Dr. Faiz Azraai Bin Abdul Aziz v 1. ) Pegawai Memerintah Markas 11 Briged Infantri 2. ) Panglima Markas Divisyen Keempat Infantri 3. ) Panglima Tentera Darat 4. ) Majlis Angkatan Tentera 5. ) Kementerian Pertahanan 6. ) Kerajaan Malaysia

Case Significance

Illustrates the distinction under the Armed Forces Act 1972 between detention pending court-martial (section 96) and remand pending investigation (section 94), and the confinement of the delay-report safeguard to the investigation stage, so that a lengthy detention pending court-martial is not rendered unlawful by the absence of a delay report.

This Court of Appeal decision, in which Azizah binti Nawawi JCA delivered the grounds, concerns the lawfulness of a serviceman's detention pending trial by court-martial. The appellant, an army medical officer, had been placed under close arrest and detained for 114 days pending court-martial, and had sued the military commanders in his chain of command, the Armed Forces Council, the Ministry of Defence and the Government, contending that his detention was unlawful. The High Court dismissed his claim, and he appealed. The central questions concerned the interpretation of the Akta Angkatan Tentera 1972 (the Armed Forces Act 1972), and in particular the distinction between detention pending trial by court-martial under section 96 and remand pending investigation under section 94, together with the requirement for a report where there is a delay.

The appellant's argument depended on treating the safeguards attaching to remand pending investigation — including the delay-report requirement under section 94(2), reflected in the Armed Forces (Rules of Procedure) rules — as applicable to his 114-day detention. The Court of Appeal rejected that equation. Following its own decision in Leftenan Kolonel Shaifullizan Abd Aziz, it held that the delay-report requirement under section 94(2) and the corresponding rule apply only to a delay in the investigation, and not to a case that is pending trial by court-martial. Detention pending trial by court-martial under section 96 is a different matter from remand pending investigation under section 94.

The Court held that the appellant's detention had been made pursuant to section 96(3) of the Act and was therefore not illegal, and that the trial judge had not been plainly wrong to dismiss the claim. It dismissed the appeal with costs. The judgment is a useful illustration of the distinction under the Armed Forces Act 1972 between detention pending court-martial and remand pending investigation, and of the confinement of the delay-report safeguard to the investigation stage, so that a lengthy detention pending court-martial is not rendered unlawful by the absence of a delay report.