BAIL AND THE PRINCIPLE OF GENERALIBUS SPECIALIA DEROGANT IN THE MALAYSIAN MILITARY JUSTICE SYSTEM

Abstract

This article analyses case law and literature to determine the position of bail in the military criminal justice system.  The right to bail is a fundamental human right to liberty, and ensure unfairly imprisonment before trial. The criminal justice system in many countries provides for the right to bail, including Malaysia except for offences such as drug trafficking, kidnapping and crimes which carry the death penalty. However, as the Criminal Procedure Code only applies to civilian courts in Malaysia, military personnel may not enjoy the same treatment under the Armed Forces Act 1972. It is thus essential to investigate the need for the Armed Forces Act 1972 to be reformed to include the right to bail. The finding suggests that the bail should be afforded to military offender charged under the Armed Forces Act 1972 and give the option to the military authorities the discretion to release the accused on a bail, in unanimity to the element of fundamental rights to liberty.