Sunday, June 16, 2024

New Article: Right to Legal Representation During Summary Proceedings Under the Military Justice System

 


In an article recently published by the IIUM Law Journal on the Malaysian military justice system, three scholars of the Faculty of Law of the Universiti Kebangsaan Malaysia (National University of Malaysia), find that during summary proceedings, commanding officers have quasi-judicial powers over the individuals while those cannot be legally represented as of right.[1] They analyse the situation, in light of the Malaysian Federal Constitution where the right to legal representation and equality are enshrined, as well as through a comparative law approach, looking at other common law jurisdictions (mainly US). They also take into account international sources, such as the 2019 Yale Draft Principles for Military Summary Proceedings. The authors recommend a reform for service members to be able to choose court martial prior summary proceedings or seek appeal after. For the authors, allowing full legal representation at summary proceedings would defy its non-legalistic essence in maintaining discipline.

Here is a summary of authors’ analysis, main arguments, findings, and recommendations.

Introduction and Research Methodology

First, the authors explain their text focuses on the summary proceedings in the Malaysian military justice system, the other prong of that system being the court-martial trials. Mindful that confusion might come from similar expressions having different meaning depending on the jurisdiction, they use “summary proceedings” in the Malaysian context and “summary court-martial” in US jurisdiction. The authors explain the very essence of summary proceedings: a simple procedure to deal promptly with minor offences. Their methodology is doctrinal[2], focusing on analysing Malaysian legislation and case law, using United Stated as the main comparator in the comparative approach.

Military Justice: A Dual Aspect

Based on various sources, including Sun Tzu, the essence and purpose of military justice is reaffirmed: “to maintain discipline, order, and effectiveness within the armed forces by enforcing laws and regulations governing military personnel”. [3] However, a modern military justice system is not only about the maintenance of good order and discipline, the authors add. It is also about the achievement of justice for the troops.

Equally important is the fundamental right for everyone to be legally represented. “It enables individuals to understand and protect their rights and interests within legal proceedings” and to advocate for or defend them accordingly.[4] A right recognized in many nations and internationally,[5] in particular in criminal proceedings where the right has often a constitutional status, like in Malaysia.[6]

Analysis and Discussion

Then, the authors delve into the specific of the Malaysian legislation pertaining to summary proceedings.[7] Being the central person exercising powers in that system, the commanding officer is defined. For the purpose of the text, the notion includes subordinate commanders and superior authorities.[8] An allegation that a service member contravenes the law prompts a series of procedural steps where the commanding officer exercises a key role. If a charge[9] is laid against the person, it is reported to the commanding officer who has authority for the offence to be investigated, including by himself. Procedural rules to be followed and forms to be used are explained in details by the authors.[10]

Once evidence has been gathered and considered, the commanding officer can dispose of the charge, and award punishment, as the case may be. According to the authors, the issue of the moment of legal representation is raised at that point.[11] Should it be during the investigation phase or after, once the investigation is completed? As the investigation phase involves gathering and managing evidence, which raises technicalities, arguably legal representation should be given during that portion of the process.[12]

In addition, in light of a Malaysian decision, the role played by the commanding officer is quasi-judicial, not purely administrative. The authors find that the commanding officers, “has to investigate the offence alleged by fact finding, evaluating the evidence, and making the decision by applying the law.”[13] The high level of discretion given to commanding officers, notably in disposing of the charges or not and in determining the appropriation sanction, if needed, is a discretionary power similar to the one of an Attorney General (AG).

Yet, despite of the interests at stake, no legal representation is allowed at the summary proceedings in Malaysian military justice, contrary to what occur in courts-martial. The authors quote a New Zealand report on the summary trial system[14]:

The summary trial process places greater emphasis on the expeditious resolution of alleged misconduct than on rights and justice for individuals. It focuses on factual rather than legal guilt. It uses inquisitorial rather than adversarial procedures, uses preliminary investigative processes to screen out cases where the accused is clearly not guilty, and places the public interest ahead of individual interests and rights.

The authors note that there is no case law on the validity of that system, although penal, as it has not been challenged before civil courts. For the authors, some might draw parallels with case law in different fields, where it is argued that, even where the proceedings are not criminal strictly speaking, the individual is entitled to be legally represented. They first refer to a case before a disciplinary tribunal. [15] The individual’s counsel argued that there is a common law right of any person to appoint an agent, including a lawyer. That right “could only be limited by explicit words or necessary implications”.[16] The judge decided that the right of legal representation extends to disciplinary tribunal, “especially so when a person’s reputation and livelihood are in jeopardy.”[17] In addition, there was a statutory right of appeal following the hearing. Therefore the judge concluded that the right to legal representation was a requirement “to uphold the principle of equality before the law and to give the aggrieved person the best chance to defend themselves.”[18] That principle was reinforced in a 2003 case where the legislation was silent on the legal representation[19]. Reaffirming that the right to legal representation is a common law right, the court read that right into the statute.[20]

In light of those cases, as the Malaysian legislation applying to commanding officers’ powers during summary proceedings has no provision prohibiting legal representation, the authors argue that the commanding officer has absolute discretionary power to allow it or not. In making their decision, commanding officers have to be fair and consistent and be guided by natural justice and procedural fairness.[21] The authors cite another Malaysian case[22] which refers to an English case where it is decided that in a “domestic tribunal” (i.e. a specialized court) in depends on the rules. If those are silent, a party has no absolute right to a lawyer: it is a matter for the discretion of the tribunal. [23] The authors write:

Under common law, commanding officers have the discretionary power to allow legal representation during summary proceedings, taking into account the principles of military justice in maintaining discipline, good order and ensuring justice. Although summary proceedings differ from court-martial trials or criminal courts, the commanding officer's discretion in determining an accused's right to legal representation should be exercised judiciously and not arbitrarily. The commanding officer should consider relevant factors such as the accused's background, the nature of the case, the technicalities involved, the potential punishment, and any other elements that may best serve the interests of justice.[24]

Of course, such discretionary power must be exercised reasonably and within legal limits[25]. In case pertaining to prison disciplinary law, the right to a lawyer is not automatic.[26] Yet, several factors should be considered to either grant or deny legal representation. For the authors, those factors can guide commanding officers in exercising their discretion, considering the common need for prompt disposition.[27] Another factor is the nature and background of the individual who, may not know his or her rights are at play.[28]

Then, the authors refer to how others military jurisdictions have dealt with the issue of legal representation at summary proceedings level. They state that most of the time, the right to a lawyer is not provided at that stage.[29] As their comparator, the authors review the summary court-martial (or SCM) of the United States military justice system, where legal representation may be allowed “if such appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it.”[30] After the basic sources and concepts of US military justice system are described, the focus is put on the SCM.[31] The authors explain the evolution of the right to counsel at that stage, starting from a US Supreme Court where it was decided that the right “is triggered by the possibility of loss of liberty or confinement”.[32] That case was followed by a Court of Military Appeals decision ruling that unless an individual was represented by a lawyer at SCM, his conviction cannot be considered for sentencing purpose in a following proceedings.[33] US military law then required that a SCM could not sentenced the accused to confinement unless he was legally represented or that he knowingly waived that right to counsel.[34] The authors then summarize the case of Middendorf v. Henry[35], where the US Supreme Court revisit its previous and ultimately decided that, as SCMs are not “criminal prosecutions”, the constitutional right to counsel is not triggered, even though SCMs could impose up to 30 days of confinement.[36] Yet, the Middendorf case raises concerns: SCM proceedings are of an expedited nature, the presiding officer – who has various roles at the same time – is not required to be legally trained. An individual can be found guilty without sufficient evidence. Some US commentators criticized the decision, one saying that “the Court over-estimated the needs of the military and underestimated the needs of the individual”.[37]

For the authors, it’s important to note that both in United States and Malaysia, the accused person can object to summary proceedings and choose to be tried by court-martial. However in Malaysia, if commanding officers stay within certain limit, the accused person may not have that choice.[38] The authors argue that Malaysia could draw lessons from the US experience to improve the fairness and transparency of its summary proceedings.[39]

Findings, Recommendations, and Conclusion

Authors’ find that commanding officers have quasi-judicial powers. They investigate charges and offences, deciding if a case would proceed summarily, to court-martial or be dismissed. They can award punishments. According to common law principles, the right to legal representation is at their discretion, when legislation is silent. Lastly, the authors are of the view that, as commanding officers have analogous power to courts-martial in Malaysian military law, not allowing legal representation, together with limiting the option to choose court-martial in certain circumstances may raise a constitutional issue.

Therefore, the authors recommend that Malaysian military law be reviewed and reformed to ensure that the summary proceedings are fair, in accordance with international human rights law. The authors refer to experts groups who analysed how military justice proceedings comply with the International Covenant on Civil and Political Rights (ICCPR).[40] The authors write that the principle no 15 of the 2006 ‘Decaux Principles’[41] – pertaining on the “Guarantee of the rights of the defence and the right to a just and fair trial - “suggests that summary proceedings should respect the human rights of the accused”.[42] They also refer to principle no 13 of the 2019 ‘Yale Draft Principles’ which states:

To the extent practicable, the accused shall have the right to consult a lawyer in respect of a charge that is to be dealt with summarily, whether or not national law permits legal representation in the hearing. [43]

The authors recommend that Malaysian military law provides for commanding officers to have discretionary power to allow legal representation, as opposed to no option at all in the current system. Allowing legal representation should be considered, in particular "where the accused is a layperson in need of legal assistance”.[44] Accused persons should also be given the right to elect to be tried by court-martial. Lastly, using US and UK experiences, the authors believe that the summary proceedings system includes a formal appeal process, for the sake of transparency and fairness.[45] Quoting our recently late colleague Tshivhase, the authors add:

[D]espite the deficiencies in a summary trial, the right to elect trial by a summary court-martial and availability of an appeal mechanism against the finding and sentence of a summary trial as well as the automatic review is generally seen as a measure which legitimises and justifies the practice of summary trials in their present form.[46]

The authors conclude their text by reaffirming that the exclusion of legal representation from military proceedings may not be constitutionally valid in Malaysia, in light of the right to counsel and equality before the law. Mindful of the fact that military summary proceedings are not designed for legal debates an intrigued as to how Malaysian courts might deal with the issue, they suggest that the system be reformed “to ensure that it is impartial, transparent, and effective in fulfilling its role and obligations.”[47]

Comment

In recommending that commanding officers be given discretionary powers to allow the accused person to be represented by a lawyer, the text is particularly on point in recommending that such power be circumscribed by relevant factors, “such as the accused's background, the nature of the case, the technicalities involved, [and] the potential punishment.”[48] There are indeed differences between situations. In a factually straightforward case where a seasoned service member faces a charge of absence without leave (AWOL), being likely exposed to few days of pay suspension as punishment, and nothing more administratively speaking, the need to be legally represented might be low. But when a non-experienced service member, having communication difficulties is charged with sexual misconduct, in a case involving many witnesses, exposing the accused person, beyond the maximum punishment the summary proceedings can legally impose, to a more and lasting negative impact on his or her “reputation and livelihood”, such as release from the service as an ‘administrative consequence’ from the summary proceedings, the need to be legally represented or, at least, assisted during hearing is high.

The text focus its comparative approach using essentially one comparator: the US system of SCMs. Undoubtedly, the context and evolution surrounding the Middendorf case is essential to understand the key issues as it pertains to military summary proceedings in any common law jurisdiction: how to dealt promptly and fairly with minor offences without jeopardizing, at the same time, individuals rights and efficiency in restoring discipline. However, statistics suggest that the number of SCMs have dropped over the last 40 years, from 7 SCMs per 1000 service members in 1981 to less than 1 in 2022.[49] Although that trend touches other US military justice proceedings, including courts-martial, the data are such for SCMs that an author writes that during the period “summary courts-martial declined to endangered species levels.”[50]

The comparative approach could be expanded to further augment its persuasive force. Other military justice systems of Commonwealth countries – which Malaysian military law share historically a common origin with – have also gone through reforms of their military summary proceedings over the last two decades. Recently, a group of military law experts of the Commonwealth gathered in Stellenbosch, RSA and came up with 10 military justice principles. The Principle no 10 reads as follows:

10. Summary Proceedings

a. Where summary proceedings are initiated by commanders against military personnel, ensure that sufficient protections exist, including the right to elect trial in a military court which provides access to the internationally recognised rights set out in Principle 7 [Rights of Accused] above, or an unfettered appellate procedure to such a court.

b. Ensure that summary proceedings are only used to adjudicate minor offences and to impose minor sanctions which are proportionate to the gravity of the offence and the degree of responsibility of the offender, and which do not involve sentences of imprisonment or any other significant deprivation of liberty, violation of human rights, or dismissal from service.[51]

Some jurisdictions have gone through the path of a more formal appeal process, such as United Kingdom with the Summary Appeal Court (SAC) in 2000. A quote in the UK governmental documentation summarizes the essence of the model contemplated by the authors:

The SAC was established under provisions of the Armed Forces Discipline Act 2000 and is now constituted under the Armed Forces Act 2006 s 140 et seq. Summary hearings by Commanding Officers are not of themselves compliant with the European Convention of Human Rights (ECHR). It is the opportunity to appeal to the SAC together with the unfettered right to elect trial in the Court Martial, both of which are ECHR compliant courts, which makes the summary hearing process compliant. Everyone who is dealt with summarily has an automatic right to appeal to the SAC. A person may appeal against both finding and punishment, or against the punishment only.[52]

That approach also inspired New Zealand in 2009.[53] Canada took a different route in 2019 by removing some of the penal features of the system, changing its name from “summary trial” to “summary hearing”, accused service members facing now “service infraction charge” instead of “service offence charge”, arguably making it less penal and more disciplinary.[54] The validity of the new system might be tested during a judicial review currently before the Federal Court.[55] As former Justice Fish writes in the Third external review of the Canadian military justice system:

Independence, impartiality, due process and consistency of sentencing are not important only in the context of criminal law: they are important in any disciplinary context. The outcomes of both courts martial and summary hearings must be proportionate to the objectives of both systems. This is particularly true given that it will be possible for the same facts to result in both service infractions and service offences, with several punishments being available both at courts martial and at summary hearings.[56]

Besides, it is particularly refreshing in the text to see, aside with an argument seeking compliance with the international human rights instruments, a reliance on the good old common law rights. As common legal wisdom used to say: “Enshrining rights in charters and statutes does not flush away 800 years of legal history”. It’s still there and could validly be argued as a fallback position, should the mechanisms of the human rights legislation are not applicable.

Finally, this text reminds us that, beyond the strict legality and the constitutional validity, we have a moral collective responsibility, as government, private sector, military, and non-military jurists, as well as judges, and scholars: to strive for the best system of justice for those persons who are exposed to the ultimate sacrifice in defending our respective nations.[57]



[1] Haslida Isamail, Mohamad Rizal bin Abd Rahman, & Muhamad Sayuti Hassan, « Right to Legal Representation During Summary Proceedings Under the Military Justice System », (2024) 32 : 1 IIUMLJ 365-396, <https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/919> (accessed June 8, 2024).

[2] In law, a doctrinal research is based on legislation and case law analysis, through logical reasoning. A non-doctrinal research also “known as social-legal research, is research that employs methods taken from other disciplines [than law] to generate empirical data that answers research questions”. See generally, Neha Dahiya, “All about doctrinal and non-doctrinal research”, (2025), on iPleaders.in powered by LawSikho, <https://blog.ipleaders.in/all-about-doctrinal-and-non-doctrinal-research/> (accessed June 8, 2024).

[3] Isamail, Rizal Rahman & Hassan, supra, note 1, p. 370.

[4] Id.

[5] United Nations, Universal Declaration of Human Rights (1948), art. 11(1), where the expression « all the guarantees necessary for his defence » includes the right to a lawyer; International Covenant on Civil and Political Rights (1966), art. 14(1) where the expressions “all persons shall be equal before the courts and tribunals” and “everyone shall be entitled to a fair public hearing” entails the right to be legally represented. See Meredith Elliott Hollman, “Fundamental Fairness: Finding a Civil Right to Counsel in International Human Rights Law”, (2023) 57 U Rich L Rev 685, 698.

[6] Malaysian Federal Constitution, art 5(3) (Liberty of the person) and 8 (Equality), <https://www.jac.gov.my/spk/images/stories/10_akta/perlembagaan_persekutuan/federal_constitution.pdf> (accessed June 8, 2024).

[7] Armed Forces Act 1972, Laws of Malaysia, Act 77 (CommonLII), <https://www.commonlii.org/my/legis/consol_act/afa1972117/> (accessed June 8, 2024) [AFA 72]; Armed Forces (Summary Jurisdiction) Regulation 1976 [SJR 76].

[8] Isamail, Rizal Rahman & Hassan, supra, note 1, p. 371-372.

[9] The word « charge » has here more the meaning of a complaint or information which would be then investigated. It does not mean a formal accusation following the investigation.

[10] Isamail, Rizal Rahman & Hassan, supra, note 1, p.372-373.

[11] Id., p. 374.

[12] Id.

[13] Id., p. 375.

[14] New Zealand, Ministry of Defence (Manatü Kaupapa Waonga), Summary Report on Military Justice Review of the summary trial system, June 2019, p. 26, para. 114, <https://www.defence.govt.nz/assets/publication/file/c17cd46f5c/Summary-Report-on-Military-Justice.pdf>, accessed on June 9, 2024.

[15] Doresamy v Public Services Commission, (1971) 2 MLJ 127.

[16] Isamail, Rizal Rahman & Hassan, supra, note 1, p.377.

[17] Id., p. 378.

[18] Id.

[19] Marathaei d/o Sangulullai (suing on behalf of the estate of Thangayah Aupulley) & Anor v. Syarikat JG Containers (M) Sdn Bhd& Anor, [2003] 2 MLJ 337.

[20] Isamail, Rizal Rahman & Hassan, supra, note 1, p.379.

[21] Id., p. 379-380.

[22] Sithambaran v Attorney-General, [1972] 2 MLJ 175.

[23] Enderby Town Football Club Ltd v The Football Association Ltd, [1971] 1 ALL ER 215.

[24] Isamail, Rizal Rahman & Hassan, supra, note 1, p.380-381.

[25] Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lembah Enterprise Sdn Bhd, [1979] 1 MLJ 135.

[26] R v Secretary of State for the Home Department, ex parte Tarrant, [1985] QB 251.

[27] Isamail, Rizal Rahman & Hassan, supra, note 1, p.381-382.

[28] Pett v Greyhound Racing Association Ltd, [1968] 2 WLR 1471; Goh Chang Hon v PP, [2022] 1 LNS 147. 

[29] Isamail, Rizal Rahman & Hassan, supra, note 1, p.383.

[30] United States, Manual for Courts-Martial (ed. 2024), part. II, Rules for Courts-Martial (or RCM) 1301 (e).

[31] Id., RCM 1301(a).

[32] Argersinger v Hamlin, 407 US 25 (1972).

[33] United States v Alderman, CMA 298, 46 CMR 298 (1973).

[34] Isamail, Rizal Rahman & Hassan, supra, note 1, p.385.

[35] Middendorf v. Henry, 425 US 25 (1976), <https://supreme.justia.com/cases/federal/us/425/25/>.

[36] Isamail, Rizal Rahman & Hassan, supra, note 1, p.386-387.

[37] Mark A. Sternlicht, “Military Law Right to Counsel,” (1976) 55 NCL Rev 300, 310, <https://scholarship.law.unc.edu/nclr/vol55/iss1/19/>.

[38] AFA 72, supra, note 7, ss 97 (3), (4) and (9).

[39] Isamail, Rizal Rahman & Hassan, supra, note 1, p.389.

[40] 19 December 1966, 999 UNTS 171 [ICCPR].

[41] United Nations, Sub-Commission on the Promotion and Protection of Human Rights, Draft Principles Governing the Administration of Justice through Military Tribunals (E/CN.4/2006/58), <https://undocs.org/E/CN.4/2006/58>.

[42] Isamail, Rizal Rahman & Hassan, supra, note 1, p.391.

[43] Yale Draft Principles for Military Summary Proceedings, Yale Law School, 2019, <https://drive.google.com/file/d/16T2kbTDGdVKXCjkrazns-aOLjdHoYex4/view?usp=sharing>.

[44] Isamail, Rizal Rahman & Hassan, supra, note 1, p.391.

[45] Id., p.391-92.

[46] Aifheli Enos Tshivhase, “The future of military summary trials in the modern age” in Alison Duxbury & Matthew Groves, eds, Military Justice in The Modern Age, (Cambridge: Cambridge University Press, 2016), 347 at 356.

[47] Isamail, Rizal Rahman & Hassan, supra, note 1, p.392.

[48] See also Canada, National Defence, Military Justice at the Unit Level Policy 2.0, (Ottawa: Office of the JAG, 2024), chap. 2 Pre-hearing, 2.3 Legal counsel, par. 2.3.1. Service infraction charge, <https://www.canada.ca/en/department-national-defence/services/benefits-military/legal-services/military-justice-unit-level/ch2-pre-hearing.html#2.3>:

[…] The officer conducting a summary hearing (OCSH) has the discretion to permit a person charged with having committed a service infraction, upon request, to be represented by civilian legal counsel at their own expense. The OCSH, when addressing such a request, should consider at least the following:  

a.        the nature of the infraction;

b.       the interests of the person charged with having committed a service infraction; and

c.        the exigencies of the service.

If the OCSH is of the opinion the person charged with having committed a service infraction should be granted permission to be represented by legal counsel, the OCSH should further consider whether the matter may more appropriately be treated as a service offence allegation [i.e. sending the matter to be tried by a court martial].

[49] Dwight H. Sullivan, “The Military Justice Decrescendo”, (2024) 68 Villanova Law Review 849, at 360.

[50] Id., at 856-857.

[51] The Commonwealth, Commonwealth Military Justice Principles – The Stellenbosch Draft, University of Stellenbosch, South Africa, 2023, <https://production-new-commonwealth-files.s3.eu-west-2.amazonaws.com/s3fs-public/2023-12/Commonwealth%20Military%20Justice%20Principes%20-%20Stellenbosch%20Draft.pdf>

[52] United Kingdom, Military Court Service, The Court Martial and The Summary Appeal Court Guide, vol. 1 “Guide to Procedure, v 9, (2023), <https://www.judiciary.uk/wp-content/uploads/2023/02/The-Court-Martial-and-Summary-Appeal-Court-Guidance--Volume-1--Guide-to-Procedure.pdf>, p. 9, par. 7.1.

[53] New Zealand, Defence Forces (Te Ope Katua O Aotearoa), Annual Report on the Military Justice System 2021-2022, Defence Legal Services, 2022, p. 5, <https://www.nzdf.mil.nz/assets/Uploads/DocumentLibrary/Discipline-Report_2021-2022.pdf>.

[54] Lyne Casavant, Julia Nicol & Stéphanie Le Saux-Farmer, Legislative Summary of Bill C-77: An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, Publication No 42-1-C77‑E, (Ottawa: Library of Parliament, 2018 rev 2020), sections 2.10 to 2.12, <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C77E>.

[55] Wiome v Canada (AG), Federal Court, T-662-24.

[56] The Honourable Morris J. Fish, C.C., Q.C., Report of the Third Independent Review Authority to the Minister of National Defence, Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, 30 April 2021, at <https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf>.

[57] Id., p. iii.