MUHAMMAD MALIKI BIN ABDUL HALIM v 1. ) LEFTENAN KOLONEL-SHAIFULLIZAN BIN ABD AZIZ (PEGAWAI PEMERINTAH BATALION KE-5 REJIMEN RENJER DIRAJA) 2. ) PIHAK BERKUASA SIDANG PANGLIMA BRIGED KELAPAN INFANTRI MALAYSIA 3. ) PANGLIMA ANGKATAN TENTERA MALAYSIA 4. ) Kerajaan Malaysia

Case Significance

Defines the statutory authority for remanding a serviceman pending court-martial, the Federal Court holding that section 96(3) of the Armed Forces Act 1972 with rule 16(1) of its Rules of Procedure authorises the detention consistently with Article 5(1) of the Federal Constitution, reversing a finding of wrongful detention.

This Federal Court decision concerns the appeal on the lawfulness of a serviceman's detention, heard together with a companion appeal on the quantum of damages. The appellant, a soldier in a ranger regiment, had sued his commanding officer, the military authorities and the Government for wrongful detention connected with disciplinary proceedings under the Armed Forces Act 1972. The High Court had allowed his claim for wrongful detention, but the Court of Appeal reversed that finding, allowing the authorities' appeal, and it was against that reversal that this appeal was brought. The court granted a single leave question: whether an accused person investigated under the Armed Forces Act 1972, where the charge is not dealt with summarily, may be remanded automatically under section 96(3) of the Act without regard to the remand procedures prescribed in section 94 and rules 4, 15(1), 15(2), 16(1) and 38(1) of the Armed Forces (Court-Martial) Rules of Procedure 1976, and whether an express remand order is required under section 96(3). Recognising that once unlawful detention is alleged the burden shifts to the detaining authority to show a valid legal power, the court examined the statutory scheme against Article 5(1) of the Federal Constitution, which permits deprivation of personal liberty only in accordance with law but allows that right to be curtailed by validly enacted legislation. It held that section 96(3) of the Act, read with rule 16(1) of the Rules of Procedure, authorised the appellant's detention after the completion of investigation and during the trial before the court-martial, so that there was no infringement of Article 5(1). Finding the detention lawful, the court held it unnecessary to answer the leave question, upheld the Court of Appeal, and dismissed the appellant's appeal with no order as to costs. The judgment defines the statutory authority for remanding a serviceman pending court-martial.