KUALA LUMPUR: Soldiers awaiting trial in a military court can be detained for more than 72 days without a separate remand order, provided investigations have been completed, the Kota Baru High Court has ruled.
Judicial commissioner Shamsul Bahrin Abdul Manaf ruled that Section 96(3) of the Armed Forces Act 1972 allowed military authorities to detain soldiers even before their court-martial proceedings begin.
He said the provision did not require a separate remand order for such detention.
"Section 96(3) does not spring into life only after the court-martial has been assembled.
"It authorises remand for trial, and that necessarily includes the period after the investigation has been completed but before the court-martial actually sits," he said in his grounds of judgment dated Sept 21.
The ruling was made in dismissing a lawsuit filed by former army corporal Mohd Marzuki Mat Jusoh against the government and three senior military officers over his alleged unlawful detention in connection with a drug-related offence.
The court also ordered Marzuki to pay RM40,000 in costs.
Marzuki challenged his close arrest from May 6 to June 26, 2020, arguing that it exceeded the 72-day limit under Rule 15(3) of the Armed Forces (Court-Martial) Rules of Procedure 1976.
The rule prohibits detention beyond 72 days without trial unless the relevant authorities approve continued detention and issue a written direction.
He also argued that military authorities had failed to prepare reports every eight days explaining the delay, as required under Section 94(2) of the Act.
However, Shamsul Bahrin rejected his arguments, ruling that the detention was lawful under Section 96(3) after investigations were completed on March 6, 2020, when Marzuki was formally charged and elected to be tried by court-martial.
The court-martial assembled on June 26, 2020, when Marzuki pleaded not guilty.
"In these circumstances, I do not accept that the absence of the delay report or the expiry of 72 days rendered the close arrest from May 6 to June 26 unlawful.
"The statutory authority for that detention was Section 96(3), and the Federal Court has held that the provision authorises detention before the commencement of the court-martial itself," he said.
Marzuki was arrested following a urine screening test in November 2019, which eventually confirmed the presence of MDMA.
He was placed under close arrest on Feb 24, 2020.
On March 31, 2021, the court-martial convicted him and sentenced him to four months' imprisonment and dismissal from military service.
The court also rejected his claim that he remained under open arrest until March 31, 2021.
Although his military service record indicated 267 days of open arrest, the court accepted evidence from military officers that he had been released from arrest on July 28, 2020.
The court said that even if Marzuki had remained under open arrest, the detention would still have been lawful under Section 96(3).
The court further ruled that his detention in a military guard room from March 31 to May 4, 2021, following his conviction was lawful under military regulations.
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