Thursday, January 31, 2019

Landmark decision in Kathmandu

The Supreme Court of Nepal has handed down a landmark ruling on military jurisdiction, reported in detail here in the Himalayan Times. The court asserted habeas jurisdiction over military courts and rejected a soldier's claim that he had to be tried in a military court rather than a civilian one for a violation of the National Parks and Wildlife Conservation Act, 2029 (1973). The decision holds that the Army has jurisdiction only over offenses enumerated in the Army Act, not offenses arising under the country's general criminal laws, notwithstanding Art. 66(1) of the Army Act, 2063 (2006) (excluding homicide and rape).

An English-language version of the opinion is not yet on the court's website. Excerpt from the news account:
Our constitution does not allow granting of judicial powers to a body which cannot dispense its duties in independent, impartial and competent manner. The SC stated that Nepal guaranteed the right of fair hearing principles that could only be upheld by an independent, impartial and competent court.

The SC quoted UN Updated Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, which states, “The jurisdiction of military tribunals must be restricted solely to specify military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international or internalised court.”

The SC observed that all the specialised courts also needed to respect people’s right to fair hearing.

“Democracy expects judicial bodies to work in an independent, impartial, competent, transparent and responsible manner. Any privilege must be sanctioned by the law. Discipline may be important for the army, but justice cannot be less important,” the apex court observed, adding, “If a thing is not a matter of military control or direction, then it must be accepted that such a thing should be adjudicated by an ordinary court.” It stated that people should also feel that army personnel were not above the law.

The SC added that if the military court was given jurisdiction over offences committed by military personnel not related to military service, that would be against democracy, the rule of law, civil rights and supremacy of the civilian government.
Many countries' military justice codes, including those with British roots, turn civilian offenses into military offenses (with some exceptions for major crimes of violence). The United States is among them. See 10 U.S.C. § 934 (Art. 134, UCMJ). In Canada, the Supreme Court will determine this year whether such provisions violate the right to trial by jury as guaranteed by the Charter of Rights and Freedoms.

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