court martial Flashcards
introduction
Court-martial (CM) proceedings are out of the purview of the AG – see art 145(3) Federal Constitution; see also Peter Chong Ngen Onn v Col Adam bin Abu Bakar [1977] 2 MLJ 142;
CM proceedings are instituted by a Commanding Officer who has the power to decide what charge to be framed based on his investigation (s. 146 Armed Forces Act 1972 “AFA”));
CM has unique powers that does not exist in ordinary civil
proceedings such as the power to dismiss the accused from
the accusation without being charged (s. 146 AFA)
law for armed forces
Armed forces in Malaysia are subject to both civil (ordinary) law and military law;
intro for law armed
When a person joins the army, he is subject to an additional body of law i.e. the military law or service law in addition to the civil laws that he is already a subject of before joining the army;
Members of the armed forces are subject to AFA from the moment they complete their attestation either to undergo officer cadet training or become an enlisted personnel;
If he commits an offence which falls under the jurisdiction of the civil and military court, he can be tried by either court. See Robin AK Bandang & Ors v PP [1998] 4 MLJ 629
sources of military law
Main sources of military law:
(a) the Armed Forces Act 1972
(b) the rules and procedure made under the AFA (c) all other regulation made under AFA
Types of Armed Forces in Malaysia
3 types of Malaysian Armed Forces under the AFA 1972:
(a) the regular forces (angkatan tetap Malaysia);
(b) the regular forces reserve (simpanan angkatan tetap); (c) the volunteer forces (angkatan sukarela persekutuan)
(a) The Regular Forces
See s. 4 AFA – the regular forces shall consist of: (i) the Malaysian Army (Tentera Darat Malaysia);
(ii) the Royal Malaysian Navy (Tentera Laut Diraja Malaysia); dan
(iii) The Royal Malaysian Air Force (Tentera Udara Diraja Malaysia)
2 modes of joining the Regular Forces:
(1) by commissioning for officers by YDPA
(pentauliahan pegawai) – s. 6 AFA:
(2) by enlistment for servicemen (other ranks)
(pendaftaran angkatan tetap) – s. 16 AFA 14
(subject ro service law)
(b) The Regular Forces Reserve
Consists of:
(1) officers of the regular forces who are required to serve in a Reserve of Officers (Simpanan Pegawai- Pegawai) for a period of 5 years after their termination, resignation, completion of or retirement from service under s. 188(1) AFA - [s. 189(1)(a) AFA];
(2) all servicemen of the regular forces who, at the commencement of the Act are serving in the reserve in pursuance of the terms of their enlistment – [s. 189(1)(b) AFA]
(3) all servicemen of the regular forces who in pursuance of the terms of their enlistment are transferred to the reserve on the completion of their full time service – [s. 189(1)(c) AFA].
*******
(1)-(3) above are subject to service law when called out for service or for training under Part VIII AFA – s. 209(1)(d) AFA
(c) The Volunteer Forces
Every service of the Regular Forces has a supporting service known as the auxiliary service;
Types of Force >Volunteer
Army >Askar Wataniah Malaysia
Navy >Simpanan Sukarela Tentera Laut Diraja Malaysia
Air Force >Simpanan Sukarela Tentera Udara Malaysia
When are volunteer forces subject to service law?
In circumstances describe in:
(i). S. 209(1)(e);
(ii). S. 209 (1) (f) (i); (iii). S. 209 (1) (f) (ii); (iv). S. 209 (1) (f) (iii)
jurisdiction
S. 103 (1) AFA:
A court martial shall have the power to try –
● any person subject to service law under AFA;
● for any offence triable under AFA; and to
● award punishment authorised by AFA
who are subject to service law
See s. 209(1) (a)-(f) AFA
Court martial has no jurisdiction to try civil disputes between service personnel
Service law
(i). Civilians who embark as passengers on board of military ships and aircrafts (s. 211 AFA); or
(ii). Civilians who are employed by or in the service of or who follows or accompanies the regular forces an active service (s.212 AFA) ; or
(iii). Civilians who have been duly summoned as a witness before a court martial (s. 117 AFA).
offences triable in CM
Offences triable by the Court Martial are provided in Part V AFA, ss 38-88.
s88 AFA
1. makes it an offence for any member of the armed
forces to commit a civil offence;
2. Under s. 88, any offence known to law may be charged and tried by a CM – eg. Offences under Penal Code, Fire Arms Act, DDA, Prevention of Corruption Act etc;
- However, the punishment that can be imposed shall be as those prescribed by s. 89 and 90 AFA and NOT under the relevant statute that creates the offence;
4. Mohd. Yusof B. Mohd. Salleh v Pihak Berkuasa yang Mengadakan Mahkamah Tentera TLDM – it was held that an offence of possession of cannabis under DDA is a ‘civil offence’ within the meaning of s. 88 and therefore, CM has jurisdiction to try the offence.
