ISLAMIC SCIENCE UNIVERSITY OF

M A L A Y S I A
Faculty of Syariah and Law

LBA 1043
Malaysian
Legal
System II
Superior Court
Court Martial
© Muhammad
Nizam
Awang @ Ali

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  Definition of Terms
 Jurisdiction and Power of
Courts
 Court Members
 Conduct of Proceeding
Discussion • Convening Authorities
• Court Members
Points • Rights of Objection by
Accused
• Open/ Closed Proceeding
• Court Decision
• Confirming Officer
• Reviewing Authorities
• Punishment/ Sentencing
Legislation: Armed Forces Act
1972 2
DEFINITION
OF TERMS
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 Definition of ‘Armed Forces’
 S.2
 ‘armed forces’ includes…..
• the regular forces and volunteer forces
• of Malaysia and any other forces
• which may be declared by the YDPA
from time to time to be armed forces;

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 Definition of ‘Officer’
 S.2
• any person of or above the rank of
midshipman, or
• officer cadet who has been appointed
to or commissioned in the armed forces;
and
• any officer of any naval, military or air
forces of a foreign country duly
appointed, seconded, attached or on
loan to the armed forces;
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 Definition of ‘serviceman’?
 S.2
 Any officer other than an officer,
 who is enlisted in the regular forces
and
 any serviceman of any naval,
military or air forces of a foreign
country duly appointed, seconded,
attached or on loan to the regular
forces
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 Who is ‘on active service’?
 S.2 - ‘on active service’?
• engaged in operations against an
enemy, or
• in a country or territory outside the
Federation for the preservation of life
or property, or
• on military occupation of a foreign
country
• Note: Read together with s. 88(4)
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 COURT
JURISDICTION
& POWER

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 Jurisdiction of Court Martial

 S.103(1) - Jurisdiction
 to try any person subject

to service law for any

offence which is triable by
court-martial
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Jurisdiction of Court Martial (2)

 to award for any such

offence any punishment
authorized by this Act for
that offence

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 Jurisdiction of Court Martial (3)

 Jurisdiction to try offence

 Commit ‘civil offence’ whether in the
Federation (M’sia) or elsewhere (ouside
M’sia)– s.88(1)
 What is meant by ‘civil offence’? –
s.88(2)
• Act or omission punishable by the law
of the Federation; or
• which, if committed in the Federation,
would be punishable by that law;
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Jurisdiction of Court Martial (4)


"the corresponding civil
offence" - the
commission of civil offence
of which it constitutes an
offence against this
section.
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 Jurisdiction of Court Martial (5)

 Example of specific punishment for specific

cases:
 Offences relating to treason, murder,
manslaughter, rape:
 If the court could not award punishment, the
convicted person shall be liable to punishment
not less than dismissal with disgrace
from His Majesty's service in the case of
an officer or detention in the case of a
serviceman – s.88(3)
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 COURT
MEMBERS

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 Power of Court Martial
 What is power of the court? –
s.112(4)
• Imposed death sentence or any less
punishment
• Death sentence – only UNANOMOUS
DECISION !!!

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 Court Members
- Composition of Members -s.105(1)
- President
- Not less than 2 other officers

Note:
Members appointed must be at least
of 2 years in service (attached,
seconded or on loan) – s. 105(3)

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 Court Members (2)

Bench Sitting
 Panel member of trial an officer @ a

warrant officer
• Min. 5 officers – may try any offence
punishable with death: s. 103(4)

• If less than 5 officers, shall not award

punishment more than 2 years
imprisonment: s.103(3)
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 Court
Who are Members
the eligible (3) - s.105
members?
- Eligibility - S.105
- The ‘officers’ may appoint other members
to be in the Court Martial (Army, Navy @
Navy Force), but..
(1) The officer shall belong to the same
service
(2) If (1) is not available, may appoint
members from different service,
but must:
(a) have the requisite qualification
(b) obtain the consent of authority
of another service 18
Who areCourt Members
the eligible (4) - s.105
members?

• Quorum for Court of 5

members or more: s.105(4)
 The president:

• Shall be an officer of @ above

the rank of lieutenant-colonel or
its equivalent; and
• Shall be appointed by the order of
the officer convening the court-
martial
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 Court Members (5)

 Quorum for Court of less than 5 members -

s.105(5)
• The President:
 Shall be above the rank of major or its equivalent

 shall be appointed by order of the officer convening

the court martial; and

 Unless, in the opinion of the convening officer, major

or its equivalent is not available

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 Court Members (6)

 Ranks of Members and Accused

 Accused is or above the rank of
brigadier- general – s.105(6)
• President: shall be or above the rank of
the accused
• Other members: shall be or above the
rank of colonel

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 Court Members (7)

 Ranks of Members and Accused

 Accused is or above the rank of the
colonel – s.105(7)
• President: shall be or above the rank of
colonel
• Other members: shall be or above the
rank of lieutenant colonel

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 Court Members (8)

 Ranks of Members and Accused

 Is a lieutenant colonel - s. 105(8)
• At least 2 members (other than the
President) shall be or above the rank of
lieutenant colonel

Note:
All members (other than the
President) shall appointed by the
order of the convening officer
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CONDUCT OF
PROCEEDING

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1. Convening
Authorities

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 Convening Authorities

 Who is convening authorities –

s.104(1)
 May be convened by any qualified
officer
• (1) Authorised by the YDPA @
any officer under the command
of an officer authorised by YDPA

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 Convening Authorities (2)
 Qualification – must be a ‘qualified
officer’
(a) The Chief of the Armed Forces
Staff
(b) The Chief of the Army
(c) The Chief of the Navy
(d) The Chief of the Air Force
(e) Any officer not below the rank of
colonel or its equivalent who is in
command of a body of troops,
naval command, or of a body of 27
the air force
2. Court
Sitting

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 Court Sitting

 S.107(1)
 Place specified by the convening
authorities

 Whether within or outside the

Federation

 The trial may be convened outside the

territorial limits of his command.
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3. Rights of
Objection by
Accused

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 Rights of accused
Right of Objectionto
byobject?
Accused

 About what?: on any reasonable

grounds to any members of the
courts- 108(1)
• Procedure: s.108(2)
 name of the members shall be read

over the accused

 He shall be asked – want to object or

not?
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 Rights of Objection
Right ofbyaccused to object?
Accused (2)
 The objection shall be considered
by other court members –
s.108(3)
• Objection to the President-
s.108(4)
 Not less than 1/3 members allow
 Action: adjourn proceeding and

convening officer will appoint other

President
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 Rights of Objection
Conduct
Right of Proceeding
ofbyaccused to (3)
object?
Accused (3)
• Objection to members (officers)
other than the President – s.108(5)
 Not less than ½ allow
 Action: Such members shall

retire and appoint new member

(officer) (follow the procedure of
appointment by the convening
officer)

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 Rights of Objection
Conduct
What if of Proceeding
accused is… (7)
by Accused (3)
 If the accused is:
 Unfit to stand his trial? or
 To be not guilty because of insanity?

• Accused may file petition against

the petition (case) or finding
(decision/sentence) or both -
s.123
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 4. Open and
Closed Proceeding
(or Proceeding in
Camera)
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 Open
Open and Closed
or closed Proceeding
proceeding? -S.110
 General rule: The court shall sit in open
court – s.110(1)

 Exception: sit in closed court if…- s.110(2)

• necessary in the interests of justice;
• Thus, the public shall be excluded from all
or any part of the proceedings of the court
• The court may not disclose information that
might be directly or indirectly useful to an
enemy.

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Open and
Open or Closed
closed Proceeding
proceeding? (2)
- S.110

 But, the court shall (obligatory)

maintain to sit in camera if….
• while deliberating on their finding or
sentence on any charge – s.110(3)
• Any other deliberation among
members– s.110(4)
• No person shall be present except the
members of the court and such other
persons as may be prescribed– s.110(5)
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5. Court
Decision

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 How should the court give
Court Decision
decision? - s.112
 Decision made by votes of
majority – s.112(1)
 If votes are equal? – acquit the
accused!! – s.112(2)
 If the accused found guilty of death
sentence s- .112(3)
• Unanimous decision!! –
• No unanimous – court dissolved, and re-
trial in other court martial -
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 How should the court give
Court Decision (2)
decision? - s.112
 Equal votes on the sentence @
question arising after trial? –s.112(5)
• President shall have second or casting
vote!!

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 Court Decision (3)
 Review of Court Decision
(finding/ sentence) – s.128(1)
 Answer: Yes?
 When?: At any time!!
 By whom?: By reviewing authority
 (details are discussed under the
topic: Reviewing Authority)
 If it made under s.123, make it soon
after the presentation of the petition
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6. Confirming
Officer

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Who is Confirming
the ‘confirmingOfficer
officer’? S.126

• Who is ‘confirming officer’ - S.126

• The category of persons shall have the
power to confirm the finding/sentence:
a) the officer who convened the court
martial or any officer superior in
command to that officer;
b) the successor of any such officer or
superior officer as provided under sub.
(a); or
c) any officer appointed by the
Armed Forces Council to act as 43
confirming officer
 Confirming Officer (2)
 Who not is a ‘confirming
officer’-s.126(2)

 The following shall not have

power to confirm the finding or
sentence of a court-martial:
(a) any officer who was a member
of the court-martial;

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 Confirming Officer (3)

 Who not is a ‘confirming officer’-s.126

(2)

 (b) any person who, as commanding

officer of the accused, investigated the
allegations against him, or who is for
the time being the commanding officer
of the accused; or
 (c) any person who, as appropriate
superior officer, investigated the
allegations against the accused.
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 Confirming Officer (4)
• Power of Confirming Officer - s.125(1)
• (i) Confirming finding/sentence
• The CO may either by:

(e) withholding confirmation- if it is a

wrong decision on question of law or
irregularity in the course of the trial;

(b) confirming the finding or sentence; or

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 Confirming Officer (5)
Power of Confirming Officer (conti)

(c) referring the finding or sentence, or

both, for confirmation to a higher
confirming officer:

Provided that the confirming officer

may confirm the finding if he
considers that no miscarriage of
justice has actually occurred.

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 Confirming Officer (6)

 Power of Confirming Officer (conti)

(ii) Revision of Finding – s.124(1)
The CO may direct court to revise finding if
• the finding was against the weight of the
evidence; or
• question of law at the trial and relevant to the
finding was wrongly determined.
• Note: However, the court shall not have
power to receive further evidence-
s.124(4)

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 Confirming Officer (7)

 Confirmation of Death Sentence

 General Rule: Only shall be approved
and confirmed by the YDPA –
s.127(1)
 Exception: waiver of approval if…
• in the interests of discipline and security
of force, the confirming officer states
that opinion in the minute confirming
the sentence –s.127(2)
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7. Reviewing
Authority

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 Reviewing Authority

 Who is the reviewing authority

S.128(2):
 (a) the YDPA;
 (b) the Armed Forces Council or any
officer delegated of those powers
 (c) any officer superior in command
to the confirming officer.

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 Reviewing Authority (2)
 Power of Reviewing Authority –
s.128(4)

 Quash the finding/ sentence and, if the

sentence relates only to the finding
quashed, the sentence;
 Quash the sentence;
 Substitute findings, substituting valid for
invalid sentences and remitting or
commuting punishment as are conferred
on a confirming officer by subsections (2)
to (4) inclusive of section 125
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8. Punishment/
Sentencing

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 Punishment/ Sentencing
• Punishment against ‘Officer’ –
s.89(2)
a) death;
b) imprisonment not exceeding 14 years;
c) dismissal with disgrace from His
Majesty's service;
d) dismissal from His Majesty's service;
e) forfeiture of seniority of rank or, in
the case of an officer whose promotion
depends upon length of service,
forfeiture of all or any part of his service
for purposes of promotion;
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 Punishment/ Sentencing (2)

 Punishment against ‘Officer’ –

s.89(2)

f) dismissal of an officer from the ship to

which he belongs;
g) fine;
h) severe reprimand;
i) reprimand;
j) where the offence has occasioned any
expense, loss or damage, stoppages. 55
 Punishment/
Punishment Sentencing
of serviceman (2)
– s.90(2)
• Punishment against serviceman-
s.90(2)
(a) death;
(b) imprisonment not exceeding 14
years;
(c) work dismissal
(d) on probation not exceeding two
years
(e) If the serviceman is still active
service, may be punished

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 Punishment/ Sentencing (2)
• Punishment against serviceman- s.90(2)

(f) If the offender still active on service,

field punishment X>90 days
(g) Reduction to the ranks
(h) In the case of warrant officer or non
commissioned officer, forfeiture of
seniority of rank
(i) Where the offence is desertion or
forfeiture of service
(j) A fine
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 Punishment/ Sentencing (2)
 Punishment against serviceman-
s.90(2)
(k) In the case of warrant officer or
non-commissioned officer, sever
reprimand or reprimand
(l) Forfeiture of good conduct medal or
good conduct badges or both either in
addition to or in lieu of any other
punishment
(m) Where the offence has occasioned any
expense, loss or damage,
stoppages 58
 Case in Discussion
 Lt Kol Yusof bin Abdul Rahman v Kol
Anuar bin Md Amin & Anor [1997] 1
MLJ 562

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Recap

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 Next
Lesson Special Courts

Native Court in Sabah

Legislation: Native Court

Ordinance (Sabah) 1992

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