NORISAM BIN ABDULLAH v 1. ) LEFTENAN KOLONEL MOHD FAEZAL BIN MAHAMAD TUDM, YANG DIPERTUA MAHKAMAH TENTERA 2. ) BRIGEDIER JENERAL DR. NORAZRIN BIN SHAMSUDIN TUDM, PEGAWAI SIDANG MAHKAMAH TENTERA/PEGAWAI PENGESAH 3. ) TIMBALAN PANGLIMA TENTERA UDARA LEFTENAN JENERAL DATO’ HAJI MUHAMAD NORAZLAN BIN ARIS 4. ) MAJLIS ANGKATAN TENTERA 5. ) Kerajaan Malaysia

ta-25-4-12-2024 High Court (Mahkamah Tinggi) 25 November 2025 • TA-25-4-12/2024 • 5 min read

Catchwords

Judicial Review – Military law – Court-martial – Convening authority – Whether convening officer possessed requisite command power – Temporary attachment of accused to Legal Branch – Whether accused was “under command” within meaning of s 104(4) Armed Forces Act 1972 – Delegation of power – Whether lack of command renders proceedings void ab initio – Effect of jurisdictional defect – Armed Forces Act 1972, s 104 – Federal Constitution, arts 5(1), 8(1), 137(1). Military law – Court-martial – Drug offence – Positive urine test – Alleged non-compliance with PMAT 4/2009 – Use of non-prescribed forms – Absence of Donor’s Declaration – Whether procedural irregularities vitiate proceedings – Chain of custody – Role of chemist – Whether failure to produce calibration certificate fatal – Armed Forces Act 1972, ss 51, 87 – Evidence Act 1950, s 90A. Military law – Standing orders – Proof of existence and validity – Whether standing order duly made and published under s 51(3) Armed Forces Act 1972 – Whether accused knew or ought to have known of prohibition – Presumption of knowledge – Ignorance of standing orders – Whether Division One Order relevant to proof of knowledge. Military law – Court-martial procedure – Recording of finding – Whether announcement of “guilty” sufficient compliance with r 82 and Seventh Schedule Armed Forces (Court-Martial) Rules of Procedure 1976 – Whether omission to use word “conviction” fatal. Military law – Confirmation proceedings – Duty of confirming officer – Whether confirming officer obliged to review full trial record – Failure to file petition against finding – Scope of powers under ss 122, 123, 125 Armed Forces Act 1972 – Whether confirmation invalid. Judicial Review – Scope – Military tribunals – Distinction between appeal and review – Whether High Court may re-evaluate evidence – Exceptional circumstances – Jurisdictional error and breach of natural justice – Discretionary relief.

Practice Areas

Administrative Law Constitutional Law Evidence Criminal Procedure

Judges (1)

Yusrin Faidz bin Yusoff Delivered

Parties (6)

BRIGEDIER JENERAL DR. NORAZRIN BIN SHAMSUDIN TUDM, PEGAWAI SIDANG MAHKAMAH TENTERA/PEGAWAI PENGESAH Respondent Kerajaan Malaysia Respondent LEFTENAN KOLONEL MOHD FAEZAL BIN MAHAMAD TUDM, YANG DIPERTUA MAHKAMAH TENTERA Respondent Majlis Angkatan Tentera Respondent TIMBALAN PANGLIMA TENTERA UDARA LEFTENAN JENERAL DATO’ HAJI MUHAMAD NORAZLAN BIN ARIS Respondent Norisam bin Abdullah Applicant

Case Significance

A companion court-martial judicial review emphasising that a convening officer's lack of command power under section 104(4) of the Armed Forces Act 1972 renders the proceedings void ab initio.

This High Court decision is a companion judicial review, brought by a second serviceman, challenging the validity of the same court-martial process convened under the Armed Forces Act 1972 following a drug offence detected by a positive urine test. While it shares the legal framework of the related application, the focus here rests on the consequences that flow from a defect in the convening authority and on the constitutional setting of military justice.

The applicant's case was that the convening officer did not hold the command power required to convene a court-martial over him, because his temporary attachment to the Legal Branch meant he may not have been a person "under command" within section 104(4) of the Armed Forces Act 1972, and that the power to convene had not been validly delegated. The significance of that contention lies in its effect. Command is the jurisdictional foundation of a court-martial: if the convening officer lacked it, the tribunal was never lawfully seised of the matter, and the proceedings — and any conviction and punishment that followed — are void ab initio. A jurisdictional defect of that kind is not a mere irregularity capable of being waived or cured by later steps; it strikes at the competence of the tribunal and renders everything done under it a nullity.

That consequence was framed against the constitutional guarantees that protect a serviceman facing military trial: the right to life and personal liberty under Article 5(1), equality before the law and equal protection under Article 8(1), and Article 137(1) concerning the Armed Forces Council. The judgment is a useful illustration of the principle that a court-martial convened without the requisite command power is void from the outset, and of how the effect of such a jurisdictional defect is analysed within the constitutional framework governing the discipline of the armed forces.

What defect did the applicant rely on?

The applicant argued that the officer who convened the court-martial lacked command power over him — because his temporary attachment to the Legal Branch meant he may not have been 'under command' under section 104(4) of the Armed Forces Act 1972 — and that the convening power had not been validly delegated.

Why did that alleged defect matter?

Command is the jurisdictional foundation of a court-martial; if it was absent, the tribunal was never lawfully seised and the proceedings and any resulting conviction are void ab initio — a nullity that cannot be cured — a consequence framed against the guarantees in Articles 5(1), 8(1) and 137(1).

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (ta-25-4-12-2024)