8 Court Martial 2007

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

1

 



Discussion Points



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 2

DEFINITION OF TERMS 3

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;

4

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; 5

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 6

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) 7

COURT JURISDICTION & POWER 8

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 

9

Jurisdiction of Court Martial (2)



to award for any such offence any punishment authorized by this Act for that offence 10

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;

11

Jurisdiction of Court Martial (4) 

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

12

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) 13

COURT MEMBERS 14

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 !!!

15

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) 16

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) 17

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

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

Members (4) - s.105 Who areCourt the eligible 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 courtmartial 19

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

20

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

21

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

22

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 23

CONDUCT OF PROCEEDING 24

1. Convening Authorities

25

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 26

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 the air force

27

2. Court Sitting

28

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. 29

3. Rights of Objection by Accused 30

Rights of accused Objectionto byobject? Accused Right of 

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? 31

Rights of Objection Right ofbyaccused to object? Accused (2) 

The objection shall be considered by other court members – s.108(3) • Objection to the Presidents.108(4) Not less than 1/3 members allow  Action: adjourn proceeding and convening officer will appoint other President 

32

Rights of Objection Conduct of Proceeding (3) Right ofbyaccused to 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) 

33

Rights of Objection Conduct of Proceeding (7) What if accused is… 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 34

4. Open and Closed Proceeding (or Proceeding in Camera) 35

Open and Closed Proceeding Open or closed 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. 36

Open and Closed Proceeding (2) Open or closed proceeding? - 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) 37

5. Court Decision

38

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 retrial in other court martial 39

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!!

40

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 41

6. Confirming Officer

42

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 confirming officer

43

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;

44

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. 45

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

46

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. 47

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 evidences.124(4) 

48

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) 49

7. Reviewing Authority

50

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. 51

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 52

8. Punishment/ Sentencing

53

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; •

54

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/ Sentencing (2) Punishment of serviceman – s.90(2) •

Punishment against servicemans.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 56

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

57

Punishment/ Sentencing (2) 

Punishment against servicemans.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

59

Recap

60

Next Lesson

Special Courts Native Court in Sabah Legislation: Native Court Ordinance (Sabah) 1992

61