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

Military justice is essential for maintaining discipline and order in the military. The Federal Constitution of Malaysia safeguards the fundamental right of individuals to be represented by a legal practitioner of their preference through Article 5(3), and Section 255 of the Criminal Procedure Code (Act 593) also provides the right of the accused to be defended before any criminal court. Additionally, Article 8 guarantees everyone equal legal protection. Thus, everyone has the right to legal representation, which is essential. Nonetheless, no provision in the Armed Forces Act 1972, Armed Forces (Court-Martial) Rules of Procedure 1976, and Armed Forces (Summary Jurisdiction) Regulation 1976 guarantees legal representation during summary proceedings. The omission of this provision will be examined through pertinent cases and compared to the United States’ position. This legal research is purely doctrinal, analysing the relevant legal provisions and court rulings. Despite the fact that the Federal Constitution ensures the right to legal representation and equality, this article argues that introducing legal representation during summary proceedings is at the discretion of the commanding officer, subordinate commander, and appropriate superior authority, taking into account the distinct characteristics of such proceedings. This article proposes a need for reform of the current law to allow army personnel to opt for court-martial and to establish an appeal mechanism for the accused.