THE PURPOSE OF MILITARY
JUSTICE IN
-Lt Col Jamal Rodzi Bin Dahari
Defining Law
The function of law has been described as follows: Law
essentially serves two functions in modern, western,
industrial society. First, it serves to regulate the affairs of
all persons, be they individuals, corporations or
governments. Secondly, law acts as a standard of conduct
and morality, variously directed at individuals and
groups, businesses and governments. In short, through
both of these functions, the law seeks to promote and
achieve a broad range of social objectives.
In effect the law is the means by which social interaction
is regulated. The law provides stability, predictability and
a means by which activity contrary to the wishes of
society can be controlled. Laws not only set out the
structural framework upon which governance is built;
they also identify the core values of a society. In
addition, this legal framework provides for courts and
administrative tribunals, which are empowered to
regulate disputes between our society and its citizens
(e.g. the criminal law) and between the citizens
themselves (e.g. civil law suits).
As part of our legal heritage, dispute resolution and other
interaction within society are governed by principles of
fairness wherein citizens are provided a meaningful
opportunity to be heard, and to have disputes resolved by
impartial arbitrators. The degree of fairness and
impartiality of the arbitrator is dependent upon the nature
of the decision being made. For example, criminal
proceedings, where the liberty of the accused may be at
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MALAYSIAN ARMED FORCES
stake, require the highest degree of fairness and
impartiality, while administrative processes, where the
liberty of an accused is not at stake, do not have to meet
as high a burden. These principles of fairness are
guaranteed in the Federal Constitution and federal
statutes such as Armed Forces Act 1972 and the Penal
Code of Malaysia.
Types of Law in Malaysia
The Supreme law of Malaysia is contained in our
Federal Constitution. There are three subsidiary types of
law:
a. Statutory law and Subsidiary
Legislations.
b. Judicial decisions (otherwise known as
the common law).
c. The executive authority of the
Federation vested in the Yang di-Pertuan Agong
and exercisable by him or by the Cabinet through
the Cabinet decisions.
Statutes are the single most important source of law. The
enactment of a law by Parliament is in many ways the
ultimate political act as it serves as a record of the
decisions made by democratically elected officials.
Indeed the use of the word Act in the title of the Armed
Forces Act (AFA) conveys that very meaning.
Legislation passed by Parliament serves a twofold
purpose: first, it constitutes one of the means by which
elected officials regulate social conduct; second, it
provides a vehicle for the injection of societal values into
that conduct. The link between political control and the
law is reflected in the term The Rule of Law (De Lex
Regula).
The Military and the Law
Since the government controls the military it should not
be surprising to find out that laws regulate it. The
military in a democracy is unique in that the most
physically destructive power of the state is concentrated
in the hands of a relatively small number of non-elected
government officials. This unique status inevitably leads
to a large number and variety of laws designed not only
to control the armed forces, but also to assist in ensuring
that the values of broader society are maintained within
the social fabric of the military. Indeed one of the true
dangers to any civilian government is armed forces that it
does not adequately control, and which does not identify
with broader societal goals.
The Political-Legal Interface Affecting Armed Service
Armed service for the state is a highly regulated activity.
The organization of the military is reflected in our
Constitution and the AFA. Control is exercised over the
armed forces through the application of the AFA,
maintaining of Service Discipline, and the regulations,
orders and instructions that flow from the Act. That is not
to say that the political control that is exercised over the
armed forces is limited to the written law of the AFA.
There is also executive authority to issue binding
direction under the Cabinet Decisions. In addition, the
Minister of Defence (MOD) exercises daily control over
defence and military activities. However, the AFA, as an
organizational document, sets out the fundamental
framework upon which civilian political control of the
military, in Malaysia, is based.
The Effect of International Law on Armed Service
The laws that govern military activity are not solely
domestic in origin. International law serves the same
purpose as its domestic counterpart. It regulates the
affairs between states and acts as a standard of conduct
and morality. Therefore, international laws such as the
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Charter the United Nations, The Hague Conventions
governing naval, land and air operations, the Geneva
Conventions and Additional Protocols I & II to the
Geneva Conventions reflect the standard of conduct
required of military forces. These laws bind the
Malaysian Armed Forces (MAF) in the conduct of its
operations in the international arena either by customary
law, or because the government has signed and ratified
the relevant treaties and conventions. Customary
international law reflects the practices of nations against
which the actions of a particular country or its armed
forces will be judged. The military, its officers and non-
commissioned officers (NCOs) being agents of the state,
is bound by Malaysia to follow the provisions of
international law when conducting military operations.
The international treaties and obligations do not solely
relate to armed conflict. The Charter of the United
Nations, the Convention of the Prevention and
Punishment of the Crime of Genocide, 1948, the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984 as well as
number of other treaties relating to the establishment and
enforcement of international human rights standards bind
the MAF.
Many of these international obligations are incorporated
directly into domestic Legislation. For example, the
Geneva Conventions Act 1962 clearly gives effect to
these international treaties on a domestic level. Similarly,
the provisions against torture and inhumane treatment
found in the 1984 Torture Convention are reflected in
section 337(Causing hurt by an act which endangers life
or the personal safety of others) and section 338(Causing
grievous hurt by an act which endangers life or the
personal safety of others) of the Penal Code. Since the
criminal laws of Malaysia are incorporated into military
law by virtue of section 88 of the AFA, members of the
MAF who torture persons under their control are subject
to penal consequences.
The Constitutional Status of Military Force in
Malaysia
The constitutional basis for the existence of an armed
force in Malaysia is found in the Federal Constitution,
which provides as follows:
Made in Office 2007 for office2007.com
Article 41. The Yang di-Pertuan Agong shall be the
Supreme Commander of the armed forces of the
Federation.
Article 137(1). There shall be an Armed Forces Council,
which shall be responsible under the general authority of
the Yang di-Pertuan Agong for the command, discipline
and administration of, and all other matters relating to,
the armed forces, other than matters relating to their
operational use.
Article 137 (2) Clause (1) has effect subject to the
provisions of any federal law, and any such law may
provide for the vesting in the Armed Forces Council of
any functions with respect to the armed forces.
It is pursuant to this authority that the AFA has been
enacted.
Constitutional recognition is also given to the military in
the preamble to the ARMED FORCES ACT 1972 that
provides as follows:
An Act to amend and consolidate the law relating to the
establishment, government and discipline of the armed
forces of Malaysia. [1 June 1976, P.U. (B) 271/1976]
Article 145 (3) The Attorney General shall have power,
exercisable at his discretion, to institute, conduct or
discontinue any proceedings for an offence, other than
proceedings before a Syariah court, a native court or a
court-martial. This specific reference to military law in
a constitutional document confirms the constitutional
validity of the separate system of military justice.
The Legislative Control of the Malaysian Armed
Forces
A review of the AFA gives a clear indication of the
pervasive impact that the law has on the organization,
command and control of the military. The whole
existence of the MAF, and the authority of its officers to
command, is dependent upon that law. For example, the
composition of the armed forces, their organization into
units and other elements, the appointment of a Chief of
Armed Forces, the Service Chiefs, the commissioning of
officers, enrolment of servicemen and appointment of
NCOs and their authority to exercise command, and
service members’ obligations and terms of service are all
provided for in the AFA. The Act also authorizes the
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making of regulations, and the issuance of orders and
instructions for the control and administration of the
armed forces.
. The AFA makes extensive provision for a system of
discipline. The Service Discipline contained within the
AFA and Regulations prescribes service offences;
provides for summary trials and court martials, and
outlines trial and appeal procedure. The fact that the
appellate courts, and ultimately the Federal Court of
Malaysia, reflect the importance given to the supervisory
role over the military justice system by civilian
institutions. In addition, the Federal Court of Malaysia
and the High Courts have a residual authority to provide
judicial review. The decisions of these civilian courts
help ensure that the essential legal principles afforded to
Malaysians by our civilian courts are reflected in its
interpretation of military law.
The AFA and Regulations also address the values and
basic principles of service life which distinguish the
military from civilian society. These principles include:
a. Duty: An unlimited liability for service
combined with a requirement to be present for
duty when ordered;
b. Obedience to authority: The obligation
to obey all lawful commands, including those
which might lead to death or serious injury and
the potential to be penalized for failing to do so;
c. Subordination to those in authority;
d. Enforcement of discipline; and
e. Welfare of subordinates.
The law is not solely about enforcing obedience in a
hierarchical fashion. It also recognizes an obligation on
members to promote the welfare, efficiency and good
discipline of subordinates; to not rebuke any member in
the presence of a subordinate except when absolutely
necessary for the maintenance of discipline; and to not do
or say anything which would cause subordinates to be
discouraged or dissatisfied with the service. The
mechanisms to lodge complaints when the treatment of
subordinates does not meet the high standards imposed
by military law include the formal redress of grievance
procedure as well as the right to complain personally to
the Commanding Officer (CO).
Procedural Fairness
Every military commander knows the importance of not
only treating subordinates fairly, but also of being
perceived to be fair. A lack of fairness on the part of a
superior can seriously undermine cohesion, morale and
discipline of subordinates thereby impacting negatively
on unit effectiveness. However, if ten military
commanders each have their own idea of what constitutes
procedural fairness; subordinates could ultimately be
unfairly treated through a lack of consistency. It should
therefore come as no surprise that military law, as a
vehicle for regulating relationships between members of
military society, must concern itself with the issue of
fairness. Fairness is not only fundamental to the
disciplinary process, but is also a foundation of the
handling of grievances and the conduct of investigations.
Many MAF policies such as release, investigation of
harassment complaints and the administration of sexual
misconduct cases reflect these fairness principles.
At law fairness is most often expressed in concepts such
as the right to reasons for a decision, the making of oral
or written submissions, rules of evidence, provision of
information, notice of any career action or charges and
right to counsel. The level of fairness provided depends
upon: the effect of any action taken against a member of
the society, the relationship between the individual and
the decision making body, and the nature of the decision.
If someone is to be imprisoned or detained they have a
right to a higher standard of procedural fairness, such as
that found at court martial. The threat of losing
employment attracts a lower standard of procedural
fairness, as exists in administrative action. Some
administrative decisions require no procedural fairness at
all.
Procedural fairness is a legal doctrine that applies to the
decision making process and existed prior to the
enactment of the AFA. It is often associated with the
terms natural justice and fundamental justice. The
principle of procedural fairness is reflected in a number
of the provisions in the AFA and Regulations.
Rights and Obligations of Military Service
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A Malaysian serving in the armed forces does not give up
the rights and obligations of Malaysian citizenship. In a
decision by the Supreme Court of Canada in MacKay v.
R: it was affirmed:
...it is a fundamental constitutional principle that
a soldier does not, by virtue of joining the armed
forces and the consequent military character he
assumes, escape the jurisdiction of the civil
courts of this country. Accordingly, the ordinary
law that applies to all citizens also applies to
members of the armed forces but by joining the
armed forces those members subject themselves
to additional legal liabilities, disabilities and
rights, that is to say Canadian military law.
Members remain protected by the rights set out in the
AFA. The record of modern warfare clearly demonstrates
that military effectiveness depends upon armed forces
being integral parts of the societies they serve, not being
isolated from them. The society in which and for which
the MAF serve is in the process of rapid legal, economic
and social change. As a result, the Forces must respect
women's rights, reject discrimination based on race or
sexual orientation and conform to other Malaysian
legislation reflecting evolving social values.
Limitation of Rights
What does change, however, is the degree to which some
of the rights provided to all Malaysians apply to
members of the MAF. For example, under section 103.
(1) A court-martial shall have the power to try any person
subject to military law for any offence which, is triable
by court-martial and to award for any such offence any
punishment authorized by the AFA for that offence.
Section 103 (2) A court-martial for the trial of an officer
or a warrant officer shall consist of at least five officers.
This section provides the right to a jury trial which is
only available in the case of an offence under military
law tried before a military tribunal. Some military
tribunals consist of a panel of military members.
Similarly, Article 10 (1) Subject to Clauses (2), (3) and
(4) states - that everyone has the right of freedom of
association, freedom of peaceful assembly, freedom of
thought, belief, opinion and expression. However,
Military Regulations and Orders may reflect legal
restrictions on the public communication of information
and candidature for office. Each of these restrictions is
based on a unique military requirement for the limitation principles, or tenets, of military service. The balancing
of communication or freedom of association. The process between enabling soldiers to enjoy the rights of
restriction on involvement in political activities is based fellow citizens, and protecting the core values of military
on the need to ensure nothing affects the actual or service (unlimited liability, obedience, etc.) is an
perceived political neutrality of the MAF. The military is important undertaking in a democracy. Should the values
such a potentially influential force in society that the of military service be undermined the armed forces could
armed forces, and those serving in it, cannot influence or become ineffective and ill disciplined. If military values
be seen to influence the outcome of political activities are upheld to the exclusion of the rights enjoyed by other
such as elections, other than by their right to vote. citizens the members of the military would become
isolated from their fellow citizens. Taken to its extreme a
The need to be apolitical in terms of outward
military force that does not enjoy, or identify with, the
appearances may at first glance seem to be at odds with
rights and values that underpin civilian society would
the requirement that the MAF be responsive to the needs
quickly become a danger to that society.
of political leaders. The answer is found in the nature of
the political interest that is to be institutionally protected.
Service authorities have a responsibility to follow
political direction and to advise the MOD and other
government officials on the proper use of the armed
forces. However, that political involvement is subservient
in nature. In contrast, the outward involvement in
political campaigning, or running for office, carries with
it a controlling function which falls outside the realm of
military service.
Balancing Rights and Limitations
Even though members of MAF cannot take an active part
in many political activities, a member still can vote. The
rights normally attached to Malaysian citizen are limited
where they are inconsistent with the basic obligations of
military service. This weighing of rights is provided for
under Malaysian law. Article 10 of the Federal
Constitution states; The Rights and Freedoms guarantees
is subject to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic
society. (Emphasis added)
In a similar fashion equality rights, such as the protection
under the International Human Rights Declaration
against discrimination on the basis of disability can be
justified where there is a bona fide occupational
requirement in respect of the military such discrimination
has, in certain cases, been justified on the basis of
universality of service, which is another way of
expressing the unlimited liability to serve or universality
of service principle.
The key to justifying the limitation on the constitutional
rights of a service member is identifying the core