Sunday, December 10, 2017

Transparency watch

The website of the Court Martial Appeal Court of Canada includes a February 23, 2017 Notice to the Profession concerning access to digital audio recordings of the court's proceedings. It reads:
As of February 23, 2017, the Court Martial Appeal Court of Canada will create and keep an audio recording of all hearings using a digital audio recording system (DARS). This does not apply to hearings by teleconference, which may be recorded in the Court’s discretion. 
Copies of the audio recording of a proceeding will be made available to the parties upon request. Media organizations and members of the public will be authorized, upon request, to listen to an audio recording, if they were entitled to be present in the courtroom for that proceeding. A court order is required before media organizations and members of the public are able to obtain a copy of an audio recording. 
In the case of oral reasons for judgment, the reasons will be redacted from the audio recording. 
Where there are access restrictions applicable during the hearing (e.g., as a result of a confidentiality Order or publication ban), the protected information will, where practicable, be redacted from the audio recording so as to allow for access. The audio recording will not be released if it is impracticable to redact the protected information. 
Exceptionally, there may also be situations where protected communications (e.g., between solicitor and client) are inadvertently recorded. Parties and their legal counsel should exercise prudence when such discussions close to the hearing room microphones, which are sensitive. Any concerns with respect to a recording should be brought as soon as possible to the attention of the Court. 
Request Process – Complete the form in the Annex and submit it to the Registry (in person or by fax). See the Registry Offices page of the Court web site ( to find your local Registry office. The Registry will contact you once the audio recording is available. 
Restrictions on Use of Audio Recordings of Court Martial Appeal Court of Canada Proceedings – Copyright in audio recordings shall vest in and remain the property of Her Majesty the Queen in Right of Canada. Reproduction, broadcast or distribution of any audio recording of Court Martial Appeal Court of Canada proceedings is prohibited.
One would think the public interest would be served by making the audio of hearings available as a matter of routine, as other courts have increasingly founds ways to do. This includes the U.S. Court of Appeals for the Armed Forces, as this website page shows. The Supreme Court of Canada posts archived webcasts here and has a form for requesting video recordings or webcasts here. FAQs are provided here. Perhaps a way can also be found around the crown copyright, so that, in a proper case, the media could post links to or otherwise disseminate recordings of CMAC hearings.

200 years ago

Vice Admiral William Bligh, RN
Next time you are in London, you may want to visit the grave of Vice Admiral William Bligh, of HMS Bounty. He died on December 7, 1817. Information on his gravesite at the Garden Museum (formerly the Church of St. Mary-at-Lambeth) appears here.

Friday, December 8, 2017

Free speech in Malaysia

Major (as he then was) Zaidi Ahmad
Do you remember Zaidi Ahmad? He's in the news yet again, as witness this New Straits Times report:
A non-government organisation (NGO) is urging police action against former Royal Malaysian Air Force (RMAF) officer major Zaidi Ahmad for allegedly making slanderous comments about Prime Minister Datuk Seri Najib Razak on WhatsApp.

International University Alumni Association secretary Naseron Ismail lodged a police report on the matter at the Dang Wangi district police (IPD) headquarters on Tuesday afternoon.

Naseron told the media outside the IPD that in a WhatsApp group named “Debate PRU14 Analisis” Zaidi posted a comment which humiliated Najib, whom he referred to as “a thief of billions of ringgit of the rakyat's money.”

“In his post, he also claimed that Najib slept during the 31st Asean Summit in Manila recently. His statement belittled Najib's credibility as our nation's leader.

"I am in the same WhatsApp group as Zaidi. I asked him to clarify his statement. He (responded by) mocking me," he said.

Naseron told Zaidi in the WhatsApp group that he would lodge a police report over the comments.

"I was really unhappy (over his comments). I am afraid that (they) would influence other people," he said, adding that Zaidi could be investigated under the Sedition Act 1948 and the Malaysian Communications and Multimedia Commission Act.

Naseron said he made a police report as a deterrent against all individuals who want to make slanderous remarks on social media.

"This should be stopped, as it will give a bad impression of the nation, especially with the upcoming election period," he added.
Can't have that happening, can we? 

Tomorrow, Off-Off-Broadway

Will you be in New York tomorrow? You can catch a free reading of a play about the court-martial of Spanish Rear Admiral Patricio Montojo and the support he received from Admiral George Dewey. According to Broadway World:
The play version of The Court Martial of Admiral Montojo will debut with a free off-off-Broadway reading on Saturday, December 9 3pm at the Manhattan Rep Theatre at 17-19 West 45th Street, NYC.

Military courts, according to the Federal Judicial Center

Here is what the Federal Judicial Center says about military courts:
Article I, §8 of the Constitution gives Congress the power to “make Rules for the Government and Regulation of the land and naval Forces.” Congress has long employed this power to authorize courts martial to enforce discipline and punish crimes within the military ranks. As part of the military command structure, courts martial proceedings do not have the same procedural safeguards of civilian courts. An 1859 decision of the Supreme Court of the United States determined that these courts did not wield the “judicial power” of the United States and as such were not federal courts established under Article III of the Constitution. These same attributes of military tribunals made the extension of their power to civilians controversial, and an 1865 Supreme Court decision held military tribunals could not try civilians where Article III courts were in operation.

During the second half of the twentieth century, Congress revised the composition and makeup of the military justice system to increase procedural safeguards without altering the distinctive character of the courts. In 1950, for instance, Congress established the Uniform Code of Military Justice and, with it the Court of Military Appeals (renamed the United States Court of Military Appeals in 1968 [82 Stat. 176]). This court consisted of three judges (five under the current statutory scheme) appointed from civil life by the President of the United States by and with the advice and consent of the Senate to fifteen year terms. No more than two of the three judges could be affiliated with the same political party. Similarly, in 1968 Congress required military judges to preside over general courts martial and required the Judge Advocate General of each service to establish a Court of Military Review.

In 1989 Congress provided for appeals via writ of certiorari from the Court of Military Appeals to the Supreme Court of the United States (103 Stat. 1569). In 1994, it changed that court’s name again to the United States Court of Appeals for the Armed Forces and the Courts of Military Review for each service to the Courts of Criminal Appeals.
Did you notice anything incorrect or obsolete?