Chapter V.

Courts-martial.

185. —(1) Where—

(a) a person subject to military law has been acquitted of an offence by a court-martial, or

(b) a person subject to military law has been found guilty of an offence by a court-martial and the finding has been confirmed,

he shall not be liable to be tried again by a court-martial in respect of that offence.

(2) Where a person subject to military law has been acquitted or convicted of an offence by a competent civil court, he shall not be liable to be tried again by a court-martial in respect of that offence.

(3) Where—

(a) a person subject to military law is charged with an offence against military law, and

(b) the charge is dealt with under Chapter IV of this Part either by being dismissed or being summarily dealt with,

such person shall not be liable to be tried by court-martial in respect of that offence.

186. —Courts-martial shall be of two classes, namely, general courts-martial and limited courts-martial.

187. —(1) Each of the following persons shall have power to convene a general court-martial, that is to say:—

(a) the Minister,

(b) any officer (holding the army rank of colonel or the naval rank of captain or higher commissioned rank) authorised in that behalf by warrant of the Minister.

(2) Each of the following persons shall have power to convene a limited court-martial, that is to say:—

(a) an officer who has power to convene a general court-martial,

(b) any officer authorised in that behalf by warrant of an officer who has power to convene a general court-martial.

(3) A warrant under this section may be made subject to such restrictions, reservations, exceptions and conditions as, if the warrant is made under subsection (1) of this section, the Minister or, if the warrant is made under subsection (2) of this section, the officer making it thinks fit.

(4) A warrant under this section may be addressed to an officer by name or by designation of his office or partly in one way and partly in another, and may or may not, according to the terms thereof and the mode in which it is addressed, be limited to an officer named or be extended to a person for the time being performing the duties of the office named or be extended to the successors in office of an officer.

(5) In this Act, the expression “the convening authority” when used in relation to a court-martial means the person by whom such court-martial is convened.

188. —Where an order has been made for the trial by court-martial of a person accused of an offence against military law, the offence shall be taken to be prosecuted at the suit of the convening authority, and accordingly the convening authority shall, in addition to any other powers conferred on him by or under this Act, have, in respect of that offence, powers similar to those conferred by law on the Attorney General in respect of offences triable on indictment before a civil court.

189. —(1) A general court-martial shall consist of—

(a) a president who, subject to subsection (2) of this section, shall be an officer holding the army rank of colonel or the naval rank of captain or higher commissioned rank, and shall be appointed by the convening authority, and

(b) not less than four other members each of whom shall be an officer holding the army rank of captain or the naval rank of lieutenant or higher commissioned rank, and shall be appointed by the convening authority.

(2) The following provisions shall apply in relation to the president of a general court-martial—

(a) where the person to be tried is an officer, the president shall in no case be an officer holding a rank lower than that of such person;

(b) where it appears to the convening authority that an officer holding the army rank of colonel or the naval rank of captain or higher commissioned rank is, having due regard to military exigencies and the public service, not available to act as president, the convening authority may, upon endorsing a certificate to that effect on the order convening the general court-martial, appoint, subject however to paragraph (a) of this subsection, as president an officer holding the army rank of captain or the naval rank of lieutenant or higher commissioned rank.

(3) Where the person to be tried by a general court-martial holds a commissioned naval rank or a non-commissioned naval rank, then, at least one member of the court-martial shall be a person holding commissioned naval rank.

(4) (a) There shall be in attendance at a general court-martial a judge-advocate.

(b) The judge-advocate at a general court-martial shall—

(i) be appointed by the prescribed authority,

(ii) be an officer and either a barrister-at-law or a solicitor, and

(iii) perform such duties as may be prescribed.

190. —(1) A limited court-martial shall consist of—

(a) a president who, subject to subsection (2) of this section, shall be an officer holding the army rank of commandant or the naval rank of lieutenant-commander or higher commissioned rank, and shall be appointed by the convening authority, and

(b) not less than two other members each of whom shall be an officer holding the army rank of lieutenant or the naval rank of sub-lieutenant or higher commissioned rank, and shall be appointed by the convening authority.

(2) Where it appears to the convening authority that an officer holding the army rank of commandant or the naval rank of lieutenant-commander or higher commissioned rank is, having due regard to military exigencies and the public service, not available to act as president of a limited court-martial, the convening authority may, upon endorsing a certificate to that effect on the order convening the limited court-martial, appoint as president an officer holding the army rank of captain or the naval rank of lieutenant.

(3) Where the person to be tried by a limited court-martial holds a non-commissioned naval rank, then, at least one member of the court-martial shall be a person holding commissioned naval rank.

(4) (a) There shall be in attendance at a limited court-martial a judge-advocate.

(b) The judge-advocate at a limited court-martial shall—

(i) be appointed by the convening authority,

(ii) be an officer, and

(iii) perform such duties as may be prescribed.

191. —(1) An officer who convenes a court-martial shall not sit on that court-martial.

(2) None of the following persons shall be qualified to serve as a member of, or to act as judge-advocate at, any court-martial, that is to say:—

(a) an officer who has examined into or advised on the matters on which the charge against the accused is based,

(b) the prosecuting officer,

(c) an officer who is a witness for the prosecution,

(d) any officer who investigated the charge against the accused or took down any summary or abstract of evidence in the case, or who was a member of a court of inquiry respecting the matters on which the charge against the accused is based,

(e) the commanding officer of the accused,

(f) any officer who has a personal interest in the case,

(g) any officer who is not for the time being subject to military law,

(h) an officer who, in an advisory capacity, dealt with the charges to be tried by the court-martial or the evidence to be produced at the court-martial or the conduct of the prosecution at the court-martial.

192. —(1) Subject to the provisions of this Act, a court-martial, whether general or limited, shall have jurisdiction to try and punish any person for an offence against military law committed by such person while subject to military law as an officer or a man.

(2) A limited court-martial shall not have jurisdiction—

(a) to try any person for any offence against military law committed by such person while subject to military law as an officer, or

(b) to try any person who is for the time being an officer, or

(c) to try any person for the offence of treason or murder, or

(d) to award to any person any sentence greater than imprisonment.

(3) A court-martial shall not have jurisdiction to try any person subject to military law for the offence of treason, murder, manslaughter or rape unless such offence was committed while such person was on active service.

(4) (a) The Minister, with the concurrence of the Minister for Justice, may make regulations with regard to the exercise of the jurisdiction conferred on courts-martial by section 169 and may in particular by the regulations provide that the exercise of such jurisdiction shall depend on the consent of such civil authority as may be specified in the regulations.

(b) A certificate under the hand of the officer convening a court-martial for the trial of a civil offence certifying that as respects such trial the consent referred to in paragraph (a) of this subsection has been obtained shall be prima facie evidence of that fact.

193. —(1) If a court-martial after the commencement of the trial is, by death or otherwise, reduced below the legal minimum, it shall be dissolved.

(2) Where after the commencement of the trial the president of a court-martial dies or is otherwise unable to attend and the court is not reduced below the legal minimum, the following provisions shall have effect, that is to say:—

(a) in case the senior member of the court-martial is qualified to be appointed president of the court-martial, the convening authority may appoint such senior member to be president of the court-martial, and the trial may proceed accordingly;

(b) in case such senior member is not qualified to be appointed president of the court-martial or, being qualified, is not so appointed, the court-martial shall be dissolved.

(3) If, on account of the illness of the accused at any time before the finding, it is impossible to continue the trial, a court-martial shall be dissolved.

(4) Where a court-martial is dissolved under this section, the accused may be tried again.

(5) In this section, the expression “the legal minimum” means—

(a) in relation to a general court-martial, five members (including the president),

(b) in relation to a limited court-martial, three members (including the president).

194. —(1) Subject to subsections (2), (3) and (4) of this section, courts-martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the trial.

(2) Where the convening authority or the president of a court-martial considers that it is expedient in the interests of public safety, defence or public morals that the public should be excluded during the whole or any part of a trial, either of them may make an order to that effect, and any such order shall be recorded in the proceedings of the court-martial.

(3) Witnesses, other than the prosecutor and the accused person, shall not be admitted to a trial, except when under examination or by specific leave of the president of the court-martial.

(4) On any deliberation amongst the members of a court-martial, no person shall be present except the members, the judge-advocate and any officers under instruction, and the court-martial may either retire or cause the place where they sit to be cleared of all other persons not entitled to be present.

195. —(1) A court-martial may adjourn from time to time and from place to place.

(2) A court-martial may, if it thinks fit, view any place.

196. —(1) The prosecutor at a court-martial may be represented by counsel.

(2) Any person being tried by a court-martial may be represented by counsel or, if not represented by counsel, by an officer subject to military law.

(3) Any conduct of counsel which would be liable to censure or would be contempt of court if it took place before the High Court shall be likewise deemed liable to censure or be deemed contempt of court in the case of a court-martial, and rules prescribed for practice of courts-martial and the guidance of counsel shall be binding on counsel appearing before such courts-martial and any wilful disobedience of such rules shall be professional misconduct and if persevered in be deemed contempt of court.

(4) Where a counsel at a court-martial is guilty of conduct liable to censure or is guilty of contempt of court, the president of the court-martial may certify the offence of such counsel under his hand to the High Court, and the High Court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of such counsel in like manner as if he had been guilty of contempt of the High Court.

(5) A court-martial may, by order under the hand of the president, cause a counsel to be removed from the court who is guilty of such an offence as may in the opinion of the court require his removal from court, but in every such case the president shall certify the offence to the High Court under the immediately preceding subsection.

(6) In this section, the word “counsel” means a person who is either a barrister-at-law or a solicitor.

197. —(1) An accused about to be tried by any court-martial may object, for any reasonable cause, to any member of the court-martial, including the president, whether appointed to serve thereon originally or to fill a vacancy caused by the retirement of an officer, so that the court-martial may be constituted of officers to whom the accused makes no reasonable objection.

(2) Every objection made by an accused to any officer shall be submitted to the other officers appointed to form the court-martial.

(3) If the objection is to the president, such objection, if allowed by one-third or more of the other officers appointed to form the court-martial, shall be allowed, and the court-martial shall adjourn for the purpose of the appointment of another president.

(4) If an objection to the president is allowed, the convening authority shall appoint another president, subject to the same right of the accused to object.

(5) If the objection is to a member other than the president, and is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire and his vacancy may be filled in the prescribed manner by another officer, subject to the same right of the accused to object.

(6) In order to enable an accused to avail himself of his privilege of objecting to any officer, the names of the officers appointed to form the court-martial shall be read over in the hearing of the accused on their first assembling, and before they are sworn, and he shall be asked whether he objects to any of such officers, and a like question shall be repeated in respect of any officer appointed to serve in lieu of a retiring officer.

198. —(1) Subject to the provisions of this section, every question arising at a court-martial after the commencement thereof shall be decided by a majority of the members of such court-martial.

(2) Sentence of death shall not be awarded by a court-martial save with the concurrence of three-fourths or more of the members of such court-martial.

(3) In case of equality of votes of the members of a court-martial on any question arising after the commencement of the court-martial, the following provisions shall, subject to the immediately preceding subsection, have effect, that is to say:—

(a) in case such question is the finding, the accused shall be acquitted;

(b) in any other case, the president of the court-martial shall have a second or casting vote.

(4) This section shall not apply to any objection to a member of a court-martial made under section 197.

199. —(1) When a court-martial is constituted with the proper number of officers who are not objected to or the objections to whom have been over-ruled, the following provisions shall have effect, that is to say:—

(a) an oath in the prescribed form shall be administered by the prescribed person to each member of the court-martial;

(b) an oath in the prescribed form shall be administered by the prescribed person to the judge-advocate, to every officer in attendance for the purposes of instruction, and to every interpreter and shorthand writer or other note-taker in attendance.

(2) If a person by this section required to take an oath objects to take an oath or is objected to as incompetent to take an oath, the court-martial shall, if satisfied of the sincerity of the objection or, where the competence of a person to take an oath is objected to, of the oath having no binding effect on the conscience of such person, permit such person, instead of being sworn, to make a solemn declaration in the prescribed form, and for the purposes of this Act such declaration shall be deemed to be an oath.

(3) For the purposes of this section, different forms of oath and declaration may be prescribed for members of a court-martial, a judge-advocate, officers attending for instruction, interpreters and shorthand writers or other note-takers, and different persons may be prescribed to administer oaths and to take declarations.

200. —(1) Every witness before a court-martial shall be examined on oath which the president or other prescribed person shall administer in the prescribed form.

(2) If a person by this Act required as witness before a court-martial, or otherwise in respect of a court-martial, to take an oath, objects to take an oath or is objected to as incompetent to take an oath, the court-martial shall, if satisfied of the sincerity of the objection or, where the competence of the person to take an oath is objected to, of the oath having no binding effect on the conscience of such person, permit such person, instead of being sworn, to make a solemn declaration in the prescribed form, and for the purposes of this Act such solemn declaration shall be deemed to be an oath.

201. —(1) The rules of evidence to be adopted in proceedings before courts-martial shall be the same as those which are for the time being followed in civil courts.

(2) (a) In this subsection, the expression “summary of evidence” means evidence in relation to a charge against an accused taken down in writing in accordance with rules of procedure in that behalf.

(b) Where a statement of evidence given on oath by a witness against an accused is contained in a summary of evidence—

(i) subject to subparagraph (ii) of this paragraph, the statement may be read as evidence at the trial of the accused by court-martial, if it is proved that—

(I) the witness is dead or insane or so ill as to be unable to attend the trial, and

(II) the statement was made in the presence of the accused, and

(III) the accused or his counsel or representative had an opportunity of cross-examining the witness,

(ii) if the witness is insane or so ill as to be unable to attend the trial, the statement shall not be read without the accused's consent.

(3) No person shall at any proceedings before a court-martial be required to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court.

202. —(1) Where at the trial by court-martial of a person charged with an offence it appears that such person is by reason of insanity unfit to take his trial, the following provisions shall have effect, that is to say:—

(a) the court-martial shall find specially that fact;

(b) such person shall be kept in custody in the prescribed manner until the directions of the Minister thereon are known or until any earlier time at which such person is fit to take his trial;

(c) the Minister may give orders for the safe custody of such person during his pleasure in such place and in such manner as he thinks fit.

(2) A finding under this section shall be subject to confirmation in like manner as any other finding.

203. —(1) Where at the trial by court-martial of a person charged with an offence it appears that such person did the act or made the omission charged, but was insane at the time when he did the said act or made the said omission, the following provisions shall have effect, that is to say:—

(a) the court-martial shall find specially that the accused was guilty of the act or omission charged but was insane at the time he did the act or made the omission;

(b) such person shall be kept in custody in the prescribed manner until the directions of the Minister thereon are known;

(c) the Minister may give orders for the safe custody of such person during his pleasure in such place and in such manner as he thinks fit.

(2) A finding under this section shall be subject to confirmation in like manner as any other finding.

204. —A finding of acquittal by a court-martial, whether on all or any one or more of the charges with which the accused is charged, shall not require confirmation or be subject to revision and shall be pronounced at once in open court, and, if it relates to all the charges with which the accused is charged before the court-martial, the accused shall be released.

205. —(1) An accused charged before a court-martial with desertion may be found guilty of attempting to desert or of being absent without leave.

(2) An accused charged before a court-martial with attempting to desert may be found guilty of being absent without leave.

(3) An accused charged before a court-martial with any one of the offences mentioned in section 132 may be found guilty of any other offence mentioned in that section.

(4) An accused charged before a court-martial with any one of the offences mentioned in section 133 may be found guilty of any other offence mentioned in that section.

(5) An accused charged before a court-martial with stealing may be found guilty of embezzlement or fraudulently misapplying property.

(6) An accused charged before a court-martial with embezzlement may be found guilty of stealing or fraudulently misapplying property.

(7) An accused charged before a court-martial with any other offence against military law may, on failure of proof of an offence being committed under circumstances involving a higher degree of punishment, be found guilty of the same offence as being committed under circumstances involving a less degree of punishment.

(8) Where an accused is charged before a court-martial with a civil offence and the charge is one upon which, if he had been tried by a civil court, he might have been found guilty of any other offence, the court-martial shall have power to find him guilty of that other offence.

206. —(1) Every term of penal servitude, imprisonment or detention to which a person is sentenced by a court-martial, whether the sentence has or has not been revised and whether such person is already undergoing sentence or not, shall, save as otherwise expressly provided in this Act, be reckoned to commence on the day on which the original sentence was signed by the president of the court-martial or on such earlier date as the court-martial may direct.

(2) Each of the following sentences—

(a) dismissal with ignominy from the Defence Forces,

(b) dismissal from the Defence Forces,

(c) discharge with ignominy from the Defence Forces,

(d) discharge from the Defence Forces,

(e) reduction to a lower non-commissioned army rank, or to a lower non-commissioned naval rank,

shall take effect on and from a date to be fixed in the manner prescribed.

207. —(1) Every person required to give evidence before a court-martial may be summoned or ordered to attend in the prescribed manner.

(2) Every person attending in pursuance of such summons or order as a witness before any court-martial shall during his necessary attendance in or on such court-martial and in going to and returning from the same have the same privilege from arrest as if he were a witness before the High Court.

(3) For the purposes of this and section 208 (except subsection (2) thereof)—

(a) the expression “a court-martial” shall be deemed to include an officer taking a written summary of evidence in accordance with regulations made under section 184, and

(b) references to the president or members of the court-martial shall be construed as including references to such officer.

208. —(1) If any person not subject to military law—

(a) on being duly summoned as a witness before a court-martial and after payment or tender of the reasonable expenses of his attendance makes default in attending, or

(b) being in attendance as a witness at a court-martial refuses to take an oath or make a solemn declaration legally required by the court-martial to be taken or made, or to produce any document in his power and control legally required by the court-martial to be produced by him, or to answer any question to which the court-martial may legally require an answer, or

(c) does anything, whether at the court-martial or otherwise, which, if the court-martial were a civil court having power to commit for contempt, would be contempt of court,

the president of the court-martial may certify the offence of that person under his hand to the High Court and the High Court may, after such enquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court.

(2) (a) If any person subject to military law is guilty of contempt of a court-martial by using insulting or threatening language or by causing any interruption or disturbance in the proceedings of the court-martial, the court-martial, if they think it expedient, instead of the offender being tried by court-martial, may by order under the hand of the president order the offender to be imprisoned, without hard labour, or, in the case of a man, to undergo detention, for a period not exceeding twenty-one days.

(b) Chapter VII of this Part shall not apply to an order under paragraph (a) of this subsection.