling Various Crimes Frauds against the Government Conduct Unbecoming an Officer and Gentleman General Article Disciplinary Power of Commanding Officers
