UNCONSTITUTIONAL PROVISIONS IN THE DEFENCE ACT

A number of provisions in the current Defence Act may well be unconstitutional, not to mention executive or administrative action in terms of certain provisions. In terms of section 98(2)(c), the Constitutional Court will have sole jurisdiction over the constitutionality of provisions of the Defence Act. In terms of section 98(2)(a) and (b), and section 101(3)(a) and (b) both the Constitutional Court (in general) and a provincial and local division of the Supreme Court (within its area of jurisdiction) will have jurisdiction in respect of violations of any fundamental right in Chapter 3, or any dispute over the constitutionality of any executive or administrative action.

It must be borne in mind that the provisions of Chapter 3 are not absolute. Section 18 (the right to freedom of movement) does not mean that every person may, as of right, enter sensitive defence facilities like operations centres or radar installations. Section 11 (prohibition of cruel, inhuman or degrading treatment) does not mean that members of the infantry corps undergoing training do not have to run with full kit, crawl through the mud or sleep in the open.

The following provisions of the current Defence Act should either be amended or repealed to avoid problems with regard to unconstitutionality:

Section 1: the definitions of "military court" (to reflect the changes to the military justice system); "service and operations in defence of the Republic" (the reference to armed conflict outside the Republic may be in conflict with section 227(2)(d)-(f) of the Constitution); and "time of war" must not be in conflict with section 3(1)(a) and Chapter 7, both dealing with the Cadet Corps, should be reconsidered in the light of section 30 (dealing with the rights of children) and possibly section 32 (the right to education) of the Constitution; Chapter 8 will have to be amended and restructured, depending on the future conscription. (SECTION 72A-1 will in any event have been amended or repealed, since it might well be in conflict with the fundamental rights' provisions dealing with freedom of religion, belief and opinion (section 14), freedom of expression (section 15) and freedom of association (section 17), since persons with religious or conscientious objections to military service have to serve longer periods than other members of the Defence Force);



Section 100, 101 103 bis should be carefully looked at to reconcile them with the fundamental rights' provisions in the Constitution;



Section 103 ter and 103 quat should be repealed in their entirety, since they will be unconstitutional on a number of grounds (and should never have been enacted in the first place);



Section 104(5) may be amended in the light of section 27 (labour relations) of the Constitution in particular, depending of the status of civilian employees in the NDF;



Section 111 should be amended to accommodate the changes in the system of military justice, as well as section 25 (detained, arrested and accused persons) of the Constitution;



Section 118-119: These provisions must be reconciled with the fundamental right of access to information (section 23 of the Constitution);



Section 121A must be amended to reflect the public international law position included in section 35(1), 227(2)(d)-(e) and 231 of the Constitution, since the existing provision will not be effective in the light of modern perceptions about the use and recruitment of mercenaries;



In the light of a proposed chapter on labour relations in the new Defence Act, as well as the provision dealing with labour relations as fundamental right in the Constitution, section 126B and 126C should be amended to reflect a new labour dispensation, even within the security forces;



The entire chapter 8 should be scrutinised to ensure that its provisions comply with section 35(1), 227 and 231 of the Constitution;



Section 149 bis should be amended to the extent that it might be in conflict with section 22 (access to court) and 24 (administrative justice) of the Constitution. It should be pointed out that there are a number of provisions in Schedule 1 to the Defence Act (the Military Discipline Code) which may well be unconstitutional as well. The provisions in the MDC will also have to be amended and restructured to accommodate and reflect the changes to the military justice system.

PROPOSED CHANGES TO THE MILITARY JUSTICE SYSTEM

General

These proposals are submitted in the light of the broader framework of civilian control of the military. Civilian Control in itself is only part of the solution -the other component (sorely lacking in the past) is accountable and transparency.

Secondly, every government organ and all legislation will be subject to the Constitution. If a particular concept in the Constitution has to be read in conjunction with a provision in for e.g. the Interpretation Act No 33 of 1957, such other legislation will still have to be interpreted with due regard to the spirit, purport and objects of the chapter on fundamental rights (section 354(3) of the Constitution). Everything will now be subject to the supreme Constitution.

Thirdly, it is disconcerting to note that some people want to elevate the limitation clause (section 33), as well as the provision dealing with a state of emergency and suspension (section 34) to the most important provisions in the chapter on fundamental rights in the Constitution. These provisions are the exceptions to the rule, not the other way round.

Proposals for a New Military Court Structure

In the light of sections 24 and 25 of the Constitution, the military authorities will have to make a number of changes to the military justice system. In this regard they do not have any choice.

In the short term, directives should be sent to all personnel involved in military justice (including the Military Police), informing them of the relevant provisions in the Constitution, how these will affect the various proceedings and how to avoid possible problems with regard to unconstitutionality of administrative action in particular.

As pointed out above, a long term solution is unavoidable. With regard to a new structure, there are two choices. The first is to transform all military courts into administrative disciplinary tribunals without any criminal jurisdiction. This is clearly not the way to go, since civil courts will have to try military personnel for purely military offences.

The other option will necessarily include the following structural changes to the military justice system:

In the first place, a clear legislative distinction should be made between court martial as courts of law (to be called e.g. Military Courts of Justice), and summary trials as mere internal administrative bodies (known as e.g. Military Disciplinary Tribunals), as well as a legislative confirmation and definition of the status of military courts within the general court structure. It follows that summary disciplinary hearings will have to be decriminalised: only offences of a purely disciplinary nature should be heard. To ensure a fair hearing, legal representation should not be excluded per se. (In any event, the current position that no legal representation is allowed in a summary trial will not comply with section 25 of the Constitution, dealing with the rights of detained, arrested and accused persons. If the summary trials are transformed into disciplinary hearings, they will have to comply with section 24, which deals with administrative justice.

A clear distinction should be made in the Military Discipline Code between military offences (to be tried by the military courts) and mere military disciplinary transgressions (to be adjudicated by military disciplinary tribunals). A clear distinction should be made in a future Military Discipline Code between criminal offences justiciable by the courts martials, and minor disciplinary transgressions that should be heard by internal disciplinary hearings. To comply with section 24 and 25 of the Constitution, the latter must not carry punishment like incarceration, but rather penalties and measures like extra duties, reprimands etc. The existing review procedure with regard to summary "trials" must be retained to form the necessary system of internal remedies. The Supreme Court will retain its inherent review jurisdiction (section 101(2) of the Constitution).

It also has to be borne in mind that section 7(4)(b) creates an actio popularis: when an infringement or threat to any of the fundamental rights in Chapter 3 is alleged, virtually anybody can approach any court of law for appropriate relief, including a declaration of rights. In the light of a new labour law dispensation for the armed forces, this means that the representatives of military personnel will be able to approach the courts on behalf of members of their organisations.

The performance of police functions by members of the Military Police is now governed by Chapter XI (entitled "performance of police functions by military police officials") of the General Defence Force Regulations. In the light of the structure and composition of the "new" police force provided for in the Constitution, the status and position of the Military Police should come under scrutiny as well: section 214 of the Constitution provides for the establishment of a South African Police Service which will be structured at both national and provincial level, while section 214(3) makes provision for the establishment of municipal or metropolitan police forces. The exact level at which a military police force should operate in the future, as well as a precise legislative demarcation of its powers, functions and jurisdiction is not only long overdue, but necessary as well, especially if courts martial form part of the formal hierarchy of courts of law.

Another aspect has been raised: how will the system of military justice function in a state of emergency and a state of national defence? In general, two principles will apply: (1) during such "abnormal situations, the fundamental rights will be limited by the provisions section 33 and 34 of the Constitution, and these limitations will also apply to the system of military justice in, e.g. a theatre of war: (2) any limitation will still have to meet the requirements of section 33(1). In other words, the limitation clause contains its own limitations. The Constitution in general and the chapter on fundamental rights are not suspended in their entirety.

All of the above proposals will not only entail fundamental and detailed changes to the existing legislation, but will also require far-reaching changes to the training of legal officers in all aspects of evidence, procedure and statutory interpretation, internal policy and organisational structure.