In airman’s sacking, law experts see military authorities breaching natural justice, constitution

Malay Mail
by YISWAREE PALANSAMY

KUALA LUMPUR, Jan 16 — Malaysia’s armed forces had failed to abide by the rules of natural justice and the Federal Constitution in the recent sacking of airman Major Zaidi Ahmad for blowing the whistle on the weaknesses of the electoral ink touted as indelible in the 2013 polls, law experts said last night.

Speaking at a forum organised by electoral reforms watchdog Bersih 2.0 here, Malaysian Bar vice-president Steven Thiru said that natural justice forms the cornerstone of the country’s supreme law.

He pointed out that the military tribunal that tried and sentenced Zaidi does not function “within the four corners of the constitution”, but stressed that even without that, the special court has a duty to dispense justice according to existing law.

“You will be surprised to know that the Military Court can imprison and even sentence a service personnel to death. It has very wide powers,” the lawyer said.

“There must be rights for both parties to be heard and a breach of the rule of natural justice can render the decision unlawful,” he added.

Steven said that in Malaysia, the right to work is not a contractual right alone but is also a constitutional right as it is essentially a person’s right to live.

Alluding to Zaidi’s case, the lawyer suggested that the dismissal of the airman who had served 26 years with the military was an example of this breach of natural justice.

“If you are going to sack someone therefore, you have to grant the person the right to be heard and you cannot get rid of someone in breach of natural justice as you will also breach his constitutional right,” he said.

The Bar Council man was not alone in his view.

Universiti Selangor law lecturer Dr Abdul Aziz Bari noted the tradition of following superior orders and natural justice sometimes conflict with each other in the military.

However, he said that the Federal Constitution as the country’s highest law, takes precedence to orders issued by a superior military officer, especially in Zaidi’s case.

“In this, I don’t see the logic as to how Major Zaidi was dismissed because he disregarded a superior order, because we have a constitution and what he did is legit under the constitution.

“He was just exercising the moral duty of a responsible citizen by lodging a police report. We are dealing with a situation whereby a public authority like the Election Commission failed to do its job,” the academic said, adding, “So where does his fault really lie?”

Abdul Aziz said that even orders issued by the military must be based on the law and be just, adding that morality cannot be set aside.

“Moral imperative must prevail otherwise, what’s the point of the Federal Constitution?” he asked, alluding to the question of bias raised by Zaidi’s defence team during the latter’s court martial last year.

On November 5, 2014 Zaidi’s lawyers had applied to dissolve the military court panel which presided over his disciplinary case for publicly complaining about the indelible ink, claiming that there has been “real bias”.

Mohamed Hanipa Maidin, the lead counsel for Zaidi, said that his client had found a comment in response to an October 20, 2014 article by news portal Malaysiakini, allegedly made by one of the judges in this case which would indicate bias.

In Zaidi's affidavit that was sighted by reporters, the comment was posted on October 21 under the name of one “Saadon T'son”, with the remark being “Klu tak nak jd tentera duduk kampung motong getah jer.” (If don't want to be in the military, just stay in the village and tap rubber.”

Steven pointed out that with the shadow of bias hanging over the military tribunal, it would have been proper for the person alleged to have voluntarily stepped down.

“Usually, the person implicated as having a strong notion against or for the case must disqualify themselves. He or she may not be biased but there is a likelihood of bias… justice must not only be done but must be seen to be done and even if the judge carries on with the ruling, questions will still arise, even though their judgement was right,” Steven said.

He pointed out that while the tribunal reserves the right to dismiss Zaidi, it has to take note of another implied rule, that the decision imposed must commensurate with the offence.

“The question that must be asked now is if the dismissal was harsh,” Steven said.

On Monday, a five-man panel in the Military Court here found Zaidi to be guilty of two charges — publishing an article without the consent of the Defence Ministry, and revealing the contents of official documents on the indelible ink without authorisation from the Malaysian Armed Forces Council.

The airman who had served for 26 years was sentenced to be dismissed from the military.

Indelible ink was introduced in Election 2013 as one of the main safeguards against repeat voting, but the scandal surrounding its easy removal transformed it into a symbol of the widespread electoral fraud allegedly perpetrated to keep the Barisan Nasional coalition in power.