Información Inglés
INTERVIEW
The Military Discipline is for the Armies, what powder is for the soldiers' boots. This means that the Military Justice is always near to the Army to ensure order and discipline. This is the vision of Rear Admiral CJ AP (r) Carlos Enrique Mesa Angosto, President of Supreme Court of Military and Police Justice. This jurisdiction has been issued in all Peruvian constitutions throughout history, and this is in the midst of a tough battle for to strengthen their institutions and thus, guarantee to Armed Forces and National Police Republic.
On next, there is a revealing interview about the challenge what this vital institutions face to national defense.
What is the current role of the Police Military Justice and which ones are the challenges to face?
Thank you for the interview. It gives me the opportunity to show what we are doing in Military Police Justice. The Military and Police Jurisdiction is independent of the Judiciary by mandate of Article 139 of the Fundamental Rule, which indicates that "it does not exist nor can it establish any independent jurisdiction with the exception of the military and the arbitration ones".
The competence framework of the Military Justice is located in Article 173 of the Constitution, within Chapter XII referred to the National Security and Defense, and its purpose is to administrate military police justice, in cases where members of the Armed Forces and National Police are guilty of function crimes. The Constitution has assigned to the Armed Forces and National Police transcendental functions to guarantee the defense, independence, sovereignty, territorial integrity, security and internal order of the Republic, as can be seen in the Constitutional articles 165 and 166.
The question that arises is: How do you ensure that these institutions fulfill their functions properly? To answer this question, we have to check out what American Court of Human Rights indicates (in Lori Berenson Mejia case v. Peru) and the Constitutional Court (Exp. No. 00454-2006-HC/TC), both have clearly stated that the punishment of function crimes, in the Military Justice is essential to maintain the state security, constitutional order and discipline in the military institutions.
Moreover, these Judicial Institutions affirm that Military Justice exist for the protection of special juridical interest related to the functions that law assigns to the Military Forces. Therefore, the Military Justice is necessary to preserve order and discipline in the Armed Forces and National Police, in order that these institutions properly fulfill with the valuable functions the Constitution has assigned them over the defense and security country. One of the main challenges that the Military and Police Justice currently face, is to preserve its institutions against ideologies, which trying to minimize its role and reduce its scope, have acted on a political level to get them out of context.
Which ones are the actions and threats against military police justice?
These are not specific threats, just politicized Non-Governmental- NGOs initiatives against the armed forces as a whole. Part of that power has affected the Military Jurisdiction, because if you thinking, what is the way to affect the system of the Armed Forces and National Police? The answer is just destabilizing its order, discipline and values. The purpose of these NGOs is eliminating to the Military Police Justice. For example, they have promoted many constitutional actions against us: they have sued the Organic Law and the Military Justice Code of 1980, the Law of Organization of Military Jurisdiction (Law No. 28655), the Code of Military Police Justice (Decree Legislative No. 961), among other regulatory bodies regarding military justice. In February this year, the Lima Bar Association filed a constitutional motion against 19 items in our current Law of Organization and Functions (Law No. 29182). On June 25 last, I represented the Military Police Jurisdiction, and sustained legal defense of our law related the case before the Constitutional Court. Currently, we are waiting for a fair sentence, which, for the quality and strength of our arguments, we expect it helps the strengthening of the Military Police Jurisdiction. (We have filed enough case law of the major agencies for the protection of human rights, such as the European Court of Human Rights, the Inter-American Commission on Human Rights, among others, that fully support our position).
What do you think about the situation faced by many military and police officers, who struggle against terrorism and as a result of its action they are tried in civil court?
This situation is very serious and is derived from the above. The military and police officers are subjected to extreme demands by the society and state. When we confronted with the enemies of order and peace, we have an obligation; to fight until to give our lives. This obligation is rooted in order and discipline, so when a soldier or police officer commits a crime within their institution or disrespectful to his superior rejecting his authority, or affect the rights of a subordinate, the crime are serious and their valuation and rebuke can only be assumed by the military police justice.
Similarly, this Jurisdiction is the responsible area to guarantee a fair and legitimate process in the military and police, who in their selfless mission are not exempt of committing excesses or breaking the rules of use of force. Then, in military Jurisdiction are their natural judges. However, it does not happen now because the Military Justice system has been weakened.
We do not argue that common crimes committed by members of law enforcement are tried in ordinary courts, but it is unfair that military personnel of the armed forces and police, who fighting in the battlefield being tried in that instance for their own acts, such as the use of their weapon in combat against the forces of terrorism and drug trafficking, which are undermining the stability of the Republic.
I know the cases of dozens of soldiers who have to be removed from their combat outpost to go to testify before a common judge, traveling miles by land and air. In that instance, the rights to justice and the process of military and police are very likely to be vulnerable, worse still, due to deadlines of judiciary, so the trial could take years and destroy a career, because trial can prevent the stuff keeps ascend.
So, the Military and Police Jurisdiction has a battle ahead. How are you handling the controversial subjects?
Our battle for the strengthening of the Military and Police Jurisdiction is trying to turn it into a solid institution that respect our Constitution and the Treaties on Human Rights, to ensure that our Armed Forces and National Police fulfill their function of defending and preserving the country's internal order. As part of this battle we have gone to all instances and national and international forums. For example, on last 24 March (2009), I went to Washington to defend our military jurisdiction against a request of the Legal Defense Institution (LDI) before the Interamerican Commission of Human Rights (IDH) in the 134th period of sessions. At that time, all the wrong arguments fell and we got that IDH Commissioners know our position and understand the important work we do, because there was a lot of misinformation about.
The LDI had created many negative myths about military and police jurisdiction, but our defense got to sustain that the Comission take a positive appreciation about us, until the point that the Commissioner Paolo Carozza questioned the LDI arguments, and the Commissioner Florentin Melendez said that the Peruvian Military Justice is a exemplary case for the continent.
What is the current situation in the Constitutional Court?
Likewise, before the Constitutional Court, we have fully demonstrated the Constitutionality of the Military and Police Jurisdiction, and thereby, erroneous arguments of demand of the Lima Bar Association were eliminated. They questioned specifically the existence of issues of military Justice when the Constitution is very clear in establishing that this must exist as an independent institution for Military criminal matters.
In this suit they also questioned, among other, that judges of military and police jurisdiction being military in activity because their compromises its impartiality to be subjected to a body. This has not objectivity at all. Throughout my career in the Military Justice of Peru, I have held positions like the President of Supreme Court of Military and Police Justice (twice), the Attorney General and Auditor General of Peruvian Military and Police Jurisdiction. Based on these experiences, I am convinced that it is necessary that judges of military jurisdiction are military, since the conditions and requirements of military life are different in nature of those ones from civilian life. It is essential that these judges are aware of the structure, procedures and others circumstances of the armed organization sort of what clearly justify the existence of military justice as independent jurisdiction. For that, this military experience allows military magistrates (judges and prosecutors) are in the ability to understand fully the crimes of the military profession, which benefits both, the accused and the armed forces.
It is important to indicate when I talk about the need that military judges are military, I mean service officers, lawyers from universities that have been assimilated into the military institutions. The European Court of Human Rights (Angel case against Holland), the Supreme Court of Canada, Michel Genereux case, against the Queen and the Constitutional Court of Colombia (File C-676/01) indicate that it is imperative the military jurisdiction judges are military, because all the knowledge and experience they have going to help them to exercise their judicial function effectively.
What would be your final thought?
Finally, I want to say that we are working to regain jurisdiction over all offense, function in order to military and police are judged by their natural judge and ensure that these member of the order fully comply with its duties of defense and preservation of order internal country, more so, when our country is still facing terrorism and has serious internal troubles that destabilize the Republic. I am also proud to say that the Peruvian Military Justice has advanced significantly from the perspective of human rights and respect to the Peruvian Constitution and the American Convention on Human Rights, which, as we have seen before, it has been recognized in American Commission on Human Rights.
I would like to conclude with this thought of Heraclitus: "The sun cannot go beyond its limits. If it make it the anger of justice servants would stop it, the person cannot go beyond the ethical rules neither, because this is intolerable and unacceptable". Therefore, in my capacity as President of Supreme Court of the Military and Police Justice, my ethics values always are pushing me to fight for autonomous military justice, independent, impartial and respectful of the Constitution, laws and human rights.
