The Malaysian Bar is concerned by the decision of the convening authority of the court martial of Major Zaidi Ahmad to ignore a serious allegation of bias against the court martial’s Presiding Officer, and to proceed with the matter regardless.
A court martial is an adjudicating body in respect of offences in the Armed Forces Act 1972, which are committed by military personnel. It is appointed by a convening authority under section 104 of the Armed Forces Act 1972, and comprises a Presiding Officer and two other officers. A court martial wields powers under Armed Forces Act 1972 that are otherwise possessed by the criminal courts, such as the power to impose custodial sentences. The court martial therefore functions as a court of law in the military justice system established under the Armed Forces Act 1972.
Major Zaidi Ahmad has been charged in a court martial under the Armed Forces Act 1972 in respect of statements he purportedly made regarding the use of indelible ink during the advance voting by the armed forces in the 13th General Elections in 2013. If found guilty, he faces imprisonment of up to two years, or other punishment that could include a dismissal from military service.
The allegation of bias against Colonel Saadon Hasnan, the Presiding Officer of the court martial, arises out of a prejudicial comment he is said to have made in his Facebook account in response to an article in Malaysiakini concerning the proceedings of the court martial. The impugned comment was reportedly posted by Colonel Saadon Hasnan before the court martial decided that the prosecution had proven a prima facie case against Major Zaidi Ahmad and ordered Major Zaidi Ahmad to enter his defence. As such, the alleged comment could be construed as a pre–determination of Major Zaidi Ahmad’s case by the Presiding Officer or the court martial.
The Malaysian Bar notes that, upon discovering the prejudicial comment, Major Zaidi Ahmad applied to dissolve the court martial on account of bias on the part of its Presiding Officer. The court martial referred the application to the convening authority for determination, but the latter dismissed the application without according Major Zaidi Ahmad the right to be heard. The court martial then decided to proceed with the matter, which has been fixed for continued hearing on 15 December 2014.
The Malaysian Bar is of the view that a court martial is obliged to uphold the basic principles of a fair trial, which are applicable to all courts of law. This includes the principle of due process or natural justice in the tribunal’s decision–making process. There should be no prejudgment of the matter, and no preconceived notion of guilt or any adverse decision without first hearing the affected parties. It is critical that the court martial is — and is seen to be — independent, impartial and fair. Bias on the part of the court martial or any of its members, whether real or perceived, violates the rudimentary principles of a fair trial, and would render any decision of the court martial suspect, and unsustainable.
The court martial of Major Zaidi Ahmad should not proceed in the face of the allegation of bias against its Presiding Officer. This is critical, so as to ensure that its decision is not tainted by bias, and to avoid compromising the integrity of its proceedings.
Major Zaidi Ahmad has indicated that he intends to apply to the High Court for judicial review. A judicial review application would enable the High Court to scrutinise the decision–making process of the court martial and decide whether the proceedings have been infected with bias. If the High Court grants judicial review, the court martial must be dissolved.
The Malaysian Bar urges the court martial of Major Zaidi Ahmad to halt its proceedings until the conclusion of the judicial review in the High Court, in light of the gravity of the allegation against the court martial’s Presiding Officer. Anything less would be an injustice to Major Zaidi Ahmad and bring the administration of the military justice system into disrepute.
Steven Thiru
Vice–President
Malaysian Bar
8 December 2014