Kamarul Azman bin Jamaluddin v Wan Abdul Majid bin Abdullah
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1983 |
| Date | 1983 |
| Year | 1983 |
| Court | Privy Council |
Military Law - Court-martial - Oath, administration of - Constitution of court - Oath administered to members of court by Islamic religious teacher - Whether court competent - Whether accused suffering injustice -
The English Rules of Procedure (Army) 1956 governing procedure at courts-martial applied in Malaysia as did section 93 (1) of the Army Act 1955F1 providing for an oath to be administered to every member of the court-martial. Rule 28 (2) of the Rule provided that “if there is a judge advocate, the oath shall be administered by him …” At a general court-martial assembled in Malaysia to try the applicant, an officer serving in the Malaysian army who was charged with offences of dishonesty, the oath was administered by the Tuan Guru, an Islamic religious teacher employed by the army, instead of by the judge advocate who was present. Initially no objection was taken but after a change of counsel, new counsel representing the applicant objected to the jurisdiction of the court on the ground that it had not been properly constituted because the members had not been properly sworn. The court overruled the objection. The applicant applied to the High Court for an order of prohibition preventing the court-martial from continuing with the hearing. The High Court granted the order. On appeal by the President and members of the court-martial the Federal Court allowed the appeal.
On the applicant's appeal to the Judicial Committee:—
Held, dismissing the appeal, that notwithstanding that rule 28 (2) of the Rules of Procedure reinforced by section 93 of the Army Act imposed a mandatory requirement that the oath should be administered by the judge advocate if present, since the President and members of the court-martial had properly constituted themselves a court in accordance with the rules, before the Tuan Guru had administered the oath, the failure to comply with rule 28 (2) did not affect the court's constitution and its competence to try the applicant and since on the facts the error in procedure had not resulted in any grave injustice to the applicant sufficient to justify interference by an appellate court, he was not entitled to an order of prohibition (post, pp. 582B–C, 583A–B, 584A–B).
Per curiam. If any practice has developed whereby the oath is administered, either to members of courts-martial or to witnesses appearing before courts-martial, by persons other than the prescribed person, the practice should either be regularised by amending the Rules of Procedure or should be discontinued at once (post, p. 584G–H).
The following cases are referred to in the judgment:
Dillet, In re (
Muhammad Nawaz v. The King-Emperor (
Reg. v. Warn [
The following additional cases were cited in argument:
Chong Ngen Onn (Peter) v. Colonel Adam bin Abubakar [
Rex v. Army Council, Ex parte Ravenscroft [
Rex v. Secretary of State for War, Ex parte Martyn [
APPEAL (No. 21 of 1981) by Captain Kamarul Azman bin Jamaluddin, the applicant, from a judgment (August 5, 1977) of the Federal Court of Malaysia (Suffian L.-P., Gill C.J., Malaya and Raja Azlan Shah F.J.) by which that court allowed an appeal by the respondents Lieutenant-Colonel Wan Abdul Majid bin Abdullah (president, general court-martial), Major Raja Mohar bin Raja Sulaiman, Major Goh Seng Toh, Captain Francis Hilary Dias and Captain Sim Kian Ping (members, general court-martial) from an order (May 11, 1976) of Harun J. in the High Court of Malaya granting the applicant's application by way of originating summons for an order of prohibition directed to the president and members of the court-martial preventing them from proceeding with the trial of the applicant on charges under section 38 of the Malay Regiment Enactment (Laws of the Federated Malay States, 1935 rev., c. 42) as amended.
The facts are stated in the judgment of their Lordships.
D. P. Vijandran (of the Bar of Malaysia) for the applicant.
Nicholas Lyell Q.C. for the president and members of the general court-martial.
March 21. The judgment of their Lordships was delivered by LORD FRASER OF TULLYBELTON.
The facts in this case are not in dispute. The applicant is an officer serving in the Malaysian army. The...
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So Yiu Fung v Hksar
...Privy Council in the relatively recent court-martial case from Malaysia of Kamarul Azman bin Jamaluddin v. Wan Abdul Majid bin Abdullah [1983] 1 WLR 579 at pp 10. Mr Plowman seeks to rely on three decisions in which final appellate courts have considered whether convictions were unsafe or u......
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Judicial Committee of the Privy Council
...theoathshall be administered by him to thepresident first and afterwards to each member of the court". InKaramulAzmanv. WanAbdulMajid [1983] 1W.L.R. 579, theapplicant for leave to appeal was an army officer who was chargedbefore acourt-martial with forgery andotherforms of dishonesty.On the......