Explain yourself!

If you want to demote a member of the armed forces, and reduce the member's pay, you need to explain yourself -- even if you are Chief of the Defence Staff. So says Justice Margaret Mohammed of the High Court of Trinidad and Tobago. Details here.

End-o'-Term

The October 2023 Term of the U.S. Court of Appeals for the Armed Forces ended on September 30. United States v. Warda, The court's last decision of the Term--its 25th--was handed down on September 29. The able Opinion of the Court was written by Judge M. Tia Johnson for a 4-judge majority. Judge Hardy joined in a separate concurrence by Chief Judge Olson, while Judge Maggs dissented. The court held that it was an abuse of discretion for the military judge to refuse to abate the proceedings where pertinent immigration records relating to the main government witness could not be produced.

For readers who follow these things, this is yet another case that has precious little to do with the arcana of military law (and a lot to do with immigration law).

Houston, we have a problem

It seems that Spain's Central Military Court is down to one member, and in March there will be none. One would think this would have been addressed by now, since this state of affairs suggests there is no need for this court. Half of the military court positions are vacant. The General Council of the Judiciary will meet this week. The story from El Español is, unfortunately, paywalled.

Withdrawal of remaining charge against Lieutenant-General Whelan

It's time to start asking the difficult questions.

The withdrawal of the remaining charge against Lieutenant-General Steve Whelan (a charge under s 129 of the National Defence Act for an alleged act to the prejudice of good order and discipline) is merely the most resent example of problematic decision-making in the administration of military justice in the Canadian Forces (CF).

And it would be facile to suggest that the problem lies in the statutory processes available to CF decision-makers.  Most of these missteps and problems arise from problematic decision-making.  And there is a disturbing trend that these decisions are being driven not by considerations of legal principles but by concerns regarding public affairs.

It's time to start asking the difficult questions of the key statutory decision-makers responsible for these missteps.

Military drops case against Lieutenant-General Steven Whelan, 2 October 2023, CBC News (Canadian Press)

Why is Lieutenant-General Whelan being court martialed?, 1 October 2023, Blog: Rory Fowler Law

R v Harrison, 2023 ONCJ 392: Don’t Be Sold a Bill of Goods (Redux), 24 September 2023, Blog: Rory Fowler Law

MGen Dany Fortin & the MPCC, 30 May 2023, Blog: Rory Fowler Law

Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications, 5 May 2023, Blog: Rory Fowler Law

Hope in Uganda after all?

Some good news, perhaps, in Uganda. According to this cover story in The Independent, Norbert Mao (left), the country's Minister for Justice and Constitutional Affairs, opposes the use of military courts for trying civilians. Excerpt:

The minister has said what is going on with the trial of the NUP 32 shows the lawlessness of security forces. It is the army subverting and abusing judicial processes, he says.

Mao has based on that conviction to promise to end the suffering of the NUP supporters.

“Let us review this matter at the end of October,” says Mao, a lofty dreamer who heads the opposition Democratic Party but last year, on July 21, 2022, accepted a deal that earned him a job and pawned his party into a partnership with the ruling NRM party of President [Yoweri] Museveni.

* * * 

Mao says Uganda is a signatory to several international human rights conventions, including the African Charter on Human and People’s Rights that prohibit the trial of civilians in military courts.

“Military courts should not have circumstances where they have jurisdiction over civilians,” he says.

He also says that Uganda’s constitution guarantees independence of the judiciary.

“It is impossible to achieve this independence, when the army, an arm of the executive is trying civilians,” he says.

According to him, the general court martial was intended to only try soldiers.

“The only circumstance under which military courts could have jurisdiction over civilians is for instance, if a civilian acts in a manner which is harmful to security and in my view that should only be if someone cooperates with a foreign state,” he says.

Adding that with the NUP supporters, this has not been the case. He laments the army’s increasing tendency to try civilians at the slightest excuse.

“The trial of civilians in military courts in our country appears to be the rule rather the exception,” he says.

The Supreme Court of Uganda has yet to rule on a long-pending challenge to the military trial of civilians.