MMAH v LA SAA (Pegawai memerintah Batalion ke-5 Rejimen Renjer Diraja) & Ors and another appeal [2025] MLJU 3801

Federal Court (Putrajaya)

Military law — Armed Forces Act 1972 — Detention pending court-martial — Section 96(3) Armed Forces Act 1972

1. The Appellant was a soldier attached to the 5th Battalion of the Royal Ranger Regiment stationed at Desa Pahlawan Army Camp, Kota Bharu, Kelantan. The 1st Respondent was his commanding officer.
2. On 29 March 2014, a drug prevention operation was conducted at the Army Camp, during which urine samples were taken from 26 soldiers, including the Appellant. Laboratory analysis revealed that nine samples, including the Appellant’s, contained methamphetamine, a substance prohibited under a standing order made pursuant to section 51 of the Armed Forces Act 1972 (“AFA”).
3. On 7 August 2014, the Appellant was brought before the 1st Respondent under s 95 AFA for investigation of the alleged offence and was placed under close arrest pending investigation pursuant to the Armed Forces (Court-Martial) Rules of Procedure 1976 (“AFRP”).
4. Upon completion of the investigation on 26 August 2014, the 1st Respondent informed the Appellant that he was found guilty of the charge and informed him of his right under section 97(9) AFA to elect trial by court-martial. The Appellant elected to be tried by court-martial and was thereafter placed under close arrest pending trial.
5. The court-martial proceedings were adjourned on several occasions. On 3 July 2015, before the commencement of the trial, the Appellant was released from close arrest and placed under open arrest. The trial before the court-martial eventually commenced on 15 October 2015.
6. The Appellant filed a civil action in the High Court alleging unlawful detention in respect of his close arrest from 7 August 2014 until 3 July 2015 and sought declaratory relief and damages.
7. The High Court held that the detention pending investigation was lawful but that the detention pending trial before the court-martial was unlawful and awarded damages. The Court of Appeal reversed that finding and held that the entire detention was lawful. The Appellant appealed to the Federal Court.

1. Whether the Appellant’s detention from 26 August 2014 until 3 July 2015, pending trial before a court-martial, was lawful under the Armed Forces Act 1972 and the Armed Forces (Court-Martial) Rules of Procedure 1976, and consequently whether Article 5(1) of the Federal Constitution was breached?

(1)  Whether the Appellant’s detention from 26 August 2014 until 3 July 2015, pending trial before a court-martial, was lawful under the Armed Forces Act 1972 and the Armed Forces (Court-Martial) Rules of Procedure 1976?

(a) The Federal Court answered this issue in the affirmative and held that the appellant’s detention was lawful.

(b) The Federal Court restated the settled principle that where unlawful detention is alleged, the burden lies on the detaining authority to justify that the detention was effected pursuant to valid legal powers. Article 5(1) of the Federal Constitution permits deprivation of personal liberty provided it is “in accordance with law” (paras [22]–[25]).

(c)  Accordingly, the inquiry was whether the Appellant’s detention was authorised by the relevant provisions of the Armed Forces Act 1972 (“AFA”) and the Armed Forces (Court-Martial) Rules of Procedure 1976 (“AFRP”).

(d) The Court examined the statutory basis for the Appellant’s arrest and detention pending investigation. It held that the Appellant’s arrest for a drug-related offence infringing a standing order made under section 51 AFA was lawfully effected under subsection 93(1) and 93(3) AFA. The detention pending investigation was likewise lawful, as the commanding officer had complied with the mandatory investigative and reporting requirements under section 94 and 95 AFA and rule 14 AFRP. The Court rejected the contention that rule 13 and 14 AFRP restricted the power of arrest in the present case, noting that the offence was serious in nature and directly undermined military discipline (paras [26]–[29], [49]–[52]).

(e)  The Federal Court considered the legality of the Appellant’s detention after the completion of the investigation, following his election to be tried by court-martial. The Court held that subsection 96(3) AFA imposes a mandatory obligation that where a charge is not dealt with summarily, the accused shall be remanded for trial by court-martial. In the context of military law, the use of the word “shall” denotes a mandatory requirement, reflecting the disciplinary framework governing members of the armed forces and the special nature of the AFA as legislation voluntarily accepted by servicemen (paras [34]–[36]).

(f)   The Court clarified the scope of detention authorised before and during the court-martial proceedings. It held that subsection 96(3) AFA authorises the remand of an accused pending trial, while subrule 16(1) AFRP governs the form of arrest during the trial itself. These provisions operate cumulatively to empower detention both before and during the court-martial, and the legality of the detention is not dependent on when the trial is said to commence or when the prosecution calls its first witness (paras [37]–[38], [42]).

(g) The Federal Court rejected the reliance placed by the High Court on Savrimuthu v PP [1987] 2 MLJ 173 and Baharuddin bin Kamsin v Pihak Berkuasa Sidang Panglima Armada Pengkalan TLDM [1996] 4 MLJ 184. It held that Savrimuthu, which concerned the commencement of trial in civilian criminal proceedings, was irrelevant to detention under the AFA. The Court further held that the case of Baharuddin had misconstrued the relationship between subsection 96(3) AFA and subrule 16(1) AFRP and was wrongly decided in so far as it limited the power of detention to the commencement of trial (paras [39]–[43]).

(h)  The Court addressed the argument that an express remand order was required to validate the appellant’s detention. It held that subsection 96(3) AFA does not require the issuance of an express remand order, as the statutory mandate itself authorises remand once the charge is to be tried by court-martial. The Court distinguished this regime from remand under section 117 of the Criminal Procedure Code, which involves judicial discretion and an express order, and held that the two regimes are not comparable (paras [58]–[59], [64]).

(i)    The Federal Court held that the Appellant’s detention from 26 August 2014 until 3 July 2015 was authorised by valid law enacted by Parliament, namely subsection 96(3) AFA and subrule 16(1) AFRP. Accordingly, the detention was “in accordance with law” and did not infringe Article 5(1) of the Federal Constitution (paras [65]–[68]).

1. The Federal Court dismissed the appeal and affirmed the decision of the Court of Appeal. The Appellant’s detention from 26 August 2014 until 3 July 2015 was lawful.

1. Subsection 96(3) AFA imposes a mandatory obligation to remand an accused for court-martial where the charge is not dealt with summarily.
2. No express remand order is required under subsection 96(3) AFA.
3. Detention of military personnel is governed by a distinct statutory regime that cannot be equated with civilian criminal procedure.