Friday, January 24, 2014

Actual and perceived independence of military judges

Under Canadian military law military judges have a rank. The highest rank is held by the Chief Military Judge who stands in the hierarchy as Colonel. His rank is inferior to that of the Judge Advocate General who is not a judge and who, with his lawyers, argue cases before him. His rank is also inferior to some 150 officers. He has to salute them. Yet all these superior officers, including the JAG, the Chief and Vice-Chief of the Defense Staff, are subject to the Code of Service Discipline and fall under his judicial jurisdiction. In addition, grievances by military judges are decided by the Chief of the Defense Staff.

This ranking, especially the inferior ranking of the military judges, does little to boost soldiers' and public confidence in the administration of military justice. Nor does the grievance process applicable to military judges. Through numerous cases, fiercely opposed by the JAG's office, and resulting decisions from the Court Martial Appeal Court of Canada, military judges have been granted judicial independence in terms of appointment, remuneration and security of tenure.

Should military judges have a rank? Should they not be classified apart and simply called "Judge" and "Chief Military Judge," thereby leaving no doubt as to their independence from the chain of command and erasing any perception that, after all, they might not be as independent as it appears? In the same vein, should not grievances by military judges be decided outside the chain of command?

1 comment:

  1. The greatest impediment towards progressive changes is this arena is military rigidity. Look at any system in the world but our inherent tendency to look inwards is the greatest enemy towards our quest towards justice for the brave men and women wearing the uniform of their respective nations. IMHO, judges adjudicating military cases should be totally delinked from the hierarchy.


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