Amirul Syahmi Bin Roslee v Leftenan Kolonel Muhammad Bashiruddin Bin Jamaludin, Pegawai Memerintah, Batalion Keenam Rejimen Askar Diraja (KA-25-14-10/2024)

LIEUTENANT COLONEL MUHAMMAD BASHIRUDDIN BIN JAMALUDIN Commanding Officer 6th Battalion, Royal Malay Regiment

BRIGADIER GENERAL SAIFUL BAHARI BIN ZAINOL Director of Infantry, Army Headquarters

MALAYSIAN ARMED FORCES --- RESPONDENTS GROUNDS OF JUDGMENT Introduction 1. This application for judicial review, filed by the Applicant pursuant to Order 53 of the Rules of Court 2012 (“the Judicial Review”), seeks certiorari and declaratory orders to quash the Respondents' decision transferring him to the 5th Brigade Headquarters in Sabah and to invalidate the disciplinary actions involving his “Loose Arrest” and the charge of Absence Without Leave (“AWOL Charge”). Brief Facts of the Case 2. The Applicant is a Commissioned Officer in the Malaysian Army with the rank of Captain. At all material times before the dispute, he was serving with the 6th Battalion of the Royal Malay Regiment (6 RAMD) at Sultan Abdul Hamid Mu’adzam Shah Camp, Jitra, Kedah (Region 1).

On 10.07.2024, the Department of Infantry Direction issued a transfer order directing the Applicant to be transferred from his current unit in Kedah to the Headquarters of the 5th Brigade (Markas 5 Briged), Kota Belud, Sabah (Region 2), with an effective date of 05.08.2024 (“the Transfer Order”).

On 29.07.2024, the Applicant submitted a written appeal to the Respondents requesting to cancel the transfer to Sabah and to remain in Region 1 (Peninsular Malaysia). The Applicant cited familial compassionate grounds, notably his father's treatment for blood cancer.

On 15.08.2024, an interview session was held between the Applicant and the Director of Infantry (Second Respondent). Following this interview, the transfer instruction to Sabah was maintained, though the reporting date was adjusted.

On 20.08.2024, the Applicant, through his solicitors, submitted a letter applying for unpaid leave (“the Unpaid Leave”) or to remain at 6 RAMD.

On 26.08.2024, the Commanding Officer of 6 RAMD (First Respondent) issued a letter/instruction informing the Applicant that the application for the Unpaid Leave was not approved. The Applicant was ordered to report for duty at the new unit (Markas 5 Brigade, Sabah) before 04.09.2024.

The Applicant did not report for duty at Markas 5 Brigade, Sabah, by the deadline of 04.09.2024.

On 13.09.2024, the Applicant reported himself to his original unit, 6 RAMD in Jitra, Kedah. Upon reporting, the Applicant was immediately placed under Loose Arrest for investigation regarding the offence of the AWOL Charge for the period between 04.09.2024 and 13.09.2024. The "Loose Arrest" was enforced from 13.09.2024 until his release on 14.09.2024.

Dissatisfied, on 01.10.2024, the Applicant filed this Judicial Review to seek the following specific reliefs in his application: a) Regarding the Transfer Order (“Reliefs 1 & 2”):

Relief 1: An Order of Certiorari to quash the decision of the First Respondent dated 15.08.2024, which rejected the Applicant's appeal and maintained the instruction for his transfer to the 5th Brigade Headquarters, Sabah; and

(ii) Relief 2: A Declaration or Mandamus directing the Respondents to reconsider the Applicant's application to be stationed solely within Region 1 (Peninsular Malaysia). b) Regarding the Disciplinary Proceedings (Reliefs 3 & 4”):

(iii) Relief 3: A Declaration that the 'Loose Arrest' imposed on the Applicant from 13.09.2024 to 14.09.2024 is void and unlawful; and

(iv) Relief 4: A Declaration that the disciplinary charge for the AWOL Charge is void and unlawful.

On 02.10.2024 (one day after the filing of this application), a summary trial was conducted by the Appropriate Superior Authority, Panglima 6 Brigade (“the Summary Trial”). The Applicant was found guilty of the AWOL Charge and sentenced to a fine/forfeiture of pay. The Applicant’s Case 12. The Applicant’s submissions rely primarily on the grounds of illegality, irrationality, and procedural impropriety, arguing that the Respondents failed to adhere to mandatory statutory procedures and principles of natural justice.

The Applicant contends that while military command has discretion, this discretion is not unfettered and must be exercised fairly, taking into account all relevant factors, specifically the Applicant's personal hardship regarding his father's medical condition, which the Respondents allegedly ignored.

The Applicant submits that military decisions are not immune from review if they violate the authority's own regulations. They rely heavily on Lord Diplock’s principles in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 to establish the standard grounds for review: illegality, irrationality, and procedural impropriety.

To counter the Respondent's argument that military matters are non-justiciable, the Applicant cites Suhairi Abu Kassim v Majlis Angkatan Tentera Malaysia & Anor [2023] 1 LNS 912, arguing that the court must balance the "demands of discipline" with the "rights of men." In Suhairi Abu Kassim (supra), the High Court held that decision-makers must take into account all relevant factors and adhere to the correct procedures; failure to do so warrants judicial intervention.

A significant portion of the submission attacks the legality of the "Loose Arrest" and the AWOL Charge. The Applicant argues these actions were void ab initio because the Respondents failed to comply with specific provisions of the Armed Forces Act 1972 (“AFA 1972”) and the Armed Forces (Court-Martial) Rules of Procedure

1976.

Specifically, they allege a failure to conduct a proper investigation under Section 95 of the AFA 1972 and a failure to provide the 'Abstract of Evidence' or allow cross-examination as required by Rule 33(2)(b) of the Armed Forces (Court-Martial) Rules of Procedure 1976. To support the position that courts may intervene in military matters when charges are legally defective, the Applicant cites Kolonel Dr Faiz Azraai bin Abdul Aziz v Mahkamah Tentera Divisyen Keempat Infantri Malaysia [2023] 5 CLJ 843, in which the Federal Court quashed a conviction on the ground of a defective charge.

The Applicant also refers to Dr Muhamad Fadly Ramly v Brig Jen (Dr) Dato’ Hj Samiran & Ors [2013] 5 CLJ 872 to argue that detention and disciplinary actions taken without proper jurisdiction are ultra vires and unlawful.

The Applicant argues that the Respondents acted in bad faith (mala fide). This is based on the allegation that the Respondents denied knowledge of the father's illness despite prior notification and that the subsequent charge of Ingkar Perintah (“Disobedience”) constituted a form of double jeopardy or oppression. To support the argument that an abuse of power or mala fide exercise of discretion is reviewable, the Applicant relies on Rosli Bin Dahlan v IG Tan Sri Razarudin Bin Husain @ Abd Rashid (Ketua Polis Negara Pdrm) & Ors [2024] MLJU 1727. Furthermore, they cite the Federal Court decision in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 to submit that even high-level executive discretion (such as that of the Attorney General) is amenable to judicial review in appropriate circumstances where there is a contravention of the law.

In the additional oral submissions, the Applicant emphasised a gross breach of natural justice, claiming that the Summary Trial on 02.10.2024 (which was conducted after the filing of this Judicial Review) was conducted without a hearing, effectively denying the Applicant the right to be heard despite the Respondents being notified of the ongoing Judicial Review application. The Applicant posits that this procedural unfairness renders the decision void, regardless of the availability of domestic remedies. The Respondents’ Case 21. The Respondent argued that the Transfer Order is non-justiciable, meaning it falls outside the court's jurisdiction to review, as the transfer of public servants, including military personnel, is a management prerogative. Citing Pengarah Pelajaran Wilayah Persekutuan v Loot Ting Yee [1982] 1 MLJ 68, the Respondent argued that a public servant holds office at the pleasure of the government and that the government has discretion to transfer personnel without judicial interference.

Relying on Fauziah Khanom bt Irshad Ali Khan v Pegawai Pejabat Pelajaran Daerah Johor Bahru & Ors [2013] 7 MLJ 737, the Respondent rebutted the claim of unfairness by stating that a transfer is only reviewable if it involves a dismissal or reduction in rank. Since the Applicant retained his rank, salary, and allowances, there was no detrimental change to his status that warranted judicial intervention.

Regarding the Applicant’s father’s illness, the Respondent argued that the commanding officer had considered the matter but was not obligated to approve the request, and the court cannot substitute its own discretion for that of the military management regarding operational postings.

The Respondent contended that the challenges to the arrest and charges were premature and failed to follow the mandatory statutory process, as the Applicant failed to utilise the internal appeal mechanism provided by Section 130 of the Armed Forces Act 1972 (“AFA 1972”). Under this section, an officer dissatisfied with a summary trial decision must first seek a revision from the Armed Forces Council.

Citing the Federal Court decision in Robin Tan Pang Heng @ Muhammad Rizal Bin Abdullah (Suing as Public Officer at Penang Turf Club) v Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2011] 2 MLJ 457, the Respondent submitted that when a statute provides a specific appeal remedy, the court is not authorized to interfere until that right has been fully exhausted. Decision and Findings of the Court 26. Having considered the written submissions, affidavits, and oral arguments from both parties, this Court dismisses the application for Judicial Review in its entirety based on the following findings: A. The Challenge Against the Transfer Order 27. The Applicant seeks an order of Certiorari to quash the decision of the First Respondent dated 15.08.2024, which maintained the instruction for the Applicant to be transferred from the 6th Battalion Royal Malay Regiment (Kedah) to the 5th Brigade Headquarters (Sabah). The Applicant further seeks a Mandamus to compel the Respondents to station him within Region 1 (Peninsular Malaysia).

The Applicant contends that the decision was procedurally improper and irrational because the Respondents failed to give due weight to his personal hardship, specifically his father’s medical condition of having blood cancer, and that delays and conflicting instructions flawed the decision-making process.

Having considered the submissions, this Court finds that the application for Reliefs 1 and 2 must fail. The decision to transfer the Applicant is non-justiciable, as it falls strictly within the management prerogative. i. The Doctrine of Management Prerogative 30. It is a trite law that a public servant holds office during the pleasure of the Yang di-Pertuan Agong. This principle extends to the transfer of officers within the service. This Court refers to the Federal Court decision in Loot Ting Yee (supra), where Salleh Abas FJ (as he then was) held at p.70 (para. F to G): “As to the allegation that the transfer was not in the public interest it suffices us to say that as employment in the civil service is during the pleasure of the Yang di-Pertuan Agong as long as he is in the service, it is for the Government to decide whether his transfer is in public interest or not having regard to the fact that the Government has a larger public duty to perform. It is not for us to interfere with the Government's discretion in the matter. To do so would only amount to an unjustifiable usurpation of the Government’s discretion by us.” [Emphasis added]

This principle is reinforced by Abdul Malik Ishak J (as he then was) in a High Court case of Dominic Selvam a/l S. Gunapragasan v Kerajaan Malaysia & Ors [2007] 2 MLJ 761, which provides the statutory authority defining the "transfer of a public officer" as an absolute management prerogative that is immune from challenge.

The primary legal issue in Dominic Selvam (supra) revolved around the interpretation of Section 13(g) of the Public Service Tribunal Act 1977. The court had to determine whether certain actions taken by the government against a public officer could be challenged or negotiated before a tribunal.

The relevance of Dominic Selvam (supra) to the present application is twofold. First, it establishes that the authority to transfer an officer is an inherent right of management, not a subject for negotiation or dispute by the officer. Secondly, by analogy matters classified as management prerogatives are generally non-justiciable in judicial review proceedings unless they are tainted by illegality of a specific kind, such as a transfer that effectively operates as a dismissal or demotion.

Furthermore, the threshold for judicial intervention is significantly higher in matters involving the Armed Forces.

Unlike the civil service, the military functions on a rigid chain of command where unquestioning obedience to deployment orders is fundamental to national security and operational readiness. Subjecting purely operational transfer orders to judicial review would introduce a civilian oversight mechanism that could paralyse military efficiency. Unless the transfer is shown to be a disguised penalty, the exigencies of the service must take precedence over the personal convenience of the officer. In our present case, the core grievance in the Applicant's Reliefs 1 & 2 is the Transfer Order moving him from the 6th Battalion (Kedah) to the 5th Brigade (Sabah). The Applicant is a serving officer in the Armed Forces. As in Dominic Selvam (supra), his service conditions regarding deployment are subject to the discretion of the management (the Armed Forces Council/Commanding Officers).

The Applicant attempts to challenge the transfer based on personal hardship and procedural fairness. As per the ratio in Dominic Selvam (supra), once a matter is classified as a "management prerogative" (such as a transfer), it is generally removed from the sphere of dispute resolution or judicial interference, provided that no other laws (such as dismissal without a hearing) are violated. ii. Absence of Punitive Elements 37. The Applicant argued that the transfer was oppressive. However, the law distinguishes between a transfer simpliciter and a transfer that constitutes punishment. As held by Vernon Ong J (as he then was) in Fauziah Khanom (supra), a transfer is amenable to judicial review only if the sentence complained of amounts to a dismissal or a reduction in rank.

In our case herein, it is undisputed that despite the transfer to Sabah, the Applicant retains his rank as Captain, his salary, and his allowances. There is no reduction in rank or pecuniary loss. Therefore, the transfer remains a purely administrative function of the military command, whereby it deploys its personnel as required by operational exigencies. It does not constitute a disciplinary punishment that triggers the procedural protections of Article 135(2) of the Federal Constitution regarding the right to be heard. iii. Discretion Regarding Personal Hardship 39. The Applicant submitted that the Respondents acted unfairly by not acceding to his appeal regarding his father's illness. While this Court sympathises with the Applicant’s family circumstances, the discretion to weigh personal hardship against service requirements lies solely with the Respondents.

The record shows that the Respondents did consider the matter but decided to maintain the Transfer Order. The Applicant cannot compel the military authority to accept his personal reasons as overriding operational needs. As argued by the Respondent, the Transfer Order remained valid and enforceable until explicitly cancelled. The Applicant’s assumption that his appeal would automatically stay the Transfer Order was legally misconceived.

Consequently, this Court holds that the decision to transfer the Applicant is an exercise of administrative discretion and management prerogative. It is not the function of this Court to substitute its own discretion for that of the Armed Forces regarding the deployment of officers. Accordingly, Reliefs 1 and 2 are dismissed. B. The Disciplinary Proceedings 42. The Applicant seeks declarations that the “Loose Arrest” imposed on 13.09.2024 and the disciplinary charge for AWOL Charge are void and illegal. The Applicant alleges procedural impropriety, specifically a failure to investigate Section 95 of the AFA 1972 and a denial of the right to cross-examine witnesses or receive an abstract of evidence under Rule 33(2)(b) of the Armed Forces (Court-Martial) Rules of Procedure 1976.

The Respondent raised a preliminary objection that this application is premature, frivolous, and vexatious because the Applicant failed to exhaust the mandatory domestic remedies provided by statute before filing for Judicial Review.

Having examined the submissions and authorities, this Court agrees with the Respondent. Reliefs 3 and 4 are dismissed on the ground of prematurity. Herein are the reasons. i. The Doctrine of Exhaustion of Domestic Remedies

It is an undisputed fact that the Applicant filed this Judicial Review application on 01.10.2024. The Summary Trial before the appropriate superior authority was conducted only on 02.10.2024. Consequently, at the time of filing, the disciplinary process was ongoing and had not yet reached a final, unappealable conclusion.

Section 130 of the AFA 1972 explicitly provides a remedy for any person dissatisfied with a summary finding or award. It states that the "Armed Forces Council" or a superior officer may review the finding or award. This constitutes a specific domestic remedy known as a “revision”. Section 130 says:

“Review of summary findings and awards

Where a charge has been dealt with summarily otherwise than by the dismissal thereof, the authority hereinafter mentioned may at any time review the finding or award.

The said authority is—

the Armed Forces Council; or

any officer superior in command to the officer who dealt summarily with the charge.” [Emphasis added]

This Court is bound by the principle established by the Apex Court in Robin Tan (supra). Heliliah bt Mohd Yusof FCJ in Robin Tan (supra), could not be clearer when she envisaged that when legislation identifies a second tier of appeal (in that case, an appeal to the Minister), courts are not authorised to interfere until that statutory right has been fully exhausted: “In our opinion, the legislation by stipulating that the Minister decides to be final is itself indicative that when there is already stipulated a second tier identified in the legislation, Courts are not authorized to interfere for the statutory right that has accrued is not purely formal but mandatory. In other words, the statutory right has to be exhausted.” [Emphasis added]

Here, the AFA 1972 provides a specific appellate mechanism, Section 130, to the Armed Forces Council. By filing for Judicial Review before the trial concluded and without seeking a revision from the Council, the Applicant attempted to bypass the mandatory statutory tribunal. Judicial review cannot be used to supplant the normal statutory appeal procedure.

Although the Applicant raises valid and serious concerns regarding procedural impropriety (failure to comply with investigation requirements under Section 95 of the AFA and failure to supply evidence under Rule 33(2)(b) of the Armed Forces (Court-Martial) Rules of Procedure 1976), these procedural defects should, by law, first be subjected to the statutory internal review mandated by Section 130 of the AFA 1972. The filing of the Judicial Review before the conclusion of the entire military adjudication process (including the available Section 130 review) contravenes the rule requiring exhaustion of domestic remedies, as established in Robin Tan (supra).

The Court also notes the Applicant's grievance raised during submissions regarding the conduct of the Summary Trial, specifically the allegation that he was 'advised' to plead guilty or that there was a 'conditional plea'. This Court holds that such grievances regarding the plea recording process and the conduct of the trial officer are precisely the types of procedural complaints that the Armed Forces Council is empowered to investigate and rectify during the revision process under Section 130 of the AFA 1972. By bypassing this internal mechanism, the Applicant has denied the statutory body the opportunity to correct these alleged irregularities.

The existence of a specialised, mandatory statutory remedy that addresses precisely the grievances raised (procedural breaches, legality of findings, and awards) renders the application to the High Court at this stage premature. The Court must respect the jurisdiction conferred upon the Armed Forces Council to conduct the first level of judicial oversight of military disciplinary actions. The court's power in Judicial Review is to oversee the decision-making process, not to usurp the function of the statutory tribunal.

This application is effectively asking the High Court to act as a court of first instance for a disciplinary appeal, a role explicitly reserved for the Armed Forces Council under the Act. ii. The Principle of Prematurity and Pre-emption 53. The court also determined that the Respondent correctly relied on the Court of Appeal case of Cheah Foong Chiew v Lembaga Jurutera Malaysia [1999] 3 MLJ 110 and Robert Cheah Foong Chiew v Lembaga Jurutera Malaysia [2005] 8 CLJ 613.

In these cases, the courts held that judicial intervention is premature if the domestic remedy has not been completed. The Court of Appeal in Cheah Foong Chiew(supra) ruled that it would be wrong for the courts to intervene at a preliminary stage because it would be tantamount to restraining the respondent from hearing the charge, thereby pre-empting the respondent’s right under the law to adjudicate the matter.

In the present case, the Applicant sought to quash the arrest and charge before the military authority had issued its decision. Granting such relief would effectively strip the Respondents of their statutory power to enforce discipline and adjudicate the matter as provided by Parliament. The Applicant must allow the domestic process to run its course. iii. Distinguishing the Applicant’s Authorities 56. The Applicant relied heavily on Suhairi Abu Kassim (supra) and Kolonel Dr Faiz Azraai (supra) to argue that military decisions are reviewable. This Court finds these cases distinguishable on the facts.

In Suhairi, the applicant had already been terminated and had already appealed to the Armed Forces Council (which maintained the decision) before filing for Judicial Review. Therefore, he had exhausted his domestic remedies. In contrast, the Applicant here filed for review before the trial decision was even made. Unlike Suhairi, where the court reviewed a decision after the tribunal had acted in breach of mandatory procedures (PMAT 4/2009), the present application attempts to stop the tribunal from sitting at all. The illegality of Suhairi's conduct was established at trial; here, it is speculative. Thus, Suhairi's ratio is inapplicable to the present case.

The Respondent argued that, to which this Court agrees, the legal principles applied in Faiz Azraai were specific to the exceptional facts of that case, which are absent here.

In that case, the officer was charged with "Desertion" (Section 54(1)(a) of the AFA) but was convicted despite the prosecution failing to prove the essential element of "intention to remain permanently absent." The Federal Court held that he should have been charged with the lesser offence of AWOL.

The Federal Court intervened because the charge itself was fundamentally defective and illegal. This constituted an "exceptional circumstance" in which the court could review the decision because a conviction based on a legally flawed charge affected the applicant's fundamental rights.

The distinction between Faiz Azraai and the present case is stark and fundamental. In Faiz Azraai, the judicial review was a post-mortem of a completed miscarriage of justice; the conviction had already been recorded based on a charge that was non-existent in law. It was an error of substance that went to the root of the tribunal’s jurisdiction.

In contrast, the Applicant herein seeks to utilise judicial review as a pre-emptive strike against a disciplinary process that has not yet concluded. There is no allegation here that 'Absence Without Leave' is an unknown offence. The Applicant’s grievances—procedural disputes regarding the abstract of evidence and the mode of arrest—are precisely the issues the military tribunal is empanelled to resolve. To allow the High Court to intervene at this nascent stage would be to usurp the statutory function of the military court and render the internal appeal mechanism under Section 130 of the AFA 1972 otiose.

The most critical distinction raised by the Respondent in the oral submissions is the timing of the Judicial Review application. The applicant, in Faiz Azraai (supra), had already undergone the court-martial process and had been convicted and discharged. The challenge was against a final decision that was legally erroneous. The Applicant in this Judicial Review filed for Judicial Review on 01.10.2024, before the Summary Trial decision was made on 02.10.2024. The Respondent argued that the disciplinary process (arrest, charge, trial, punishment) is a continuous action.

Since the Applicant sought to stop the process before utilising the mandatory remedy of revision by the Armed Forces Council under Section 130 of the AFA 1972, the application is premature.

The Respondent successfully argued that, unlike Faiz Azraai and Suhairi Abu Kassim, where the internal processes were concluded or exhausted, the Applicant here attempted to bypass the statutory tribunal.

Therefore, the court should distinguish Faiz Azraai because that case involved an exceptional circumstance of a fundamentally defective charge (error of law) where the conviction had already occurred. In the present case, the Applicant is challenging the standard disciplinary procedures prematurely, having failed to exhaust the mandatory domestic remedy of revision under Section 130 of the AFA 1972, before approaching this Court. This is obviously a total difference from Faiz Azraai. v. The Allegation of Mala Fide and Abuse of Power 67. The Applicant further submitted that the decisions of the Respondents were tainted with mala fide (bad faith) and abuse of power. He relied heavily on the High Court decision in Rosli Bin Dahlan (supra). The Applicant argued that the Respondents acted maliciously by ignoring his father's medical condition and proceeding with the arrest.

This Court finds that the reliance on Rosli Dahlan (supra) is misconceived. In that case, the court found evidence of a 'false nexus' where the authorities linked the applicant to a suspect who was completely unconnected to him, thereby justifying the freezing of his accounts. There was a visible abuse of statutory powers for a collateral purpose.

In the present case, the facts are materially different. The actions taken by the Respondents, specifically the 'Loose Arrest' and the charges under Section 50(2) and Section 55 of the AFA 1972, were based on the objective, undisputed fact that the Applicant failed to report for duty at the 5th Brigade Headquarters by the stipulated deadline.

Enforcing discipline upon an officer who is absent without leave does not constitute mala fide; it is the lawful execution of military duty. The Applicant has failed to provide any cogent evidence of 'bad faith' other than his own dissatisfaction with the outcome of his transfer appeal. As held in Sundra Rajoo (supra), while executive discretion is reviewable, the threshold for proving malicious intent is high and has not been met in this instance.

Furthermore, regarding the Applicant's reliance on Sundra Rajoo (supra), this Court accepts the Respondent's submission that the threshold to challenge the exercise of prosecutorial or disciplinary discretion is exceedingly high. Tengku Maimun Tuan Mat CJ, in Surda Rajoo (supra), was unequivocal in holding that such decisions are cloaked with a presumption of legality. The burden rests on the Applicant to adduce compelling prima facie evidence to rebut this presumption.

In this case, the Applicant relies on mere assertions of 'bad faith' without concrete evidence. The Respondent's action to prefer charges was based on the undisputed objective fact of the Applicant's absence, which constitutes a legitimate basis for disciplinary enforcement and thus fails to meet the high threshold required to trigger judicial intervention. vi. The Issue of Double Jeopardy 73. The Applicant further contends that he has been subjected to 'Double Jeopardy' in two respects: first, by being transferred and subsequently charged; and second, by facing two separate disciplinary charges (‘Absence Without Leave’ under Section 55 and ‘Disobedience’ under Section 50(2)) arising from the same narrative.

This Court finds this submission legally unsustainable. Article 7(2) of the Federal Constitution applies strictly to criminal proceedings where a person has been acquitted or convicted of the same offence. First, an administrative transfer is not a trial or a form of punishment. Secondly, the two disciplinary charges are distinct offences with different elements: one pertains to absence, the other to defiance of a specific command.

As submitted by the Respondent, the principle of double jeopardy does not preclude the military command from preferring distinct charges for separate acts of misconduct, even if they occur within the same chronological sequence. iv. Procedural Objection: Failure to Plead New Facts 76. During the additional oral submission session, learned Counsel for the Applicant raised two critical factual allegations that were not contained in the original affidavits or the Statement of Facts (Enclosure 2). Firstly, it was submitted that the Applicant had, in fact, travelled to Sabah and reported for duty on 12.08.2024, thereby complying with the initial order. Secondly, it was alleged that the Summary Trial conducted on 02.10.2024 was fundamentally flawed because it was held without a hearing, thereby constituting a gross breach of natural justice.

This Court accepts the Respondent's objection that this critical fact was not pleaded in the Applicant’s Statement of Facts (Encl. 2). It is a settled principle of administrative law that a party is bound by its pleadings.

The Court cannot consider a ground for review (breach of natural justice at the trial) that was not included in the originating papers. The Applicant may not introduce new, unpleaded facts during oral argument to salvage a prematurely filed application.

Furthermore, even if these facts were true, they constitute the very defence that the Applicant should present before the Armed Forces Council during the revision process under Section 130 of the AFA

The allegation that there was "no hearing" is a specific ground for revision.

By asking this Court to adjudicate on whether a hearing took place before the Armed Forces Council has had a chance to review the record of proceedings, the Applicant is effectively asking this Court to usurp the statutory function of the confirmation/revision authority. This reinforces the finding of prematurity.

The Court is mindful that the Summary Trial took place on 02.10.2024, one day after the filing of this Judicial Review application. However, under Order 53 Rule 3(4) of the Rules of Court 2012, the Applicant was at liberty to apply for leave to amend his Statement to include these new, critical allegations of fact regarding the conduct of the trial. The Applicant failed to do so. It is procedurally irregular for the Applicant to raise serious allegations of a 'sham trial' or 'no hearing' via oral submissions or affidavits without formally amending the Statement to give the Respondents proper notice and an opportunity to respond on record.

The Respondent submitted, relying on the principles of supervisory jurisdiction discussed in Assunta Hospital v Dr A Dutt [1981] 1 MLJ 115, that the Court is confined to the issues properly before it. This Court accepts that submission without reservation. It is a cardinal principle of administrative law that parties are bound by their pleadings, and the Court cannot determine issues based on factual allegations raised orally from the Bar that are entirely absent from the filed papers.

It is a settled rule of procedure in judicial review that an applicant is bound by the grounds set out in the Statement filed pursuant to Order 53 Rule 3(2). Consequently, this Court holds that the challenge to the disciplinary proceedings is legally premature. The Applicant has failed to exhaust the mandatory domestic remedy provided by Section 130 of the AFA 1972. Accordingly, Reliefs 3 and 4 are dismissed. v. Factual Disputes Regarding the Confusion of Dates 84. Finally, during the oral submission, learned Counsel for the Applicant vehemently argued that the Applicant was a victim of procedural unfairness due to conflicting dates. It was submitted that the decision rejecting his appeal was dated 05.09.2024 and was only received on 06.09.2024, whereas the deadline to report for duty was 04.09.2024. The Applicant contends that this retrospective timeline rendered performance impossible.

While this Court notes the submission, it finds that these are disputes of fact and merit regarding the charge of “Disobedience”. Whether the delay in the letter constitutes a valid defence or mitigation is a matter to be adjudicated by the military tribunal and reviewed by the Armed Forces Council. It is not the function of the High Court in judicial review proceedings to act as a fact-finding tribunal to determine if the Applicant had a 'reasonable excuse' for his absence.

This reinforces the Court’s finding on prematurity. These specific factual grievances are precisely what the revision process under Section 130 of the AFA 1972 is designed to remedy. By bypassing that process, the Applicant has deprived the Armed Forces Council of the opportunity to rectify these alleged administrative errors internally. Conclusion 87. For the reasons stated above, this Court finds as follows:

Reliefs 1 and 2 regarding the Transfer Order are dismissed as the subject matter constitutes a management prerogative, that is non-justiciable; and

(ii) Reliefs 3 and 4 regarding the "Loose Arrest" and Disciplinary Charge are dismissed as the application is premature due to the Applicant's failure to exhaust the mandatory domestic remedy under Section 130 of the Armed Forces Act 1972. This Court finds that the Applicant has failed to establish valid grounds for judicial review and, accordingly, the application for Judicial Review is dismissed in its entirety. 34 88. This Court also orders the Applicant to pay costs of RM5,000.00 to the Respondents (subject to the allocator). Dated: 11th February, 2026 -------------------------------------------------------------------- YA Dr. Hj. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Table of Authorities Cases Cheah Foong Chiew v Lembaga Jurutera Malaysia [1999] 3 MLJ 110 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Dominic Selvam a/l S. Gunapragasan v Kerajaan Malaysia & Ors [2007] 2 MLJ 761 Solicitor for the Applicant : Irwan Shah Asri Messrs. Aswandi Hashim & Co. Advocates & Solicitors Solicitors for the Respondents : Norshuhada Mohd Yatim Kedah State Legal Advisor's Office Dr Muhamad Fadly Ramly v Brig Jen (Dr) Dato’ Hj Samiran & Ors [2013] 5 CLJ 872 Kolonel Dr Faiz Azraai bin Abdul Aziz v Mahkamah Tentera Divisyen Keempat Infantri Malaysia [2023] 5 CLJ 843 Pengarah Pelajaran Wilayah Persekutuan v Loot Ting Yee [1982] 1 MLJ 68 Robert Cheah Foong Chiew v Lembaga Jurutera Malaysia [2005] 8 CLJ 613 Robin Tan Pang Heng @ Muhammad Rizal Bin Abdullah (Suing as Public Officer at Penang Turf Club) v Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2011] 2 MLJ 457 Rosli Bin Dahlan v IG Tan Sri Razarudin Bin Husain @ Abd Rashid (Ketua Polis Negara Pdrm) & Ors [2024] MLJU 1727 Suhairi Abu Kassim v Majlis Angkatan Tentera Malaysia & Anor [2023] 1 LNS 912 Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 Statutes Armed Forces Act 1972 Public Service Tribunal Act 1977 Rules Armed Forces (Court-Martial) Rules of Procedure 1976 Rules of Court 2012