Malaysian Bar concerned by trial of Major Zaidi

PETALING JAYA: The Malaysian Bar is concerned with 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.
Its vice-president Steven Thiru said a court martial is an adjudicating body in respect of offences in the Armed Forces Act 1972, which are committed by military personnel and 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," he added.
He said Zaidi 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 Saadon before the court martial decided that the prosecution had proven a prima facie case against Zaidi and ordered him to enter his defence. As such, the alleged comment could be construed as a pre-determination of his case by the Presiding Officer or the court martial," he added.
He said the Bar upon discovering the prejudicial comment, Zaidi 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 Zaidi the right to be heard. The court martial then decided to proceed with the matter, which has been fixed for continued hearing on Dec 15," said Thiru.
He said the 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, he added, 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," he added.
He said the court martial of Zaidi should not proceed in the face of the allegation of bias against its Presiding Officer as this is critical, so as to ensure that its decision is not tainted by bias, and to avoid compromising the integrity of its proceedings.
The Bar has urged that the proceedings be halted until the conclusion of the judicial review in the High Court.