Herald on Sunday editorial: Open justice the rule for all

The Battle of Baghak claimed the lives of two New Zealand soldiers.

Throughout most of New Zealand's decade-long deployment in Afghanistan, the Defence Force benefited from largely uncritical reporting. The lack of media on the ground in Bamiyan province and the dearth of casualties allowed it to control the flow of information. Inconvenient questions began to be asked only when New Zealanders began to die. People wanted to understand why these deaths were occurring and to know in some detail what our soldiers were doing and how effective their involvement had been.

This sat uncomfortably with a Defence Force that, like its counterparts overseas, is extremely wary of how the media can influence public opinion to a conflict.

Serious questions have been raised about the Battle of Baghak, in which two New Zealand soldiers died. They remain largely unanswered. Now the Defence Force risks adding to its reputation for burying its head in the sand over the current charges. Investigations by this newspaper resulted in the Defence Force revealing that a soldier had been charged with planting explosive devices, which contravened the Geneva Convention. That aspect raised obvious concerns about the potential harm to the Army's reputation.

Despite repeated requests for updates on the investigation, the Herald on Sunday was not informed of the summary trial which took place this week. The officer was let off the charges due to a lack of evidence.

A subsequent terse press statement confirmed only the hearing of a charge under the Armed Forces Discipline Act that the officer had negligently failed to ensure targets would be visually identified when ordering the placement of a booby trap. The charge had been dismissed because of a lack of evidence, and the officer had been granted permanent name suppression.

"No further comment will be made in relation to this trial," the statement added. The second officer facing charges relating to the booby trapping is yet to learn whether he will face a court martial next month. This is obviously a matter of considerable significance to the Defence Force.

The charges invite scrutiny here and abroad of its attitude to the international rules of war. There are clear implications for the reputation of this country. We believe our soldiers fight fiercely but fairly. When there is reason to question that view, the public has the right to know, in detail, what the officers did and whether this was common practice. Yet the Defence's Force's antediluvian response means people have no idea what evidence was offered and why it was deemed insufficient.

This penchant for secrecy is par for the course when the force risks being embarrassed. It has reserved for itself the right to bury inconvenient truths.

But so, too, until recently did the Teachers Council. Teachers' disciplinary hearings were held in secret. Finally, the Government asserted that open justice must be the rule and that proceedings should be open to the public. There is no good reason why that principle, widely presumed and strongly espoused by the Law Commission, among others, should not also apply to the Defence Force.

A continuation of the current lack of transparency can lead only to a public loss of confidence in its disciplinary proceedings. That must change, starting, logically, with independent judicial oversight of military tribunals.