OFFENCES AGAINST MILITARY LAW

The main Offences against military law are set out in the Armed Forces Act 1972.
The offences fall into two main categories:
a) Discipline offences and
b) Criminal conduct offences.
A second distinction is between those offences that can be;
a) Dealt with by a Commanding Officer in a summary hearing, and
b) Offences that can only be heard by the Court Martial

DISCIPLINE OFFENCES
Discipline offences are those offences that can only be committed by members of the
armed forces or, in a few cases, by a civilian subject to military law.
The table below lists the principal discipline offences, and indicates for each offence:

◾ Whether it can be committed by a civilian subject to military law as well

as members of the armed forces.

◾ Whether a commanding officer can deal with the offence at a summary

trial (offender is a civilian subject to military law).

◾ The maximum sentence available to a Court Martial trying the offence.

The maximum punishment that a Commanding Officer hearing a charge
summarily can impose is generally 28 days in service detention, or up to 90
days with the authority of a Confirming Authority.

PART V
SERVICE OFFENCES
Offences in Respect of Military Service
Section Offence May be Dealt
With
38. Aiding the enemy CM
39. Misconduct by commanders when in action CM
40. Misconduct by other persons in operations against the enemy CM
41. Communication with the enemy CM
42. Offences against morale CM
43. Becoming prisoner of war through disobedience or willful neglect; CM
and failure to rejoin forces
44. Offences by or in relation to sentries, etc. CO
45. Offences relating to supplies CM
46. Looting CO-46(c)

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Mutiny and Insubordination
47. Mutiny CM
48. Failure to suppress mutiny CM
49. Insubordinate behavior CO
50. Disobedience to superior officer CO-50(2)
51. Disobedience to standing orders CO
52. Obstruction of provost officers CO
53. Obstruction of police officer arresting a member of the armed CM
forces
Avoidance of or Failure to Perform Military Duties
54. Desertion CM
55. Absence without leave CO
56. Assisting and concealing desertion and absence without leave CO
57. False statements in respect of leave CO
58. Failure to attend parades or to perform duties CO
59. Malingering CO-59(1)(a)
60. Drunkenness CO
Offences Relating to Property
61. Offences in relation to public and service property CO-61(c),(d)
62. Offences in relation to property of members of the armed forces CO-62(c)
63. Miscellaneous offences relating to property CO
Offences Relating to, and by, Persons in Custody
64. Irregular arrest and confinement CO
65. Permitting escape, and unlawful release of prisoners CO-65(2)
66. Resistance to arrest CO
67. Escape from lawful custody CO
Navigation and Flying Offences
68. Loss or hazarding of ships or aircraft CM
69. Dangerous flying, etc. CM
70. Low flying CM
71. Annoyance by flying CM
72. Inaccurate certification CO-72(a),(b)
73. Prize offences by commanding officers CM
74. Other prize offences CM
Offences Relating to Service Tribunals
75. Offences in relation to courts-martial CM
76. False evidence CM
Miscellaneous Offences
77. Falsifying service documents CM
78. False accusations, etc. CM
79. Unauthorized disclosure of information CM
80. Attempting to commit suicide CM
81. Ill-treatment of officers or servicemen of inferior rank CO-81(b)
82. Unlawful detention of pay CM
83. Disgraceful conduct CM
84. Improper carriage of goods CM

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 85. Scandalous conduct of officers CM
86. Attempts to commit offences against this Act CO-(where the
principal offence can
be dealt summarily)
87. Conduct to the prejudice of service discipline CO
88. Civil offences CO-( where the civil
offence can be dealt
summarily)

38. Aiding the enemy

Elements – (1) A person who is subject to service law is guilty of an offence if

with intent to assist the enemy knowingly and without lawful excuse
does;
(a) abandons or delivers up any place or post which it is his duty
to defend, or induces any person to abandon or deliver up any
place or post which it is that person’s duty to defend;
(b) surrenders any ship or aircraft to the enemy when it is capable
of being successfully defended or destroyed;
(c) surrenders any base, airfield or other defence establishment
or installation to the enemy when it is capable of being
successfully defended or when it is his duty to cause it to be
destroyed;
(d) does any act calculated to imperil the success of operations
of His Majesty’s armed forces, of any forces co-operating
therewith or of any part of any of those forces;
(e) having been made a prisoner of war, serves with or aids the
enemy in the prosecution of hostilities or of measures calculated
to influence morale, or in any other manner whatsoever not
authorized by international usage;
(f) furnishes the enemy with arms or ammunition or with supplies
of any description or with any other thing likely to assist him;
(g) harbours or protects an enemy not being a prisoner of war;
(h) gives any false air signal or alters or interferes with any air
signal or any apparatus for giving an air signal;
(i) when ordered by his superior officer, or otherwise under orders,
to carry out any warlike operations in the air fails to use his utmost
exertion to carry such orders into effect; or

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 (j) causes the capture or destruction by the enemy of any of His
Majesty’s ships or aircraft or the ships or aircraft of any force co-
operating with His Majesty’s armed forces,
shall, on conviction by court-martial, be liable to suffer death or any other
punishment provided by this Act.
(2) Where the act without intent to assist the enemy, be liable to
imprisonment or any less punishment provided by this Act.
(3) Where the act negligently causes the enemy to capture or
destruction of any ships or aircraft of His Majesty’s or any force co-
operating with His Majesty’s armed forces be liable to imprisonment or
any less punishment provided by this Act.
Maximum: Imprisonment for 14 years.

39. Misconduct by commanders when in action

Elements – Every officer who is subject to service law, being in command of a unit,
ship, aircraft, defence establishment or other element of the armed forces is guilty of
an offence –
(a) when under orders to carry out an operation of war or on coming into
contact with the enemy that it is his duty to engage, fails to use his utmost
exertion to bring the officers and servicemen under his command or his unit,
ship, aircraft or other element into action;
(b) during the action he does not in his own person and according to his
rank, encourage the officers and servicemen under his command to fight
courageously;
(c) improperly withdraws from the action; or
(d) improperly fails to pursue the enemy or to consolidate any position
gained
shall, be liable to imprisonment or any other punishment provided by this Act.
Maximum: Imprisonment for 14 years.

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 40. Misconduct by other persons in operations against the enemy

Elements – Every officer who is subject to service law, when not in command of any
unit, ship, aircraft, defence establishment or other element of the armed forces is guilty
of an offence –
(a) improperly delays or discourages any action against the enemy;
(b) when ordered to carry out an operation of war, fails to use his utmost
exertion to carry out the orders into effect;
(c) throws away his arms, ammunition or tools in the presence of the enemy;
(d) leaves his post in the presence of the enemy; or
(e) behaves before the enemy in such manner as to show cowardice,
shall, be liable to imprisonment or any less punishment provided by this Act.
Maximum: Imprisonment for 14 years.

41. Communication with the enemy

Elements – (1) Every person subject to service law if with intent to assist the
enemy communicates with or gives intelligence to the enemy is guilty of
an offence-
shall, be liable to suffer death or any other punishment provided by this
Act.
(2) Every person subject to service law who communicates with or
gives intelligence to the enemy without authority is guilty of an offence-
shall, be liable to imprisonment or any less punishment provided by this
Act.
(3) In this section the expression “intelligence” means information as
to any matter that would or might be directly or indirectly useful to the
enemy:
(a) the number, description, armament, equipment,
disposition, movement or condition of any of His Majesty’s armed
forces or of any forces co-operating therewith or any of His
Majesty’s ships or aircraft or of the ships or aircraft of any such
co-operating force;
(b) any operations or projected operations of any of such
forces, ships or aircraft as aforesaid;
(c) any code, cipher, call sign, password or countersign;

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 (d) any measures for the defence or fortification of any place
on behalf of His Majesty;
(e) the number, description or location of any prisoners of war;
(f) munitions of war.
Maximum: Imprisonment for 14 years.

42. Offences against morale

Elements - Every person subject to service law is guilty of an offence, who –

(a) spreads (whether orally, in writing, by signal, or otherwise) reports
relating to operations of His Majesty’s armed forces, of any forces co-operating
therewith, or of any part of any of those forces, being reports calculated to
create despondency or unnecessary alarm; or
(b) when before the enemy uses words calculated to create despondency
or unnecessary alarm,
shall, be liable to imprisonment or any less punishment provided by this Act.
Maximum: Imprisonment for 14 years.

43. Becoming prisoner of war through disobedience or willful neglect; and

failure to rejoin forces

Elements - Every person subject to service law is guilty of an offence, who –

(1) Through disobedience to orders or wilful neglect of his duty, is captured
by the enemy
(2) having been captured by the enemy, fails to take, or prevents or
discourages any other person captured by the enemy from taking, any
reasonable steps to rejoin His Majesty’s service
shall, be liable to imprisonment or any less punishment provided by this Act.
Maximum: Imprisonment for 14 years.

44. Offences by or in relation to sentries, etc.

Elements - (1) Every person subject to service law is guilty of an offence, who –
while on guard duty—
(a) sleeps at his post;

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 (b) when not on duty at a post, is asleep at a time when he is
not allowed to be asleep;
(c) is drunk; or
(d) leaves his post without having been regularly relieved or
absents himself from any place where it is his duty to be,

(2) For the purposes of this section a person shall be treated as

being drunk if owing to the influence of alcohol or any drug, whether
alone or in combination with any other circumstances, he is unfit to be
entrusted with his duty.
(3) Every person subject to service law shall be guilty of an offence-
who strikes or uses force against any person on guard duty, being a
member of any of His Majesty’s armed forces or of any forces co-
operating therewith, or by the threat of force compels any such person
to let him or any other person pass.
(4) shall be liable to imprisonment or any less punishment provided
by this Act:
(5) References in this section to a person on guard duty are
references to a person who—
(a) is posted or ordered to patrol; or
(b) is a member of a guard or other party mounted or ordered
to patrol,
for the purpose of protecting any person, premises or place.
(6) The foregoing provisions shall apply in relation to persons posted
or ordered to patrol, or members of a party mounted or ordered to patrol,
for the purposes of preventing or controlling access to or egress from
any premises or place, or of regulating traffic by road, by rail or any inland
navigation, as they apply to persons on guard duty.
Provided that if the offence was not committed on active service he shall not be
liable to be imprisoned for more than two years.
Maximum: - (in active service) Imprisonment for 14 years.
- (not in active service) Imprisonment for 2 years.

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45. Offences relating to supplies

(a) does violence to any person bringing provision or supply to

the armed forces or to any co- operating forces;
(b) irregularly detains any provision or supply conveyed to any
unit or other element of the armed forces or of any co-operating forces;
(c) irregularly appropriates any provision or supply conveyed
to any other unit or other element of the armed forces or of any forces
co-operating to the unit with which he is serving.
shall, be liable to imprisonment or any less punishment provided by this Act.
(2) In this section the expression “any provision or supply” includes any ship,
vehicle, aircraft, animal, missile, arms, ammunition, equipment, clothing and
any article of any kind or description intended for the use or consumption of the
armed forces.
Maximum: Imprisonment for 14 years.

46. Looting

Elements - Every person subject to service law is guilty of an offence who—

(a) stealing property or searching such a person with intent to steal property
from a person killed, injured or captured in operations of war
(b) breaks into any house or other place in search of plunder;
(c) without orders from his superior officer wilfully destroys or damages any
property;
(d) steals any property which has been left exposed or unprotected in as
a result of operations of war; or
(e) Taking a vehicle, equipment or stores abandoned by the enemy, unless
for the public service,
shall be guilty of looting and liable to imprisonment or any less punishment
provided by this Act.
Maximum: Imprisonment for 14 years.

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 Mutiny and Insubordination
Mutiny is a conspiracy among a group of individuals (typically members of the military;
or the crew of any ship, even if they are civilians) to openly oppose, change or
overthrow an authority to which they are subject. The term is commonly used for a
rebellion among members of the military against their superior officer(s), but can also
occasionally refer to any type of rebellion against an authority figure.
Today the Armed forces Act 1972 defines mutiny as follows:

“mutiny” means the combination between two or more persons subject to service law
or between persons two at least of whom are subject to service law—
(a) to overthrow or resist lawful authority in the armed forces or in forces co-operating
therewith or in any part of the said forces;
(b) to disobey such authority in such circumstances as to make the disobedience
subversive of discipline; or with the object of avoiding any duty or service against, or
in connection with operations against, the enemy; or
(c) to impede the purpose of any duty or service in the armed forces or in forces co-
operating therewith or in any part of the said forces.

47. Mutiny

Elements - Every person subject to service law is guilty of an offence if —

(a) takes part in a mutiny involving the use of violence or the threat to
use violence; and
(b) the mutiny’s object, or one of its objects, is the refusal or avoidance of
duty or service in connection with operations against the enemy or the impeding
of the performance of such a duty or service; or
(c) incites any other person subject to service law to take part in such a
mutiny, whether actual or intended,
shall, be liable to suffer death or any less punishment provided by this Act.
Maximum punishment: suffer death
Maximum Imprisonment : (in a case not falling within subsection (a),(b),(c))
Imprisonment for 14 years.

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 48. Failure to suppress mutiny

Elements - Every person subject to service law is guilty of an offence if with intent
to assist the enemy —
(a) he knows that fact a mutiny is taking place or is intended; and
(b) fails to use his utmost endeavour to take reasonable steps:
(i) to prevent or to suppress the mutiny; or
(ii) fails to report without delay that a mutiny is taking place or is
intended,
shall, be liable—
(i) to suffer death or any less punishment provided by this Act;

(ii) and If no intent to assist the enemy or in any other case to suffer
imprisonment or any less punishment provided by this Act
Maximum punishment: Imprisonment for 14 years.

49. Insubordinate behavior

Elements - Every person subject to service law is guilty of an offence if —

(a) strikes or uses violence to or offers violence to a person; or
(b) uses threatening or insubordinate language to a person; and
(c) that person is a superior officer, or his superior officer;
shall, be liable to imprisonment or any less punishment provided by this Act:
Provided that he shall not be liable to imprisonment for more than two years if
the offence was not committed on active service and did not involve the striking
or other use of violence or offering of violence to a superior officer exercising
authority as such.
Maximum: - (in active service) Imprisonment for 14 years.
- (not in active service and did not involve violence) Imprisonment
for 2 years.

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 50. Disobedience to superior officer

Elements - (1) Every person subject to service law is guilty of an offence whether
wilfully or through neglect if —
(a) a person gives a lawful command; and
(b) the person giving the command is a superior officer ; and
(c) in such manner as to show wilful defiance of authority he disobeys
the lawful command
shall be liable to imprisonment or any less punishment provided by this Act.
Maximum: - (in active service) Imprisonment for 14 years.
- (not in active service) Imprisonment for 2 years..

51. Disobedience to standing orders

Elements - Every person subject to service law is guilty of an offence if —

(1) contravenes or fails to comply with any provision of orders, being a
provision known to him or which he might reasonably be expected to know,

shall be liable to imprisonment or any less punishment provided by this Act.

Maximum: - Imprisonment for 2 years.
(2) This section applies to standing orders or other routine orders of a
continuing nature for any formation or unit or body of troops, or for any
command or other area, establishment, garrison or place, or for any ship, train
or aircraft.
(3) The standing orders or other routine orders described in subsection (2)
may be—
(a) made by; and
(b) published in such manner as may be determined by, the Service
Chief for each Service or any officer authorized by him.
NOTES:
In militaries and paramilitary organizations, a general order is a published directive,
originated by a commander, and binding upon all personnel under his command, the
purpose of which is to enforce a policy or procedure unique to his unit's situation which
is not otherwise addressed in applicable service regulations, military law, or public law.
A general order has the force of law; it is an offense punishable by court martial or

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lesser military court to disobey one. What makes it a general order (as opposed to a
direct order), is that the actor is not explicitly named, nor precisely that (or whom)
which is to be acted upon.
A general order of indefinite duration may be referred to as a standing order. Standing
orders are necessarily general and vague since the exact circumstances for execution
occur in the future under unknown conditions. For example, in most military agencies
there is a standing order for enlisted men to salute officers. The officers are required
by the same law to return the salute to the enlisted person; however, the name of each
enlisted man is not explicitly named in the order, nor is the name of each officer, nor
is the exact time which the salute should occur.

52. Obstruction of provost officers

Elements - Every person subject to service law is guilty of an offence if —

(a) obstructs; or
(b) when called on, refuses to assist,
any provost officer or a person legally exercising authority under
or on behalf of a provost officer
shall, be liable to imprisonment or any less punishment provided by this Act.
Maximum: - Imprisonment for 2 years.

NOTES:
The Kor Polis Tentera DiRaja (Royal Military Police Corps) performs military police
duties in the Malaysian Army. Apart from enforcing discipline and conduct of members
of the Army, the Corps oversees security of designated Army installations, performs
escort and ceremonial duties, and assists civil law enforcement authorities. The Kor
Polis Tentera is also tasked with crime prevention and investigating criminal activities
on Army property or by military personnel. With its roots in the British Royal Military
Police, members of the Kor Polis Tentera DiRaja also wear the distinctive red peaked
cap, white lanyard and belt, as well as a black brassard with the letters "PT" imprinted.
PT stands for "Polis Tentera", the Malay words for "Military Police". Military police on
traffic duty wear armbands sporting the letters "MP" in red.

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53. Obstruction of police officer arresting a member of the armed forces

Elements - Every person subject to service law is guilty of an offence if at any

place in Malaysia prevents or obstructs—
(a) the execution by a police officer of a warrant for the arrest
of a service members person who has committed or is suspected
of having committed an offence punishable on conviction by a civil
court; or
(b) the arrest of a service members by a police officer in the
exercise of his powers without warrant,
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - Imprisonment for 2 years.

Avoidance of or Failure to Perform Military Duties

54. Desertion

Elements – (1) Every person subject to service law is guilty of an offence if—
(a) deserts; or
(b) persuades, endeavours to persuade, procures or attempts
to procure any service person to desert,
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - (in active service) Imprisonment for 14 years.
- (not in active service) Imprisonment for 2 years
Provided that a person shall not be liable to be imprisoned for more than
2 years unless—
(i) he was on active service or under orders for active service at the
time when the offence was against paragraph (a)( desertion) was
committed; or
(ii) the person in relation to whom the offence against paragraph (b),
was on active service or under orders for active service at the time when
the offence was committed.
(2) For the purposes of this Act a person deserts means who—

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 (a) leaves His Majesty’s Service, or when it is his duty to do so, fails
to join or rejoin His Majesty’s Service, with (in either case) the intention,
either subsisting at the time of the leaving or failure or formed thereafter,
of remaining permanently absent from his duty;
(b) absents himself without leave with intent to avoid serving at any
place overseas or to avoid service or any particular service when before
the enemy;
(c) in the case of a sailor having been warned that his vessel is under
sailing orders, is absent without proper authority, with the intention of
missing that vessel; or
(d) being an officer enlists in or enters any of the armed forces
without having been relieved of his commission, or being a serviceman
enlists in or enters any of the armed forces without having been
discharged from his previous enlistment,
and references to desertion shall be construed accordingly.
(3) In addition to or in lieu of any punishment provided by subsection (1), the
court-martial by whom a serviceman is convicted of desertion may direct that
the whole or any part of his service previous to the period as respects which he
is convicted of having been a deserter shall be forfeited.
NOTES:
In the United Kingdom, United States, and Canada, military personnel will become
AWOL (Absent Without Leave) when they are absent from their post without a valid
pass or leave. In Malaysia Personnel are dropped from their unit rolls after 21 days, a
Board of Inquiry will be convene and the findings of the board will confirm that the
absentees will be publish as deserters; however, as a matter of law, desertion is not
measured by time away from the unit, but rather:

◾ by leaving or remaining absent from their unit, organization, or place of duty, where
there has been a determined intent to not return;

◾ if that intent is determined to be to avoid hazardous duty or shirk contractual

obligation;
People who are away for more than 21 days but return voluntarily or indicate a credible
intent to return may still be considered AWOL. However, even though those who are
away for fewer than 21 days but can be credibly shown they have no intent to return
(for example, by joining the armed forces of another country or throw away their
uniform) may be tried for desertion. In rare occasions, they may be tried for treason if
enough evidence is found.

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55. Absence without leave

Elements – (1) Every person subject to service law is guilty of an offence if—
(a) absents himself without leave; or
(b) persuades, endeavours to persuade, procures or attempts to procure
any person subject to service law under this Act to absent himself without leave,
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - Imprisonment for 2 years
NOTES:
 Intentionally or negligently being absent without leave
 Recklessly doing an act that causes him to be absent without leave

56. Assisting and concealing desertion and absence without leave

Elements – Every person subject to service law is guilty of an offence if—

(a) knowingly assists any service person to desert or absent himself without
leave; or
(b) knowing that any service person has deserted or absented himself
without leave, or is attempting to desert or absent himself without leave, fails to
report that fact without delay, or fails to take any steps in his power to cause
that person to be apprehended,
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - Imprisonment for 2 years

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 57. False statements in respect of leave

Elements – Every person subject to service law is guilty of an offence if—

For the purpose of obtaining leave or prolonging his leave,
knowingly makes any false statement to any service authority, to any
police officer or to any person authorized by or under instructions of the
Armed Forces Council to act for the purposes of obtaining prolongation
of leave
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - Imprisonment for 2 years

58. Failure to attend parades or to perform duties

Elements – Every person subject to service law is guilty of an offence if—

Without reasonable excuse fails to attend any parade or other duty of any
description or leaves any such parade or duty as aforesaid before he is permitted to
do so
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - Imprisonment for 2 years

NOTES:
Without reasonable and lawful excuse:

◾ failing to attend for duty

◾ leaving a duty early

◾ failing to perform a duty

◾ Performing a duty negligently

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 59. Malingering

Elements – (1) Every person subject to service law is guilty of an offence if ---
(a) falsely pretends to be suffering from sickness or disability;
(b) injures himself with intent thereby to render himself unfit for
service or causes himself to be injured by any person with that
intent;
(c) injures any person subject to service law under this Act, at
the instance of that other person, with intent thereby to render
that other person unfit for service; or
(d) with intent to render himself or keep himself unfit for
service, does or fails to do anything (whether at the time of
the act or omission he is in hospital or not) whereby he produces, or
prolongs or aggravates, any sickness or disability,
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - Imprisonment for 2 years
(2) In this section, the expression “unfit” includes temporarily unfit.
NOTES:

◾ Pretending to have an injury or disease, or aggravating or prolonging an injury or

disease, to avoid service

◾ Causing himself an injury, or causing another to injure him, to avoid service

◾ Injuring another, or aggravating or prolonging the injury of another, to help him to

avoid service.

60. Drunkenness

Elements – Every person subject to service law is guilty of an offence if ---

(1) guilty of drunkenness whether on duty or not
shall, be liable to imprisonment or any less punishment provided by this
Act.
Maximum: - (in active service) Imprisonment for 2 years.
- (not in active service) detention for a period of six
months.

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 (2) For the purposes of this section a person is guilty of drunkenness
if owing to the influence of alcohol or any other drug, whether alone or in
combination with any other circumstances, he is unfit to be entrusted
with his duty or with any duty which he might be called upon to perform,
or behaves in a disorderly manner or in any manner likely to bring
discredit on His Majesty’s Service.
NOTES:
 Due to the influence of alcohol or any intoxicant (unless given on medical advice
or the orders of a superior officer)
 being unfit to be entrusted with a duty
 behaving in a disorderly manner

to be continued…..

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