Military Tribunals must respect separation of powers: Read Yale Draft
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Military Tribunals must respect separation of powers: Read Yale Draft

Murali Krishnan

Yale University has released the draft principles for Governing Administration of Justice through Military Tribunals.

The document titled ‘Yale Draft’ is an amended and updated version of the Decaux Principles circulated by the United Nations Commission on Human Rights in 2006 on the same subject.

Major Navdeep Singh, who is a practicing lawyer at the Punjab & Haryana High Court and the Armed Forces Tribunal, was part of the panel which prepared the draft last month at a workshop at New Haven, USA.

The first principle enshrined in the Draft is that military tribunals, if established, must be only by the Constitution or law, and should respect the principle of separation of powers.

“Military tribunals, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. They must be an integral part of the general judicial system.”

Stressing on the independence of the judiciary, the Draft says that there should be no interference by the executive or the military in the administration of justice.

“The Basic Principles on the Independence of the Judiciary, adopted by the General Assembly in 1985, stipulate that “the independence of the judiciary shall be guaranteed by the State and enshrined in the constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary” (para. 1).

The principle of the separation of powers goes together with the requirement of statutory guarantees provided at the highest level of the hierarchy of norms, by the constitution or by the law, avoiding any interference by the executive or the military in the administration of justice.”

The Draft stresses on compliance with international standards for due process and fair trials, stating that military tribunals must in all circumstances afford fair trial rights guaranteed by the International Covenant on Civil and Political Rights, including Article 14.

Regarding the jurisdiction of the military courts, the Draft asserts that the purpose of military courts is to contribute to the maintenance of military discipline inside the rule of law through the fair administration of justice. Hence, military courts should only try cases that have a direct and substantial connection with that purpose.

“If the alleged offence is of a type which is of particular concern to the discipline or efficiency of the armed forces (e.g. an offence by one member of the armed forces against another) or is alleged to have been committed in a defence establishment or in relation to military property, the allegation should be investigated and tried in the military justice system.”

It also makes it clear that in a State that has separate civilian and military courts, the civilian court has primary jurisdiction over all criminal offenses committed by persons in the military.

“If the alleged offence is of a type which is prevalent in civil life and which is alleged to have been committed by a member of the armed forces in his or her capacity as an individual citizen, or if the alleged offence is likely to have affected the community at large in the same degree whether it was committed by a member of the armed forces or a civilian, then the allegation should be investigated and tried in the civilian criminal justice system.”

Further, the Draft also states that judges in military courts should have necessary legal training and qualifications, and that their independence and impartiality vis-à-vis the military hierarchy should be guaranteed.

On trying civilians in military courts, the Draft unequivocally states that military courts have no jurisdiction, except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis justifying such a military trial.

“Those circumstances only exist, where:

(a) Such a trial is explicitly permitted or required by international humanitarian law;

(b) The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or

(c) The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b).”

Advocate Navdeep Singh, who is the founder President of the Armed Forces Tribunal Bar Association at Chandigarh spoke to Bar & Bench about the relevance of the Yale Draft in the Indian context.

Advocate Navdeep Singh
Advocate Navdeep Singh

“Though military law is not draconian in our nation, it’s definitely outdated. The feature which stands out like a sore thumb is that there is no independence of various limbs of military justice wherein the prosecution, defence, confirming agencies, judge advocates, adjudicators, all function under the command of the same authority which is an interested party in prosecution and securing conviction. There’s not even a separate directorate or department of prosecution.”

Singh also spoke about the lack of qualification of jury members and the high conviction rate which was indicative of the absence of judiciousness, fairness and robustness.

“No member of the jury is legally qualified and courts martial are loose ad hoc bodies without permanent infrastructure. Senior military officers have the power to even overturn judicial verdicts rendered by courts martial. The system is proud of the high conviction rate and the swiftness of such convictions by courts martial, but this simply shows efficiency of procedure and not judiciousness, fairness or robustness.

It is hoped and expected that resistance by power centres to change or protect their turfs gives way to progressive thought. Former Defence Minister Mr Manohar Parrikar had taken keen interest in the matter and had directed the constitution of a study group in August 2016 on recommendations of a committee of experts, but no implementation letter has been issued till date on the direction of the then minister. A fair, just and independent system will only promote discipline and not the opposite, as it’s wrongly believed.”

Read the Yale Draft below.

Yale-Draft-on-Military-Tribunals.pdf
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