What Is The Meaning Of "Desertion" Under Section 54(1)(a) Of The Armed Forces Act 1972?

• Published date: 30 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Divorce
• Law Firm: Cecil Abraham & Partners
• Author: Mr Tan Sri Dato' Cecil W. M. Abraham, Rishwant Singh and Jules Kor Weizhen

INTRODUCTION

In this article we discuss a novel issue in respect of the interpretation and meaning to be given to the term "desertion" under Section 54(1)(a) of the Armed Forces Act 1972.

We make disclosure that Tan Sri Dato' Cecil Abraham, Rishwant Singh and Jules Khor Weizhen of Messrs Cecil Abraham & Partners appeared as counsel for Colonel Dr Faiz Bin Abdul Aziz¹ before the Federal Court of Malaysia ("Federal Court") in successfully appealing against the decision handed by way of a court martial convened by the Malaysian Armed Forces in convicting him of desertion and dishonourably discharging him².

THE BACKGROUND

Colonel Dr Faiz Azraai bin Abdul Aziz ("Colonel Dr Faiz") was an anaesthetist serving in the Malaysian Armed Forces since 2002. In 2010, he was certified as an expert and was listed in the National Specialist Registry. He was appointed as an expert anaesthetist. He carried out his duties as an expert, a doctor, and an anaesthetist under the command of his Commanding Officer who was the Head of Department.

Between 19th October 2016 to 4th May 2017, Colonel Dr Faiz left camp without permission of his Head of Department. His reasons for his absence were that (i) for a period of five (5) years he was tormented by his superior whilst he was in service, (ii) he was not permitted to take leave, (iii) he was on continuous call, (iv) he had domestic issues that led to a divorce given irreconcilable differences with his wife, following the birth of their child, who suffered from autism, and (v) arising from the above, he suffered from depression. The reasons advanced by Colonel Dr Faiz were not contradicted by his Commanding Officer and Head of Department in the proceedings before the Military Court.

It is to be noted that Colonel Dr Faiz had also applied for early retirement. This was refused. He tried to seek non-paid leave. This was also refused. As a result, the appellant ultimately decided to take non-sanctioned leave of absence from work. During this period of over six (6) months, he resided at the same address, and he continued with his locum work to supplement his income. He had not gone into hiding nor had he attempted to leave the country.

The specific charge of desertion was made out for a period from 19th October 2016 to 4th May 2017, when Colonel Dr Faiz returned to camp. It is pertinent to note that on his return to camp, Colonel Dr Faiz was arrested by the military police and held in detention for four (4) days before being released by the Magistrates Court³. On his release, on 8th May 2017, he reported back to duty and was placed in the general pool.

Colonel Dr Faiz was subjected to court martial proceedings before a Military Court. Colonel Dr Faiz was charged with desertion pursuant to Section 54(1)(a) of the Armed Forces Act 1972, which provides as follows:

"Desertion

54. (1) Every person subject to service law under this Act who -

1. deserts; or
2. ...

shall, on conviction by court-martial, be liable to imprisonment...

(2) For the purposes of this Act, a person deserts who -

1. leaves His Majesty's service, ... with (in either case) the intention, either subsisting at the time of the leaving or failure or formed thereafter, of remaining permanently absent from his duty;

...

..."

The principal argument raised by Colonel Dr Faiz before the Military Court was that he had not deserted and that the proper charge ought to have been framed as being absent without leave. His defence was at no time did he intend to "permanently" absent himself from duty and that this absence was temporary⁴ as evidenced by the...