Wednesday, January 23, 2019

Twitter and military justice

Welcome to the Age of Twitter. Reema Omer of the International Commission of Jurists has received a tweet advising her that her own tweets criticizing Pakistan's use of military courts to try civilians violates the country's laws. The government claims it's not responsible, and Ms. Omer has asked Twitter for further information. Details here. Stay tuned.

Costs and sexual assault

What to do if a victim of sexual assault and false imprisonment sues her assailant and the government and loses on jurisdictional and timeliness grounds? In New Zealand, the prime minister has told the authorities to abandon their claim for costs, but what about the successful individual defendant, who obtained a costs order requiring the victim to pay him nearly NZ$28,000? The story is told here.

A quiet year

It was a quiet year for Irish military justice in 2018: five courts-martial. Details can be found here.

Sunday, January 20, 2019

Pakistan's every-two-years kabuki

The political shadow-boxing continues in Pakistan over whether the country will give military courts another two-year lease. The armed forces public relations unit claims that giving their courts power to try civilians isn't their idea; it's all up to the civilian government. [Ahem.] The Pakistan People's Party seems to be opposing renewal, but another opposition party may be leaning the other way. What logrolling concession would seal the deal for that party? The government has a thin majority in Parliament but needs a two-thirds vote to amend the Constitution again.

The drama continues.

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 National Defence Headquarters (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 the duties of her new office. Most oddly, the complaint was filed with the Chief of the Defence Staff (CDS) who has absolutely no corporate responsibility for FOI matters. The complaint should have been directed either to the Information Commissioner  of Canada or the Director of Access to Information and Privacy (DIAP) at NDHQ who each 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, a most uncommon procedure causing maximum embarrassment and damage to the senior management team at NDHQ at initiated. Incredibly, that immediately 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 that had been conducted by JAG officers  in the first place.  A reasonable person would think, that the JAG was perfectly entitled to review that draft prepared by her staff before it was published. Particularly so 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,  she first had to have it 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 said audit report could not be 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 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.   

           Clearly, the action taken was a clear abuse of process in total disrespect for the establsihed complaint regime contained in the FOI.

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

            As Cicero said: "Cui bono!"