Challenges by accused
88.—(1)  The accused or, where there is more than one accused, each of the accused about to be tried by a subordinate military court may object, for any reasonable cause, to —
(a)the president of the court, except a president who is a Supreme Court Judge; and
(b)in the case of a panel court martial or a field general court martial, any other member of the court,
whether appointed to serve on the court originally or to fill a vacancy, so that the court may consist of a president or of members to whom the accused makes no reasonable objection.
[17/2004; 40/2019]
(2)  In the case of a panel court martial or a field general court martial, every objection made by an accused to any member, including the president, must be submitted to the other members appointed to form the court and —
(a)if the majority of the members entitled to vote decide that there is reasonable cause for the objection, the court must allow the objection and the member objected to must retire; or
(b)if the majority of the members entitled to vote decide that there is no reasonable cause for the objection, the court must dismiss the objection and record the reasons for its decision in the record of proceedings, and must also give those reasons to the convening authority if required to do so.
[17/2004]
(3)  Any vacancy resulting from the retirement of a member under subsection (2)(a) may be filled by another member who must be —
(a)in the case of a panel court martial — a member of the general courts martial panel who is eligible for the appointment, and who is designated by the convening authority to fill the vacancy; or
(b)in the case of a field general court martial — an officer or a senior military expert who is eligible for the appointment, and who is appointed by the convening officer to fill the vacancy,
subject to the same right of the accused to object.
[17/2004; 28/2009]
(4)  In the case of a judge court martial, if an accused objects to the president, the president must determine whether there is any reasonable cause for the objection, and —
(a)if the president decides that there is reasonable cause for the objection —
(i)the president must allow the objection and the court must be dissolved; and
(ii)the convening authority must designate another member of the general courts martial panel who is eligible for the appointment to be the president of another judge court martial convened to try the accused, subject to the same right of the accused to object; or
(b)if the president decides that there is no reasonable cause for the objection, the president must —
(i)dismiss the objection and record the reasons for his or her decision in the record of proceedings; and
(ii)give those reasons to the convening authority if required to do so.
[17/2004]
(5)  In order to enable an accused to avail himself or herself of the privilege of objecting to the president of a judge court martial or the members of a panel court martial or field general court martial —
(a)the name of each person the court consists of must be read over in the hearing of the accused when the court first assembles and, in the case of a field general court martial, before the members of the court take their oaths or affirmations;
(b)the accused must be asked whether he or she objects to that person; and
(c)a like question must be repeated in respect of any person who —
(i)is designated or appointed to fill a vacancy under subsection (3) or section 89(1)(b) or (c), (2) or (3); or
(ii)is designated to be the president of a judge court martial under subsection (4)(a)(ii) or section 89(1)(a).
[17/2004]
(6)  Where a judge court martial is dissolved under subsection (4)(a)(i), the accused may be tried again by another judge court martial.
[17/2004]
(7)  Where the convening authority has authorised the registrar for subordinate military courts or any other person to exercise the powers conferred and perform the duties imposed on the convening authority under subsection (3)(a) or (4)(a)(ii), the registrar or person is entitled to exercise those powers and perform those duties.
[17/2004]