8 Court Martial 2007

11

Court Martial Court Martial

LBA 1043 Malaysian Legal System II

© Muhammad Nizam

Awang @ Ali

ISLAMIC SCIENCE UNIVERSITY OF M A L A Y S I A

Faculty of Syariah and Law

Superior Court

22

Definition of Terms Jurisdiction and Power of

Courts Court Members Conduct of Proceeding

• Convening Authorities• Court Members• Rights of Objection by

Accused• Open/ Closed Proceeding• Court Decision• Confirming Officer• Reviewing Authorities• Punishment/ Sentencing

Legislation: Armed Forces Act 1972

Discussion Points

33

DEFINITION OF DEFINITION OF TERMSTERMS

44

Definition of ‘Armed Forces’ S.2S.2 ‘‘armed forcesarmed forces’’ includes includes……....

• the regular forces and volunteer forces the regular forces and volunteer forces • of Malaysia and any other forces of Malaysia and any other forces • which may be declared by the YDPA which may be declared by the YDPA

from time to time to be armed forces;from time to time to be armed forces;

55

Definition of ‘Officer’ S.2S.2

• any person of or above the rank of any person of or above the rank of midshipmanmidshipman, or, or

• officer cadetofficer cadet who has been appointed who has been appointed to or commissioned in the armed forces; to or commissioned in the armed forces; andand

• any officer of any naval, military or air any officer of any naval, military or air forces of a foreign country duly forces of a foreign country duly appointed, seconded, attached or on appointed, seconded, attached or on loan to the armed forces;loan to the armed forces;

66

Definition of ‘serviceman’? S.2S.2 Any officer other than an officer, Any officer other than an officer, who is enlisted in the regular forces who is enlisted in the regular forces

and and any serviceman of any naval, military any serviceman of any naval, military

or air forces of a foreign country duly or air forces of a foreign country duly appointed, seconded, attached or on appointed, seconded, attached or on loan to the regular forces loan to the regular forces

77

Who is ‘on active service’?

S.2 - S.2 - ‘‘on active serviceon active service’’? ? • engaged in engaged in operations against an operations against an

enemyenemy, or , or • in a country or territory outside the in a country or territory outside the

FederationFederation for the preservation of life for the preservation of life or property, or or property, or

• on on military occupation of a foreign military occupation of a foreign countrycountry

• Note: Read together with s. 88(4)Note: Read together with s. 88(4)

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COURT COURT JURISDICTION JURISDICTION

& POWER& POWER

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Jurisdiction of Court Martial

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

to to service lawservice law for any for any offence which is triable by offence which is triable by court-martial court-martial

1010

to award for any such to award for any such offence any punishment offence any punishment authorizedauthorized by this by this ActAct for for that offencethat offence

Jurisdiction of Court Martial (2)

1111

Jurisdiction to try offenceJurisdiction to try offence Commit Commit ‘‘civil offencecivil offence’’ whether in the whether in the

Federation (MFederation (M’’sia) or elsewhere (ouside sia) or elsewhere (ouside MM’’sia)sia)–– s.88(1) s.88(1)

What is meant by What is meant by ‘‘civil offencecivil offence’’?? –– s.88(2) s.88(2)• Act or omission Act or omission punishable by the law of punishable by the law of

the Federationthe Federation; or ; or • which, which, if committed in the Federation,if committed in the Federation,

would be punishable by that law; would be punishable by that law;

Jurisdiction of Court Martial (3)

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""the corresponding civil the corresponding civil offence"offence" - the commission - the commission of civil offence of which it of civil offence of which it constitutes an offence constitutes an offence against this sectionagainst this section. .

Jurisdiction of Court Martial (4)

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Example of specific punishment for Example of specific punishment for specific cases:specific cases:

Offences relating to treason, murder, Offences relating to treason, murder, manslaughter, rape: manslaughter, rape:

If the court could not award punishment, the If the court could not award punishment, the convicted person shall be liable to convicted person shall be liable to punishment punishment not less than not less than dismissal with disgrace dismissal with disgrace from His Majesty's service in the case from His Majesty's service in the case of an officer or detention in the case of of an officer or detention in the case of a serviceman a serviceman –– s.88(3) s.88(3)

Jurisdiction of Court Martial (5)

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COURT COURT MEMBERSMEMBERS

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Power of Court Martial

What is power of the court? – What is power of the court? – s.112(4)s.112(4)• Imposed death sentence or any less Imposed death sentence or any less

punishment punishment • Death sentence – only UNANOMOUS Death sentence – only UNANOMOUS

DECISION !!!DECISION !!!

1616

Court Members- Composition of MembersComposition of Members -s.105(1-s.105(1))

- President President - Not less than 2 other officersNot less than 2 other officers

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

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Bench SittingBench Sitting Panel member of trial an officer @ a Panel member of trial an officer @ a

warrant officer warrant officer • Min. 5 officers Min. 5 officers –– may try any offence may try any offence

punishable with punishable with deathdeath: s. 103(4): s. 103(4)

• If less than 5 officers, If less than 5 officers, shall not award shall not award punishment more than 2 years punishment more than 2 years imprisonmentimprisonment: s.103(3): s.103(3)

Court Members (2)

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- Eligibility - S.105 - S.105- The The ‘‘officersofficers’’ may appoint other members may appoint other members

to be in the Court Martial (Army, Navy @ to be in the Court Martial (Army, Navy @ Navy Force), but..Navy Force), but..(1) The officer shall belong to (1) The officer shall belong to the same the same

serviceservice (2) If (1) is not available, (2) If (1) is not available, may appoint may appoint members from different servicemembers from different service, , but must:but must:

(a) (a) have the requisite have the requisite qualificationqualification(b) (b) obtain the obtain the consent of consent of

authorityauthority of another service of another service

Who are the eligible members? - s.105Who are the eligible members? - s.105Court Members (3)

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Who are the eligible members? - s.105Who are the eligible members? - s.105

•Quorum for Court of 5 members or more: s.105(4): s.105(4) The president: The president:

•Shall be an Shall be an officer of @ above officer of @ above the rank of lieutenant-colonelthe rank of lieutenant-colonel or its equivalent; andor its equivalent; and

•Shall be appointed by the order of Shall be appointed by the order of the officer convening the court-the officer convening the court-martialmartial

Court Members (4)

2020

Quorum for Court of less than 5 members Quorum for Court of less than 5 members - s.105(5)• The President:The President:

Shall be Shall be above the rank of majorabove the rank of major or its equivalent or its equivalent

shall be appointed by order of the officer convening shall be appointed by order of the officer convening the court martial; andthe court martial; and

Unless, in the opinion of the convening officer, major Unless, in the opinion of the convening officer, major or its equivalent is not availableor its equivalent is not available

Court Members (5)

2121

Ranks of Members and Accused Accused is or above the rank of Accused is or above the rank of

brigadier- generalbrigadier- general – s.105(6) – s.105(6)• President: shall be or above the rank of President: shall be or above the rank of

the accusedthe accused• Other members: shall be or above the Other members: shall be or above the

rank of colonelrank of colonel

Court Members (6)

2222

Ranks of Members and Accused Accused is or above the rank of the Accused is or above the rank of the

colonel colonel – s.105(7)– s.105(7)• President: shall be or above the rank of President: shall be or above the rank of

colonelcolonel• Other members: shall be or above the Other members: shall be or above the

rank of lieutenant colonelrank of lieutenant colonel

Court Members (7)

2323

Ranks of Members and Accused Is a Is a lieutenant colonellieutenant colonel - s. 105(8) - s. 105(8)

• At least 2 members (other than the At least 2 members (other than the President) shall be or above the rank of President) shall be or above the rank of lieutenant colonel lieutenant colonel

Note: Note: AAll members (other than the ll members (other than the President) shall appointed by the President) shall appointed by the order of the convening officerorder of the convening officer

Court Members (8)

2424

CONDUCT OF CONDUCT OF PROCEEDINGPROCEEDING

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1. Convening 1. Convening AuthoritiesAuthorities

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Convening Authorities

Who is convening authorities –– s.104(1)s.104(1)

May be convened by any May be convened by any qualified qualified officerofficer• (1) (1) Authorised by the YDPAAuthorised by the YDPA @ @

any officer under the command any officer under the command of an officer authorised by YDPAof an officer authorised by YDPA

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Qualification Qualification – must be a – must be a ‘qualified ‘qualified officer’officer’

(a) (a) The Chief of the The Chief of the Armed ForcesArmed Forces StaffStaff(b) (b) The Chief of the The Chief of the ArmyArmy(c) (c) The Chief of the The Chief of the NavyNavy(d) (d) The Chief of the The Chief of the Air ForceAir Force(e) (e) Any officer not below the rank of Any officer not below the rank of colonel or its equivalent who is in colonel or its equivalent who is in command of a body of troops, command of a body of troops, naval naval command, or of a body of command, or of a body of the air forcethe air force

Convening Authorities (2)

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2. Court 2. Court SittingSitting

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

authoritiesauthorities

Whether Whether within or outsidewithin or outside the the FederationFederation

The trial may be convened outside the The trial may be convened outside the territorial limits of his command.territorial limits of his command.

Court Sitting

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3. Rights of 3. Rights of Objection by Objection by

AccusedAccused

3131

Right of accused to object?Right of accused to object?

About what?: on any reasonable About what?: on any reasonable grounds to any members of the grounds to any members of the courts- 108(1)courts- 108(1)• Procedure: s.108(2)Procedure: s.108(2)

name of the membersname of the members shall be read shall be read over the accused over the accused

He shall be asked – want to object or He shall be asked – want to object or not?not?

Rights of Objection by Accused

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Right of accused to object?Right of accused to object? The objection shall be considered The objection shall be considered

by other court members – by other court members – s.108(3)s.108(3)•Objection to the President-Objection to the President-

s.108(4)s.108(4) Not less than 1/3 members allowNot less than 1/3 members allow Action: adjourn proceeding and Action: adjourn proceeding and

convening officer will appoint other convening officer will appoint other President President

Rights of Objection by Accused (2)

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Right of accused to object?Right of accused to object?• Objection to members (officers) Objection to members (officers)

other than the Presidentother than the President – s.108(5) – s.108(5) Not less than ½ allowNot less than ½ allow Action: Such members shall Action: Such members shall retire and appoint new member retire and appoint new member (officer) (follow the procedure of (officer) (follow the procedure of appointment by the convening appointment by the convening officer)officer)

Conduct of Proceeding (3)Rights of Objection by Accused (3)

3434

What if accused is… What if accused is… If the accused is:If the accused is: Unfit to stand his trial? or Unfit to stand his trial? or To be not guilty because of insanity?To be not guilty because of insanity?

• Accused may file petition against Accused may file petition against the petition (case) or finding the petition (case) or finding (decision/sentence) or both - s.123(decision/sentence) or both - s.123

Conduct of Proceeding (7)Rights of Objection by Accused (3)

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4. Open and Closed Proceeding(or Proceeding in Camera)

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Open or closed proceeding? -S.110Open or closed proceeding? -S.110

General rule: The court shall sit in General rule: The court shall sit in openopen court – s.110(1)court – s.110(1)

Exception: sit in closed court if…- s.110(2)Exception: sit in closed court if…- s.110(2)• necessary in the interests of necessary in the interests of justicejustice; ; • Thus, the Thus, the public shall be excludedpublic shall be excluded from all from all

or any part of the proceedings of the court or any part of the proceedings of the court • The court may not disclose information that The court may not disclose information that

might be directly or indirectly might be directly or indirectly useful to an useful to an enemy.enemy.

Open and Closed Proceeding

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Open or closed proceeding? - S.110Open or closed proceeding? - S.110

But, the court shall (obligatory) But, the court shall (obligatory) maintain to sit in camera if…. maintain to sit in camera if…. • while deliberating on their while deliberating on their finding or finding or

sentence on any chargesentence on any charge –– s.110(3) s.110(3)• Any other deliberation Any other deliberation among among

membersmembers–– s.110(4) s.110(4)• No person shall be present No person shall be present except the except the

members of the courtmembers of the court and such other and such other persons as may be prescribedpersons as may be prescribed–– s.110(5) s.110(5)

Open and Closed Proceeding (2)

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5. Court Decision

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How should the court give How should the court give decision? - s.112decision? - s.112

Decision made by votes of Decision made by votes of majoritymajority – s.112(1) – s.112(1)

If votes are equal? – acquit the If votes are equal? – acquit the accused!! – s.112(2)accused!! – s.112(2)

If the accused found guilty of death If the accused found guilty of death sentence s- .112(3)sentence s- .112(3)• Unanimous decision!! –Unanimous decision!! –• No unanimous – court dissolved, and re-No unanimous – court dissolved, and re-

trial in other court martial - trial in other court martial -

Court Decision

4040

How should the court give How should the court give decision? - s.112decision? - s.112

Equal votes on the sentence @ Equal votes on the sentence @ question arising after trial? –s.112(5)question arising after trial? –s.112(5)• President shall have President shall have second or casting second or casting

vote!!vote!!

Court Decision (2)

4141

Review of Court Decision (finding/ sentence) – s.128(1) – s.128(1)

Answer: Yes?Answer: Yes? When?: At any time!!When?: At any time!! By whom?: By reviewing authorityBy whom?: By reviewing authority (details are discussed under the (details are discussed under the

topic: topic: Reviewing AuthorityReviewing Authority)) If it made under s.123, make it soon If it made under s.123, make it soon

after the presentation of the petitionafter the presentation of the petition

Court Decision (3)

4242

6. Confirming Officer

4343

Who is the ‘confirming officer’? S.126Who is the ‘confirming officer’? S.126

• Who is Who is ‘‘confirming officerconfirming officer’’ - S.126 - S.126• The category of persons The category of persons shall have the shall have the

powerpower to confirm the finding/sentence: to confirm the finding/sentence:a) the officer who a) the officer who convened the court convened the court martialmartial or any officer superior in command or any officer superior in command to that officer;to that officer;b) the b) the successorsuccessor of any such officer or of any such officer or superior officer as provided under sub. (a); superior officer as provided under sub. (a); ororc) any c) any officer appointed by the Armed officer appointed by the Armed Forces CouncilForces Council to to actact as confirming officer as confirming officer

Confirming Officer

4444

Who not is a Who not is a ‘‘confirming confirming officerofficer’’-s.126(2)-s.126(2)

The following The following shall not have shall not have power to confirmpower to confirm the finding or the finding or sentence of a court-martial:sentence of a court-martial:(a) any officer who was a member (a) any officer who was a member

of the court-martial;of the court-martial;

Confirming Officer (2)

4545

Who not is a Who not is a ‘‘confirming officerconfirming officer’’--s.126(2)s.126(2)

(b) any person who, as commanding (b) any person who, as commanding officer of the accused, investigated the officer of the accused, investigated the allegations against him, or who is for allegations against him, or who is for the time being the commanding officer the time being the commanding officer of of the accused; orthe accused; or

(c)(c) any person who, as appropriate any person who, as appropriate superior officer, investigated the superior officer, investigated the allegations against the accused.allegations against the accused.

Confirming Officer (3)

4646

• Power of Confirming Officer - s.125(1)• (i) Confirming finding/sentence• The CO may either by:

(a) 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

Confirming Officer (4)

4747

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.

Confirming Officer (5)

4848

Power of Confirming Officer (conti)(ii) Revision of Finding(ii) Revision of Finding – s.124(1) – s.124(1)The CO may direct court to revise finding if The CO may direct court to revise finding if

• the finding was the finding was against the weight of the against the weight of the evidenceevidence; or; or

• question of law at the trial and relevant to the question of law at the trial and relevant to the finding finding was wrongly determined.was wrongly determined.

• Note: Note: However, the court shall not have However, the court shall not have power to receive further evidence- power to receive further evidence- s.124(4)s.124(4)

Confirming Officer (6)

4949

Confirmation of Death Sentence General Rule: Only shall be approved General Rule: Only shall be approved

and confirmed by the and confirmed by the YDPAYDPA – – s.127(1)s.127(1)

Exception: waiver of approval if…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)

Confirming Officer (7)

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7. Reviewing 7. Reviewing Authority Authority

5151

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.

Reviewing Authority

5252

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

Reviewing Authority (2)

5353

8. Punishment/ 8. Punishment/ Sentencing Sentencing

5454

• Punishment against Punishment against ‘‘OfficerOfficer’’ –– s.89(2) s.89(2)a) deatha) death;;b) b) imprisonment imprisonment not not exceeding 14 yearsexceeding 14 years;;c) c) dismissal with disgracedismissal with disgrace from His Majesty's from His Majesty's

service;service;d) d) dismissal from His Majesty's service;dismissal from His Majesty's service;e)e) forfeiture of seniority of rankforfeiture of seniority of rank or, in the or, in the

case of an officer whose promotion depends case of an officer whose promotion depends upon length of service, forfeiture of all or any upon length of service, forfeiture of all or any part of his service for purposes of promotion;part of his service for purposes of promotion;

Punishment/ Sentencing

5555

Punishment against Punishment against ‘‘OfficerOfficer’’ –– s.89(2) s.89(2)

f) f) dismissal of an officer from the ship to dismissal of an officer from the ship to which he belongs;which he belongs;

g)g) fine;fine;h)h) severe reprimand;severe reprimand;i)i) reprimand;reprimand;j)j) where the offence has occasioned any where the offence has occasioned any

expense, loss or damage, stoppagesexpense, loss or damage, stoppages..

Punishment/ Sentencing (2)

5656

Punishment of serviceman – s.90(2)Punishment of serviceman – s.90(2)

• Punishment against serviceman-Punishment against serviceman- s.90(2)s.90(2)(a)(a) death;death;(b)(b) imprisonment not exceeding 14 imprisonment not exceeding 14

years;years;(c)(c) work dismissal work dismissal (d)(d) on probation not exceeding two on probation not exceeding two

years years (e)(e) If the serviceman is still active If the serviceman is still active

service, may be punishedservice, may be punished

Punishment/ Sentencing (2)

5757

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

(f) (f) If the offender still active on service, If the offender still active on service, field punishment X>90 daysfield punishment X>90 days

(g)(g) Reduction to the ranksReduction to the ranks(h)(h) In the case of warrant officer or non In the case of warrant officer or non

commissioned officer, forfeiture of commissioned officer, forfeiture of seniority of rankseniority of rank

(i)(i) Where the offence is desertion or Where the offence is desertion or forfeiture of service forfeiture of service

(j)(j) A fine A fine

Punishment/ Sentencing (2)

5858

Punishment against serviceman-Punishment against serviceman- s.90(2)s.90(2)

(k)(k) In the case of warrant officer or In the case of warrant officer or non-commissioned officer, sever non-commissioned officer, sever reprimand or reprimand reprimand or reprimand

(l)(l) Forfeiture of good conduct medal or Forfeiture of good conduct medal or good conduct badges or both either good conduct badges or both either

in in addition to or in lieu of any other addition to or in lieu of any other punishmentpunishment

(m)(m) Where the offence has occasioned Where the offence has occasioned any any expense, loss or damage, expense, loss or damage, stoppagesstoppages

Punishment/ Sentencing (2)

5959

Case in Discussion Lt Kol Yusof bin Abdul Rahman v Kol Lt Kol Yusof bin Abdul Rahman v Kol

Anuar bin Md Amin & Anor [1997] 1 Anuar bin Md Amin & Anor [1997] 1 MLJ 562MLJ 562

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Recap

6161

Next Lesson Special CourtsSpecial Courts

Native Court in SabahNative Court in Sabah

Legislation: Native Court Ordinance (Sabah) 1992