Thursday, August 17, 2017

Are the padres' lips sealed?

CBC News reports on a controversy involving the duty of Canadian military chaplains to report crimes under some circumstances. Excerpt:
The Canadian military's marching orders for chaplains who counsel perpetrators or victims of sexual misconduct is [sic] causing a crisis of conscience for some clergy, federal documents reveal. 
A series of morale and welfare reports obtained by CBC News under Access to Information legislation show the issue of pastors being compelled to testify in court has become a matter of increasing unease among military clergy. 
"There is concern by chaplains that they are potentially breaching the confidentiality of those receiving spiritual care," said a March 2015 summary prepared by the military chaplain general's office. Moreover, the report said, "the existing framework for legal assistance to chaplains does not provide legal advice for them." 
Pastors on bases along the West Coast seemed the most concerned about the ethical dilemma, and at one point they consulted with the regional prosecutor's office to review legal issues related to chaplain confidentiality in courts martial. 
Directive from the top 
But as far as the military's top spiritual adviser is concerned, the issue is clear-cut.
Brig.-Gen. Guy Chapdelaine has issued a directive that says, with the exception of confessions heard under the sanctity of Roman Catholic reconciliation, pastors are required to disclose what they have been told if a crime has been committed. 
"In certain circumstances, there is a duty to report what has been revealed in a counselling situation," said the Oct. 23, 2015, directive, recently obtained by CBC News through Access to Information. 
The directive states: "With the exception of an exchange of sacrament reconciliation with a Roman Catholic priest, confidentiality in pastoral care and counselling is not applicable" when the person is a danger to themselves or others, when the incident involves child abuse or when a court orders a pastor to testify. 
Further, "all notes and documentation, including all emails concerning the case," may be turned over to the court for "consideration" during the trial. 
The chaplains could be called upon to testify, but "will share all information with investigators only with the written consent of the victim." 
They should also "encourage, and where appropriate enable" the victim to report incidents.

Wednesday, August 16, 2017

A culture of presumed guilt?

The culture within the military has become one of presumed guilt for the accused. Military attorneys wield tremendous power over service members accused of misconduct. Army trial counselors have the power to pull decision authority from commanders who ask tough questions before passing judgment. Many commanders are hesitant to challenge trial counselor recommendations.

U.S. Army officer Chase Spears
 Letter to the Editor, Washington Post

A bit of good news in Venezuela

We learn from this report that Venezuela's new National Constituent Assembly -- the superlegislature composed entirely of loyalists of President Nicolás Maduro -- has directed that the hundreds of civilian protesters who had been charged before military courts will be tried in the regular courts. The step was proposed by Sr. Maduro.

Tuesday, August 15, 2017

New Zealand introduces a bill to update the military justice system

Scoop Parliament tells us that:
A bill that will update and better align the military justice system with the New Zealand criminal justice system was introduced to Parliament yesterday.
The Military Justice Legislation Amendment Bill will amend the Armed Forces Discipline Act 1971, the Court Martial Act 2007 and the Court Martial Appeals Act 1953.
“This Bill introduces a number of significant improvements to the military justice system,” says Defence Minister Mark Mitchell.

Judicial independence in Suriname

Diego García-Sayán
UN Special Rapporteur
on the Independence of
Judges and Lawyers
The Office of the High Commissioner for Human Rights today issued the following press release:
The independence of the judiciary in Suriname must be guaranteed by the State, the United Nations human rights expert on the independence of judges and lawyers has said, amid concerns over a long-running murder case in which the country’s president stands accused. 
Special Rapporteur Diego García-Sayán condemned the threats to judicial independence and the repeated delays which have dogged the case against President Desiré Delano Bouterse
President Bouterse is among the defendants standing trial for allegedly murdering 15 political opponents in 1982 in a case known as the “December murders”. 
“I am concerned that there have been repeated attempts to interfere with or delay the trial,” said Mr. García-Sayán, whose specialised mandate deals with judicial independence. 
The trial process began in 2007 – 25 years after the murders – with President Bouterse among the 25 defendants.  
But in 2012 the country’s parliament granted amnesty to all the accused after changing the law in order to do so. 
“It is the State’s duty to respect and observe the independence of the judiciary, by allowing judges to decide cases impartially, without any improper influence, pressure, threats or interference, by either the executive or the legislative branch.” 
He added: “The independence of the judiciary, as enshrined in the Constitution of Suriname, as well as in several international human rights instruments, must be guaranteed by the State, particularly when dealing with serious human rights violations.” 
The Military Court in charge of the trial later found the Amnesty law unconstitutional and ordered the proceedings to start again. 
Mr. García-Sayán praised this decision, highlighting that amnesty measures could not be applied under international law unless States had met their obligations to investigate crimes and punish those responsible. 
“A failure to investigate and bring to justice perpetrators of human rights violations would be in breach of international law instruments,” the Special Rapporteur said. 
“The absence of a fair and expeditious trial of the 1982 murders would also endanger the victims and their families’ right to truth, as well as the general fight against impunity in the region and globally,” he added. 
President Bouterse has previously labelled the trial as a threat to national security. 
 *   *   *
Mr. Diego García-Sayán (Peru) has been Special Rapporteur on the independence of judges and lawyers since December 2016. As Special Rapporteur, Mr. García-Sayán is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.