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was
(1)
(2)
some question of law determined at the trial and relevant to the finding
wrongly determined.3
Any such direction must be accompanied by the necessary direction for the re-assembly
of the court-martial, and must contain a statement of the reasons for the direction. 4
On any revision of a finding, the court-martial may either adhere to it or substitute it. 5
However, the court-martial will not have the power to receive further evidence. 6
Where the court-martial either adheres to the original finding or substitutes therefor a
finding of guilty of another offence, or of the same offence in different circumstances,
the court-martial may substitute a different sentence for the original sentence. 7 However,
the court-martial does not have power to substitute a sentence of a punishment greater
than the punishment or greatest of the punishments awarded by the original sentence,
or to substitute a sentence which, in the opinion of the court-martial, is more severe
than the original sentence.8
The confirming officer will not have power to direct the revision of any substituted finding
come to by the court-martial on a previous direction of the confirming officer, or the
revision of the original finding if adhered to by the court-martial on a previous direction.
However, the Armed Forces Act 1972 will still apply to the proceedings of the courtmartial on any such revision as it applies to their deliberation on the original fining or
sentence, and any substituted finding or sentence must be treated for all purposes as
an original finding or sentence of the court-martial. 9The decision of the court-martial on
the revision shall not be required to be announced in open court. 10
2
It is to be noted that such remedy is only available to an accused person who has been
found guilty and convicted but not to the prosecution.
(2)
the Armed Forces Council or any officer to whom the powers of the Armed
Forces Council as reviewing authority may be delegated by regulations
made thereunder;
(3)
(b)
(c)
punishment
and any substituted finding or sentence, or sentence having effect after the remission or
commutation of punishment, shall be treated for all purposes as a finding or sentence of
the court-martial duly confirmed.15
Where a reviewing authority exercises any of the above powers, the determination of
the reviewing authority will be promulgated and have effect from that promulgation. 16
JUDICIAL REVIEW
Nature of the Process
Court-martial proceedings are subject to the control and supervision of the civil courts
by way of judicial review. Judicial review is a process by which the High Court exercises
its supervisory jurisdiction over the proceedings and decisions of inferior courts,
tribunals and other bodies or persons who carry out quasi-judicial functions or who are
charged with the performance of public acts and duties. 17
Judicial review is not an appeal from a decision but a review of the manner in which the
decision was made and the High Court is not entitled to an application for judicial review
to consider whether the decision itself, on the merits of the case was fair and
reasonable.18
Any aggrieved party may apply to the High Court for one of the following prerogative
orders.19
(1)
of natural
appears
Certiorari It is an order of the High Court to quash the decision of a courtmartial if it acts in excess of its jurisdiction or if it is contrary to rules
justice or where bias or interest is present or where an error of law
on the face of the record.
(2)
(3)
The Application
The application for prerogative orders consists of two stages: the application for leave to
apply for the order;20 and the substantive application itself.
Grounds of Application
The application for prerogative orders is usually based on one of the following grounds:
(1)
(2)
illegality:
(a)
(b)
irrationality:
(a)
or
(b)
(3)
procedural impropriety:
(a)
(b)
acting unfairly.
Cases
The following cases discuss further the instances of judicial review.
(1)
(2)
142,
Peter Chong Ngen Onn & Ors v Col Adam bin Abu Bakar & Ors [1977] 2 MLJ
FC
(3)
Captain Kamarul Azman bin Jamaluddin v Lt Col Wan Abdul Majid bin Abdullah &
Ors [1983] 2 MLJ 4, PC
(4)
Mejar Sundaraj v Lt Abdul Aziz bin Hanafi & Anor [1987] 2 MLJ 474
(5)
Mejar Ali Zaman bin AH Hassan v Captain Abdul Kadir & Anor [ 1989] 3 MLJ 32
(6)
Major Phang Yat Foo v Brigadier Jeneral Dato' Yahaya bin Yusof & Anor [ 1990] 1
MLJ 252
(7)
Leftenan Kolonel Harbajan Singh a/I Jagat Singh & Ors v Azmi bin Abdul
Rahman
[2001] 1 MLJ 315, CA
1 Act 77.
2 See the Armed Forces (Court-Martial) Rules of Procedure 1976 (PU (A) 163/1976) Sch
12: r 101(1).
3 Armed Forces Act 1972 s 124(1).
4 Ibid s 124(2).
5 Ibid s 124(3).
6 Ibid s 124(4).
7 Ibid s 124(5).
8 Ibid s 124(5) proviso.
9 Ibid s 124(6).
10Ibid s 124(6) proviso.
11 le under ibid s 128.
12 Armed Forces (Court-Martial) Rules of Procedure 1976 r 101(2). See also the Armed
Forces Act 1972 s 123. It is to be noted that there are no provisions for internal review
as against the findings and/or sentence of a court-martial by the prosecution.
13 Armed Forces Act 1972 s 128(2).
14 le under ibid s 124(2)-(4) and 125.
15 Ibid s 128(4).
16 Ibid s 128(5).
17 As to the nature of judicial review see 9 Halsbury's Laws of Malaysia administrative
law (OriginalTitle Scheme) [160.059],
18 Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1
MLJ417, SC.
19 See the Rules of the High Court 1980 (PU (A) 50/1980) O 53. See also 9 Halsbury's
Laws of Malaysia administrative law (Original Title Scheme) [160.110] and following.
20 Association of Bank Officers Peninsular Malaysia v Malayan Commercial Banks
Association [1990] 3 MLJ 228, SC; Tuan Hj Sarip Hamid & Anor vPatco (M) Bhd[ 1995] 2
MLJ 442, SC; Bandar Utama Development
Sdn Bhd & Anor v LLM & Anor [1998] 1 MLJ
224.