Nepal | July 03, 2020

SC rules its writ runs on military court

Ram Kumar Kamat
Share Now:

Kathmandu, January 30

In a landmark verdict, the Supreme Court has ruled that all the courts, including military courts, are under its jurisdiction and military courts’ jurisdiction is limited to offences listed in the Army Act.

This was stated today in the full text of the verdict passed on June 19 by the single bench of Justice Cholendra Shumsher JB Rana in a habeas corpus writ petition filed on behalf of armyman Krishna Bahadur Magar.

According to the case details, Magar, another armyman Hari Bahadur Dhakal and a civilian Dil Bahadur Dhakal were arrested by Kathmandu police on January 31 with two rhino horns and were prosecuted under National Parks and Wildlife Conservation Act.

Magar filed the petition after he was sent to judicial custody on March 14, claiming that as per Section 66 (1) of the Army Act, military court had the jurisdiction in all offences committed by military personnel except the crimes of rape and murder. On March 4, the Judge Advocate General’s Department of NA had written to the district court presenting the same argument.

The SC rejected the petitioner’s argument, observing that the constitution had placed the Supreme Court above all the courts, including military court and the latter should obey its directives.

It stated that unlike the Constitution of the Kingdom of Nepal, which had excluded the military court from SC’s jurisdiction, the Interim Constitution of Nepal and the current constitution kept the military court under its ambit.

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.

The SC observed that the NA did not claim that Magar’s offence was among the list of offences mentioned in the Army Act.

The case is under Kathmandu District Court’s jurisdiction as per the provision of   National Parks and Wildlife Conservation, and therefore, the district court’s decision to refuse the army’s argument, which was endorsed by Patan High Court, was fully consistent with the constitution and the laws, added the SC.

 


A version of this article appears in print on January 31, 2019 of The Himalayan Times.


Follow The Himalayan Times on Twitter and Facebook

Recommended Stories:

More from The Himalayan Times:

TUTH. Tribhuvan University Teaching Hospital, Teaching Hospital, Maharajgunj

49-day-old infant diagnosed with Covid-19 passes away in Kathmandu

KATHMANDU: A 49-day-old infant diagnosed with Covid-19 passed away on Wednesday evening at Tribhuvan University Teaching Hospital (TUTH), where he was receiving treatment. Ministry of Health and Population, in its regular press briefing, confirmed the passing of the baby. The infant -- resident o Read More...

PM advised to reach out to rival NCP faction

Kathmandu, July 1 A day after Prime Minister KP Sharma Oli was asked by Nepal Communist Party (NCP) Standing Committee members to resign from both the posts of prime minister and party co-chair, the PM was advised by his aides in the party to reach out to the rival faction. Oli held a meeting Read More...

Nepal could witness yet another huge locust invasion

Kathmandu, July 1 The Locusts Information Centre has warned that a large swarm of locusts is likely to enter Nepal from India over the next couple of days. According to the centre, the swarm of locusts is headed towards Darjeeling from Bhagalpur and Motihari in Bihar. As the swarm is likely to Read More...

Hunger strike by youth activists enters sixth day

KATHMANDU, JULY 1 Iih, 26, who initiated ‘Enough is Enough’ campaign demanding effective handling of the COVID-19 pandemic by the government, has been on fastunto-death in a sattal (rest house) at Patan Durbar Square as his hunger strike entered the sixth day today. Iih has been joined by Read More...

‘Citizenship bill not inclusive’

KATHMANDU, JULY 1 Although the constitution is progressive in terms of citizenship issues it does not guarantee equality. Even after five years of the promulgation of the constitution, necessary amendments have yet to be made to Citizenship Act-2006, as per the provisions of the constitution. Read More...

Obrador

Mexican president to hold first meeting with Trump, Democrats unimpressed

MEXICO CITY: Mexico's president and his US counterpart Donald Trump will hold their first meeting on July 8 in Washington, officials said on Wednesday, sparking complaints from Democratic lawmakers, who saw it as a political stunt with elections looming. President Andres Manuel Lopez Obrador ha Read More...

Twitter removes image tweet by Trump over copyright complaint

Twitter Inc has taken down an image tweet by the US President Donald Trump on June 30, in response to a report from a copyright holder. Twitter now displays the message “This image has been removed in response to a report from the copyright holder,” in place of the tweet. News website Axio Read More...

Gunmen kill 24 people in attack on Mexican drug rehab center

MEXICO CITY: At least 24 people were killed in an armed attack on a drug rehabilitation facility in the central Mexican city of Irapuato, Mexican police said on Wednesday, underlining the challenge the government has in fulfilling a pledge to stop gang violence. Police in the city in Guanajuato s Read More...