HISTORY OF THE JUDGE ADVOCATE GENERAL – 480 YEARS OLD
In 1537, the Honourable Artillery Company (HAC) was incorporated by Royal Charter by King Henry VIII and is considered one of the oldest military organisations in the world. On the other hand, the appointment of a special officer by the Sovereign to conduct courts martial – a Judge Martial (or Marshall) can be traced back to 1587 during the reign of Elizabeth. In those days, the Judge Martial was independently responsible for military discipline.
In the 1630s, the phrase ‘judge advocate’, or variants thereof, became increasingly in common use. In 1639, for instance, an Advocate served with the Army of Charles I. On June 7, 1645, an Ordinance for constituting Commissioners and a Council of War for trial of all persons . . . appointed a Judge Advocate and a Provost Marshall. The Ordinance enabled and authorized the Judge Advocate to receive all “… accusations, articles, complaints and charges against all or any of the offenders…” By 1659, the Office of the JAG was created to supervise ‘courts martial’.
Prior to 1893, in the U.K. the JAG was a Privy Councillor, a junior Minister in the government, usually a Member of Parliament and a spokesman for the Commander in Chief in Parliament. In those days, the appointment was regarded as a political office and the JAG had direct access to the Sovereign on matters pertaining to his office.
UNITED KINGDOM MAKES REFORMS IN 1948
However, in 1893 the Judge-Advocate ceased to be a Minister. From that date the Office of the JAG was responsible for both judicial and advisory functions.
That changed in 1948 when the UK Parliament decided to appoint a civilian member of the bench as the JAG and entrusted him with the exclusive role of chief magistrate of the penal military justice system accountable not to the military chain of command but to the Lord Chancellor. The current UK JAG is His Honour Judge Blackett, appointed on October 28, 2004
69 YEARS LATER THE CANADIAN JAG CLINGS TO THE MEDIEVAL NOTION OF THE JAG
In 1911, Canada appointed its first Judge Advocate General. At the time the expectation was that a civilian barrister would be named as the JAG by the Governor in Council but the Prime Minister opted instead to appoint a friend who happened to also be a reservist. Since that time the Canadian JAG has been a military officer. Since that time, the JAG has been accountable to the chain of command. He reports to a political minister.
In 1997, in the wake of the Somalia Inquiry, the JAG was divested of all judicial functions when full-time military judges were appointed to ensure, to the fullest extent possible, judicial independence from the chain of command. Inexplicably, however, the JAG was allowed the continued use of the “Judge” title which not only misrepresents the factual reality but caused it to be wrongly viewed and perceived, to this day, as the titular head of the military judiciary apparatus which is clearly not
Most curiously,in addition to acting as the Legal Advisor to a host of senior officials and the military chain of command, the Canadian JAG also retained supervision of both the military prosecutorial and defence functions. As head of the JAG branch and command, the JAG not only determines the total numbers of personnel, but decides which military lawyers will be posted to each of these two directorates. He also has the authority to manage the career of all legal officers serving in these two directorates including their posting, assignments, appointments, selection for postgraduate training and performance evaluation and eventually promotions to higher rank. This is matter of continued debate raising serious apprehension about the real independence and impartiality of those particular offices.
TIME FOR CHANGE
In June 2017, the current JAG, Major-General Blaise Cathcart will retire. His replacement should be appointed as the CF Legal Advisor to the Armed Forces. He should also be divested of his supervisory role over the Prosecution and the Defence functions.