Thursday, January 17, 2019

Chicane de clochers -- parochial squabbles

Earlier today the National Post posted an article titled “Canadian military claimed a report didn’t exist -even though it ‘clearly’did.”  The report was critical of the actions taken in 2017 by the Judge Advocate General, Commodore Geneviève Bernatchez and her senior staff.



As an author of a legal text on federal FOI matters, I normally keep abreast of such matters. To that end, in 2017 , I personally generated several FOI requests to NDHQ to illuminate this situation. A review of the several FOI-disclosed records confirmed my original instincts; what we have here is an overblown ‘chicane de clochers” or parochial squabbles gauchely disguised as an affront to the FOI.

            Bizarrely, this issue surfaced in 2017 when the newly appointed JAG was on a short summer vacation leave, only days after assuming office. Most oddly, the complaint was filed with the Chief of the Defence Staff who has absolutely no corporate responsibility for FOI matters. The complaint should have been directed either to the Information Commissioner or the Director of Access to Information and Privacy (DIAP) who have legal responsibility for the operation of the FOI.

              Better yet, a well-meaning person would have waited a week or so for the return of the JAG to inquire. 

             Instead, deliberately or not, this uncommon procedure caused maximum embarrassment and damage to the senior management team. Incredibly it also generated a police investigation which was conducted by a RCMP Investigator attached to the National Investigation Services (NIS)Really?

The document requested was the draft of an internal audit of the Canadian court martial system  conducted by JAG officers.  A reasonable person would think, that the JAG was perfectly entitled to review that draft before it was published. Particularly since the JAG was already on the public record noting that the draft audit report was going to be published. However, in accordance with the rules,  only after being translated into the French language.  My own review of the FOI - disclosed documents made it quite clear that in its communication with the DIAP, the Office of the JAG noted that the audit report could not provided at that very instant because it was “still in production”.  Fair enough.

Not surprisingly, there were likely miscommunication between the Office of the JAG, the DIAP, and ultimately, the FOI requestors in July 2017 There may also have been differences of opinions in interpreting the Access to Information Act.  It is not unusual for such things to happen at the height of the summer leave season. But this situation is a far cry from constituting an offence under the Access to Information Act. Clearly, the action taken was a clear abuse of process .   

 I can verily say that this situation remains a far cry from constituting an offence under the Access to Information Act let alone against the Criminal Code of Canada.   It is not even close. Instead, this matter is more about very malcontent individuals who were not pleased with a lady being appointed as the new JAG.   

That is most disturbing and it is inappropriate in any sector of the public service, particularly from m members of the officer corps in whom the State has reposed special trust and confidence in their loyalty, courage and good conduct,

ICJ Briefing Paper: Military Injustice in Pakistan

The International Commission of Jurists has issued a January 2019 version of its briefing paper, Military Injustice in Pakistan. It's available here. The paper calls on Pakistani authorities to "[e]nsure the jurisdiction of military courts to try civilians is not extended beyond 30 March 2019."

Wednesday, January 16, 2019

Sierra Leone military judge: no photography in the courtroom

The military judge presiding over a long-running Sierra Leone court-martial has cautioned the media not to take photos of the proceedings. Details here. “When you look at the photo in the newspaper, it seems as if the accused are in a cave and seem to be under massive pressure and it is sending a bad signal.” “As you can see, the accused are not under pressure at all. They are well seated and presumed to be innocent unless the Court proves them otherwise based on what the prosecution have as evidence.”

Which system should try these cases?

Two GIs suspected of conspiring to murder a third, while on leave. Details here.

Off-base arson of an apartment building. Details here. Excerpt:
On Feb. 10, 2016, civilian authorities arrested and charged [YN2 Charmaine K.] March with arson.

But on June 19, 2018, state officials dropped the charge against her, according to Virginia court records.

The Navy picked up the case and charged March on Aug. 8 with violating Article 126 of the the Uniform Code of Military Justice.

Tuesday, January 15, 2019

A plea to reform Pakistan's regular justice system

Mosharraf Zaidi has written an eloquent op-ed arguing against another extension of Pakistan's military courts' power to try civilians. Excerpt:
The cost of military courts is continued and unending rot and decay in the country’s courts system. The benefit of military courts is a speedy trial and conviction and hanging of less than five dozen terrorists.

In what universe is this a bargain that makes any sense? Military courts are not an effective killing machine – our police and armed forces have done and continue to do a remarkable job of finding and killing terrorists. The availability of military courts offers no compelling basis for their continuance.

Now imagine a Pakistan without military courts. I would fully expect that in the absence of these courts, a parade of security and law-enforcement officials would express anxiety about the potential freedom of the terrorists that they capture and put in jail, in anticipation of trials that take too long to happen, in courts whose judges lack the stomach to announce death penalties for jet black terrorists.

The solution to this legitimate anxiety would be to reform the courts. Maybe wholesale reform would be too difficult. But reforming and reframing the anti terrorism courts system is a much more fathomable domain. Even narrower would be the provision of court premises that blind convicts to the identities of judges. Narrower still, the enactment of legal provisions for high security and higher pay for judges and court staff who have to take higher risk.

All of these solutions would strengthen Pakistan, whilst contributing to the efforts of our soldiers and spies in our continuing war with terrorists. It is time for the military courts to end.