Scholarship Saturday: The Canadian Supreme Court has favorably rated the independence of that Nation’s court-martial system

By Isaac Kennen

Scholarship Editor
www.caaflog.org

Past articles in this column have covered developments that explore the question of judicial independence in the military justice system. In February of this year, we discussed arguments made before the International Court of Justice wherein India called it a “manifest failing” that military judges in Pakistan’s court-martial system are not “independent of the executive.” India asserted having a judge outside of the executive branch, even in courts-martial, is one of the “indispensable elements of due process . . . in present times with the evolution of human rights jurisprudence.” (Scholarship Saturday: Whether courts-martial are suitable forums for the trial of serious offenses)

Then in April of this year, we covered the D.C. Circuit’s decision in Al-Nashiri, wherein that Court held that it was an “intolerable” conflict of interest for a judge sitting on a military commission to be seeking employment from the agency prosecuting that proceeding. (Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri)

Furthering the line of inquiry regarding what it means to be “independent” in the military justice system, New York University’s national security law blog, Just Security, recently published an article penned by the retired Judge Advocate General for the Canadian Forces, Ken Watkin, Brigadier General (Ret), entitled “‘Fiat Justitia’: Implications of a Canadian Military Justice Decision for International Justice.” General Watkin’s article covers the Canadian Supreme Court’s recent decision in R. v. Stillman, a case which bears importance given the fact that “military justice system compliance with human rights norms has increasingly been the subject of international debate and scrutiny.”

In Stillman, the Canadian Supreme Court cited favorably the Canadian military justice system’s move “[away] from a command-centric model of discipline to a full partner in administering justice alongside the civilian justice system.” Stillman at ¶ 20. In particular, in upholding the legality of courts-martial, the Court cited Parliament’s enactment of legislation that moved the “[power to appoint military judges” outside of the Defense department and “provided a statutory basis for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process.” Stillman at ¶ 48. The Stillman Court further cited with approval the Parliament’s decision to “shift[] responsibility for convening courts martial and appointing military panel members to an independent Court Martial Administrator (CMA) (a civilian who works under the supervision of the Chief Military Judge (CMJ)) out of the hands of senior military authorities.” Id.

General Watkin elaborates further, noting that the Canadian Supreme Court’s decision should not be read as dictating the only way in which a state may guarantee the independence of their military justice apparatus. “States can take steps consistent with their constitutional structure and laws to ensure adequate independence and impartiality. One example is the Canadian adoption of the Director of Military Prosecutions role[.] . . . The Director of Military Prosecutions is statutorily responsible for the conduct of prosecutions, although the Judge Advocate General . . . has the power to intervene in a specific case on an exceptional basis.”

Given all the above, General Watkin is right to assert that Stillman has “significant implications in the international sphere,” and particularly for the American military justice system. As his article notes, American military jurisprudence shares a common-law ancestry with Canada, the United Kingdom, Australia, and Israel. Those common law allies have robust military justice systems as compared to our allies from the civil law tradition – such as France, Belgium, Germany, The Netherlands, Lithuania, Morocco, Taiwan, Mexico, Chile, Austria, and the Czech Republic. But, Stillman shows that even our common law allies have adopted a standard of independence for military judges, prosecutors, and court-martial panel members that is more robust than the protections Congress has, of yet, provided for American warfighters. The American approach has been to, largely, depend on the good honor of commanders to abide by the prohibition on unlawful command influence. That has proven to be an anemic strategy with cases like United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (CAAFlog case page) and United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018) (CAAFlog case page).

- Originally published on April 20, 2019 on www.caaflog.com. Partially preserved by archive.org, here.