The Canadian military justice review

Tim Dunne has this op-ed in the Halifax Chronicle-Herald. The title: "Putting military in charge of reviewing its own justice system is an impossible conflict." He writes, in part:

According to the terms of reference for the announced review, the final report will be unclassified, but will be subject to “solicitor-client privilege”. That limits access only to those whom JAG wishes to read it. 

This makes no sense. 

For solicitor-client privilege to apply, there must be counsel for an organization to which the solicitor is giving legal advice. In this situation, the publicly funded JAG branch is both solicitor and client, with the review team receiving submissions from the public. 

Solicitor-client privilege should be unnecessary. It merely shields JAG senior management from public disclosure about how the advice, contributions and recommendations will be handled, how it is being analyzed, and what will flow from this advice. This reinforces the need for an independent and external public inquiry. 

At the end of the process, the results should be made public. The code affects about 100,000 serving regular and reserve military members and perhaps another 100,000 who have retired since 1998, when the NDA was changed to extend jurisdiction for 25 years following retirement. 

As it is now constituted, the CMCR is a review by the Department of National Defence. The information gathered, lessons learned and recommendations made can be accepted, ignored or “cherry-picked” by the judge advocate general behind a veil of privilege that prevents any public disclosure. 

A public inquiry, however, would mean there will be witnesses, submissions and, in the end, a report — all of which are open to view and available to the public.

What do you think? 

Will Pakistan renew the 21st Amendment?

Under the 2015 constitutional amendment, military courts may try civilians. Dawn's report on the state of play is uninformative:

The legal cover was given under the 21st Constitution Amendment Bill and the Pakistan Army (Amendment) Bill 2015 having a two-year sunset clause on Jan 6 last year which was subsequently accorded an assent by the president. 

Senate Chairman Mian Raza Rabbani at the outset of the proceedings of the house on Friday invited the attention of the government towards the expiry of the 21st amendment on Jan 7. He observed that action was needed to avoid a legal vacuum.

He said the Senate had already passed the anti-terrorism bill and the witness protection bill to fill the gap. The two bills piloted by the leader of the house and the leader of the opposition have already been sent to the National Assembly.

He said the Senate had fulfilled its responsibility and it was now for the National Assembly to pass the bills. Leader of the House Raja Mohammad Zafarul Haq was not present when the remarks were made and the chairman repeated his words when Mr Haq arrived later.

So does this imply there will be an extension or not? 

Supreme Court of India upholds Air Force's no-beards rule

The Indian Express reports here that the Supreme Court of India has rejected a challenge by a Muslim member of the Air Force who was discharged for having a beard. Excerpt:

A bench led by Chief Justice of India T S Thakur added that regulations do not interfere with religious rights of individuals and that they have the sanctity of ensuring discipline. 

Discharged from service, petitioner Ansari Aftab Ahmed had asserted sporting beard as a facet of his fundamental right to freedom of religion, and seek equality with Sikhs, who are allowed to sport unshorn hair and turban. Advocate Irshad Hanif urged the court to fix a date of final hearing on a batch of petitions filed by the Muslim personnel, who had either been thrown out of service or faced disciplinary action for sporting beards.

The December 15, 2016 decision in Zubair v. Union of India, Civil App. No. 8643 of 2009, can be found here. Excerpt:

India is a secular nation in which every religion must be treated with equality. In the context of the Armed Forces, which comprise of men and women following a multitude of faiths the needs of secular India are accommodated by recognising right of worship and by respecting religious beliefs. Yet in a constitutional sense it cannot be overlooked that the overarching necessity of a Force which has been raised to protect the nation is to maintain discipline.

*   *   *

During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which "prohibits the cutting of hair or shaving of facial hair". Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to "personnel whose religion prohibits the cutting off the hair or shaving off the face of its members". The policy letters which have been issued by the Air Headquarters from time to time do not override the provisions of Regulation 425(b) which have a statutory character. The policy circulars are only clarificatory or supplementary in nature. The policy letter of 8 May 1980 did initially permit an airman professing Islam to sport a beard of a prescribed length. This was revisited by the Air Headquarters on 10 August 1982 and a distinction was made between the cases of Muslim personnel who had already sported a beard at the time of joining service (in whose case no permission was required) and cases where personnel desire to sport a beard after joining service (in which case a formal application informing the Commanding Officer was required to be submitted). On 6 October 1999 the Air Headquarters while reiterating this distinction made it clear that if an airman seeks to grow a beard after joining service he would require the approval of the Commanding Officer who would ascertain the reasons for his decision, advice the individual to maintain the beard in a neat, trim and tidy manner and that once permitted he would not be allowed to shave off his beard. Evidently, these provisions have been introduced having due regard to the security concerns inherent in maintaining identity in the Armed Forces. Maintenance of identity is a crucial element in the safety and security of the Forces, particularly in the context of the threat of infiltration. The policy was again revisited on 24 February 2003. This time a limited protection was granted for those who had a beard prior to 1 January 2002 at the time of enrolment but the policy also stated that no person would after joining service be allowed to maintain a beard. This position was clarified on 9 June 2003 by stating that personnel whose religion demands sporting a beard, would be allowed to do so provided they were granted permission prior to the date of the letter or had grown a beard at the time of joining Air Force. So long as the provisions of Regulation 425 (which have a statutory effect) are not breached, a mere policy can be revisited and modulated in the interest of the Force. The policy documents are only clarificatory in nature. Policies can be duly modified to subserve the best interest of the Force, which is inextricably intertwined with the need to protect the nation against grave threats of destabilisation and disorder. The discipline of this Force is paramount.

Compare Goldman v. Weinberger, 475 U.S. 503 (1986).

The Editor will hazard a guess that this decision is going to prove extremely controversial.

Challenges mount to IHAT

The Iraq Historic Allegations Team, which is investigating alleged crimes by British Troops during the Iraq War, is facing a number of challenges.

Public Interest Lawyers, the firm responsible for bringing many of the allegations, has been closed down and the senior partner has admitted a number of breaches of the Solicitors' Code of Conduct and now faces being struck off. Details here.

A former army officer is bringing a legal action against the Ministry of Defence for her treatment at the hands of the IHAT Team who raided her home in 2014. Details here.

A judicial review has been launched on behalf of a number of Claimants seeking additional help for veterans under investigation. Details here.

All in all it's a bleak mid winter for IHAT as public opposition to its work grows in the UK. 

Gujarat: 2017 Academy on Military Law and Justice

This just in, via LiveLaw.In:

The Gujarat National Law University, a premier national law university, will host 2017 Edition of the Academy on Laws governing Armed Forces, Justice System and Internal Security from 16th to 22nd January 2017. Following the successful organisation of the first Academy and recommendation by the resource persons and participants, 2017 Academy will discuss the concepts of Militarism, Martial Law, Human Rights of the Forces and Global Perspective of Military Laws. The 2017 Academy will specifically focus on the English Articles of War on which the Indian and US military laws are primarily based.  

Faculty and participants: 2017 Edition faculty will consist of senior officials dealing with legal and adjudicating matters of India, USA, UK and other nations. Participants will be from legislative and regulatory Authorities, armed force officials; defence agencies and organisations; national security authorities; international organizations; private and public capacity-building institutions; teachers, researchers, students from various countries.  

Nomination Invitation: It is our honour to extend a warm invitation to you to nominate candidates/officials to participate in the 2017 Academy and benefit from the discussions and network of like-minded participants and institutions. Please find nomination form for your purposes on the official website.  

Important dates: 

Last date for Registration: Friday, December 16, 2016 

Last date for the payment of Participation fees: Wednesday, December 21, 2016 

Commencement of course: Monday, 16th January 2017  

Contact: Mr Virendra Thakur, Academy Coordinator 

Email: gmlj2017@gnlu.ac.in 

Mobile: +812 865 0886 

Source: http://www.livelaw.in/gnlu-academy-military-law-justice-2017/

Editor's note: this is very short notice.