Section 99
Rules of Procedure
of Royal Brunei Armed Forces Act
(1)
Subject to the provisions of this section, His Majesty the Sultan and Yang Di-Pertuan* may make rules (hereinafter in this Act referred to as
Rules of Procedure) with respect to the investigation and trial of, and awarding of punishment for, offences cognisable by courts-martial, commanding officers and appropriate superior authorities and with respect to the confirmation and revision of findings and sentences of courts-martial.
* Transferred from His Majesty in Council to His Majesty the Sultan and Yang Di-Pertuan — [S 16/1986]
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(2)
Without prejudice to the generality of subsection (1), Rules of
Procedure may make provisions with respect to all or any of the following matters —
(a)
the procedure to be observed in the bringing of charges before commanding officers and appropriate superior authorities;
(b)
the manner in which charges so brought are to be investigated and the taking of evidence (whether orally or in writing, whether or not on oath and whether in full or in summary form) for the purpose of investigating or dealing summarily with such charges or otherwise as preliminary to the trial thereof by court-martial;
however the Rules shall make provision for the application of section 88 in any case where the accused requires that evidence shall be taken on oath;
(c)
in addition to, or substitution for, a charge which has been investigated, a new charge for an offence disclosed by evidence taken on the investigation and the treating of the investigation as the investigation of the new charge;
(d)
the convening and constitution of courts-martial;
(e)
the sittings, adjournment and dissolution of courts-martial;
(f)
the procedure to be observed in trials by courts-martial;
(g)
the representation of the accused at such trials;
(h)
procuring the attendance of witnesses before courts-martial and at the taking of evidence in pursuance of rules made under paragraph (b);
(i)
applying in relation to proceedings before commanding officers and appropriate superior authorities prior to trial by courts-martial all or any of the provisions of paragraphs (e), (f), (g) and (h);
(j)
empowering a court-martial or the convening officer, in such cases and to such extent as may be prescribed, to amend a charge which is being tried by the court;
(k)
empowering a court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are
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sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;
(l)
the forms of orders and other documents to be made for the purposes of any provision of this Act or the Rules of Procedure relating to the investigation or trial of, or award of punishment for, offences cognisable by courts-martial, commanding officers or appropriate superior authorities or to the confirmation and revision of the findings and sentences of courts-martial; and
(m)
any matter which is required or authorised to be prescribed by this Part.
(3)
Rules of Procedure shall not make provision with respect to the carrying out of sentences passed by courts-martial or of other punishments awarded under this Part.
(4)
A Rule of Procedure which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.
Rules as to exercise of functions of Judge Advocate 100.
(1)
Rules of Procedure may make provision as to the exercise by a
Judge Advocate of his functions at a trial by court-martial.
(2)
Without prejudice to the generality of subsection (1), Rules of
Procedure may make provisions —
(a)
as to the effect of advice or rulings given to the court by a
Judge Advocate on questions of law;
(b)
for requiring or authorising the president of a court-martial, in such cases as may be specified in the Rules to direct that questions of law or of law and fact mixed shall be determined by a Judge
Advocate in the absence of the president and other members of the court and any officers under instruction, and for applying to the
Judge Advocate and his proceedings on any such determination such of the provisions of this Act relating to the court or its members and the proceedings thereof as may be specified in the Rules.
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(3)
In subsection (2), references to questions of law include references to questions as to the joinder of charges and as to the trial of persons jointly or separately.
Taking of offences into consideration 101.
(1)
Rules of Procedure may be made for determining the cases in which and the extent to which courts-martial may, in sentencing an accused for any offence of which he is convicted, at the request of the accused, take into consideration other offences against this Act committed by him.
(2)
Where Rules of Procedure make such provisions as mentioned in subsection (1) they may also make provision for conferring on the court taking one or more offences into consideration power to direct the making of such deductions from the offender’s pay as the court would have had power to direct if he had been found guilty of the offence or offences taken into consideration as well as of the offences of which he was in fact found guilty.
Confirmation and review of proceedings of courts-martial
Confirmation of proceedings of courts-martial 102.
(1)
Where a court-martial finds the accused guilty on any charge, the record of the proceedings of the court-martial shall be sent to a confirming officer for confirmation of the finding and sentence of the court on the charge.
(2)
A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court and confirmed:
Provided that this subsection shall not affect the keeping of the accused on custody pending confirmation or the operation of section 103 or the provisions of this Act as to confirmation.
Petitions against finding or sentence 103.
At any time after court-martial has sentenced the accused, or has found the accused to be unfit to stand his trial or to be not guilty by reason of insanity, but not later than the prescribed time after confirmation is completed, the accused may in the prescribed manner present a petition against the finding or sentence or both.
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Powers of confirming officers 104.
(1)
Subject to the provisions of this section, a confirming officer shall deal with the finding or sentence of a court-martial by —
(a)
withholding confirmation, if of opinion that the finding of the court-martial is under all the circumstances of the case unsafe or unsatisfactory or involves a wrong decision on a question of law or that there was a material irregularity in the course of the trial; or
(b)
confirming the finding or sentence:
Provided that the confirming officer may, notwithstanding that he is of opinion that he would apart from this proviso withhold confirmation of the finding, confirm the finding if he considers that no miscarriage of justice has actually occurred.
(2)
Instead of withholding confirmation of the finding of a court-martial, a confirming officer may, if —
(a)
some other finding of guilty could have been validly made by the court-martial on the charge before it; and
(b)
he is of opinion that the court-martial must have been satisfied of the facts necessary to justify that other finding, substitute that other finding, and if he does so, he shall consider in what manner, if at all, the powers conferred by subsection (4) should be exercised, or a confirming officer may, if he is of opinion that the case is not one where there should have been a finding of not guilty, but that there should have been a finding that the accused was unfit to stand his trial, substitute a finding that the accused was unfit to stand his trial.
(3)
Where it appears to a confirming officer that a sentence of a court-martial is invalid, he may, instead of withholding confirmation of the sentence substitute therefor a sentence of any punishment or punishments which could have been awarded by the court-martial, not being greater than the punishment or greatest of the punishments awarded by the court-martial and not in his opinion more severe than that punishment or those punishments.
(4)
In confirming the sentence of a court-martial, a confirming officer may —
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(a)
remit in whole or in part any punishment awarded by the court; or
(b)
commute any such punishment for one or more punishment or punishments provided by this Act, being less than the punishment commuted.
(5)
In confirming any sentence, a confirming officer may postpone the carrying out of the sentence for such time as seems expedient, and a confirming officer may extend or terminate any postponement ordered under this subsection.
(6)
A finding or sentence substituted by the confirming officers, or any sentence having effect after the confirming officer has remitted or commuted punishment, shall be treated for all purpose as a finding or sentence of the court-martial duly confirmed.
(7)
The confirmation of a finding or sentence is not deemed to be completed until the finding or sentence has been promulgated; and in the event of any such substitution, remission or commutation as mentioned in subsection (6) the finding or sentence shall be promulgated as it has effect after the substitution, remission or commutation.
(8)
Where the confirming officer determines to withhold confirmation, the determination shall be promulgated and shall have effect as from the promulgation thereof.
Confirming officers 105.
(1)
Subject to the provisions of this section, the following may act as a confirming officer in relation to the finding and sentence of a court-martial —
(a)
the officer who convened the court-martial;
(b)
the successor of any such officer or any person for the time being exercising the functions of any such officer; or
(c)
failing any such officer, any officer (other than the
Commander or the Colonel in Chief) appointed by His Majesty the
Sultan and Yang Di-Pertuan to act as confirming officer, whether for the particular case or for a specified class of cases.
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(2)
The following shall not act as a confirming officer in relation to the finding and sentence of a court-martial —
(a)
any officer who was a member of the court-martial; or
(b)
any person who, as commanding officer of the accused, investigated the allegations against him, or who is for the time being the commanding officer of the accused.
Review of findings and sentences of court-martial 106.
(1)
A finding or sentence which has been confirmed may at any time be reviewed by a reviewing authority, and if after confirmation of a finding or sentence a petition is duly presented under section 103 against the finding or sentence, then, subject to the provisions of this section, the finding or sentence shall be so reviewed as soon as may be after the presentation of the petition and after consideration of the matters alleged therein.
(2)
The reviewing authorities for the purposes of this Act are the following —
(a)
His Majesty the Sultan and Yang Di-Pertuan;
(b)
the Colonel in Chief;
(c)
the Commander; or
(d)
any officer other than and superior in rank to the confirming officer.
(3)
If an application for leave to appeal against conviction is received by the Registrar of the Court of Appeal or the Registrar receives particulars of such an application furnished in pursuance of section 140(4)(b), so much of subsection (1) as requires the review of a finding or sentence against which a petition has been presented shall thereupon cease to apply to the finding to which the application for leave to appeal relates and the sentence passed in consequence of that finding.
(4)
On a review under this section, the reviewing authority may —
(a)
in so far as the review is of a finding, quash the finding and, if the sentence relates only to the finding quashed, the sentence;
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(b)
in so far as the review is of a sentence, quash the sentence;
(c)
in any case, exercise the like powers of substituting findings, substituting valid for invalid sentences and remitting or commuting punishments as are conferred on a confirming officer by section 104(2) to (4), and any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment, shall be treated for all purposes as a finding or sentence of the court-martial duly confirmed.
(5)
Where a reviewing authority exercises any of the powers conferred by subsection (4), the determination of the authority shall be promulgated and shall have effect as from the promulgation thereof.
Review of summary findings and awards
Review of summary findings and awards 107.
(1)
Where a charge has been dealt with summarily, otherwise than by the dismissal thereof, the authority mentioned in subsection (2) may at any time review the finding or award.
(2)
The authority referred to in subsection (1) is —
(a)
where a charge has been dealt with summarily by a commanding officer, the appropriate superior authority;
(b)
where a charge has been dealt with summarily by an officer of the rank of Colonel or above in command as appropriate superior authority, the Colonel in Chief or the Commander; or
(c)
where a charge has been dealt with summarily by the
Colonel in Chief or the Commander as appropriate superior authority,
His Majesty the Sultan and Yang Di-Pertuan.
(3)
Where on review under this section it appears to that authority expedient so to do by reason of any mistake of law in the proceedings on the summary dealing with the charge or of anything occurring in those
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proceedings which in the opinion of the authority involved substantial injustice to the accused, the authority may quash the finding.
(4)
If a finding in any proceedings is quashed under subsection
(3)
and the award made in those proceedings relates only to the finding quashed, the authority shall also quash the award.
(b)
If the award relates also to any other finding and it appears to the authority that the award was not warranted by this Act in respect of that other finding, the authority may vary the award by substituting such punishment or punishments as the authority may think proper, being a punishment or punishments which could have been included in the original award in relation to that other finding, and not being in the opinion of the authority more severe than the punishment or punishments included in the original award.
(5)
Where on a review under this section it appears to that authority that a punishment awarded was invalid, or too severe, or (where the award included two or more punishments) that those punishments or some of them could not validly have been awarded in combination or are, taken together, too severe, the authority may vary the award by substituting such punishment or punishments as the authority may think proper, being a punishment or punishments which could have been included in the original award and not being in the opinion of the authority more severe than the punishment or punishments included in the original award.
Findings of insanity etc.
Provisions where accused unfit to stand trial 108.
(1)
For the purposes of this section, “unfit to stand his trial” means, in relation to the accused on trial by court-martial, that the accused —
(a)
is of unsound mind and consequently incapable of making his defence; or
(b)
though not insane, cannot be made to understand the proceedings.
(2)
Where, on the trial of a person by court-martial, it appears to the court-martial that the accused is unfit to stand trial, the court-martial shall so find; and if the finding is confirmed in accordance with the following
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provisions of this section, the accused shall be kept in custody in such manner as may be provided by or under regulations made by His Majesty the
Sultan and Yang Di-Pertuan* until the directions of His Majesty the Sultan and Yang Di-Pertuan are known or until any earlier time at which the accused is fit to stand trial.
(3)
Where, on the trial of a person by court-martial, it appears to the court-martial that the evidence is such as, apart from any question of insanity, to support a finding that the accused was guilty of any offence, but that at the time of the acts or omissions constituting that offence the accused was insane and consequently incapable at that time of knowing the nature of such acts or omissions or that such acts or omissions were either wrong or contrary to law, the court-martial shall find that the accused was not guilty of that offence by reason of insanity, and thereupon the accused shall be kept in custody in such manner as may be provided by or under regulations made by
His Majesty the Sultan and Yang Di-Pertuan* until the directions of His
Majesty the Sultan and Yang Di-Pertuan are known.
(4)
In the case of any such finding pursuant to subsections (2) or (3),
His Majesty the Sultan and Yang Di-Pertuan may give orders for the safe custody of the accused during the pleasure of His Majesty the Sultan and
Yang Di-Pertuan in such place and in such manner as His Majesty the Sultan and Yang Di-Pertuan thinks fit.
(5)
A finding under subsection (2) shall not have effect unless and until the finding has been confirmed by an officer who would have had power to confirm a finding of guilty come to by the court-martial in question and has been confirmed.
(6)
Where on the trial of a person by court-martial, the question arises (at the instance of the defence or otherwise) whether the accused is unfit to stand his trial, the following provisions shall have effect —
(a)
the court-martial, if having regard to the nature of the supposed grounds for the question arising, the court-martial is of opinion that it is expedient to do so and in the interests of the accused, may postpone consideration of the question until any time up to the opening of the case for the defence, and if before the question fails to be determined, the court-martial finds the accused not guilty of the charge or each of the charges on which he is being tried, the question shall not be determined;
* Transferred from His Majesty in Council to His Majesty the Sultan and Yang Di-Pertuan — [S 16/1986]
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(b)
subject to paragraph (a), the question shall be determined as soon as it arises;
(c)
where the accused is found unfit to stand his trial, the trial shall not proceed or further proceed, but if the question is determined at a time later than on arraignment, the confirming office, or reviewing authority may substitute a finding of not guilty (other than a finding of not guilty by reason of insanity), if of opinion that the court-martial should before that time have come to such a finding.
(7)
The provisions of this Act as to confirmation and review (and in particular the provisions of this Act which confer power to substitute for any finding any other finding which could have come to by the court-martial in question) apply in relation to such findings as are provided for by subsection
(3)
as those provisions apply in relation to findings of guilty.
(8)
Where the confirming officer or reviewing authority substitute for a finding of not guilty by reason of insanity a finding of guilty of an offence, the confirming officer or reviewing authority shall have the like powers of sentencing the accused and other powers as the court-martial would have had on the like findings of guilty, and any sentence imposed shall be promulgated and have effect as would a sentence duly substituted by the confirming officer or reviewing authority for a sentence of the court-martial:
Provided that the confirming officer or reviewing authority shall not have power by virtue of this subsection to impose a sentence of death apart from this proviso a sentence of death would be required by law, the sentence shall
(whatever the circumstances) be one of imprisonment for life.
Saving for functions of Judge Advocate General
Saving for functions of Judge Advocate General 109.
Nothing in the foregoing provisions of this Part shall prejudice the exercise of the functions conferred (whether by General Orders or otherwise)
on the Judge Advocate General of considering and reporting on the proceedings of court-martial or any other functions so conferred on him in relation to such courts.
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Commencement and duration of sentences
Commencement 110.
(1)
Except where otherwise expressly provided by any written law, a military sentence of imprisonment or detention shall begin to run from the beginning of the day on which sentence was originally pronounced by the court-martial trying the offender or, as the case may be, was originally awarded by his commanding officer or by an appropriate superior authority.
(2)
Where any person serving a military sentence of imprisonment or detention becomes illegally at large during the currency of the sentence, then, in calculating the period for which he is liable to be imprisoned or detained in pursuance of the sentence, no account shall be taken of any time spent unlawfully at large.
(3)
For the purposes of subsection (2), a person shall not be held to be unlawfully at large during any period in respect of which he satisfies the
Commander that he was in the custody of any civil or military authority of
Brunei Darussalam or of any country or territory abroad authorised by law to detain persons.
Consecutive terms of imprisonment and detention 111.
(1)
Where any person who is serving a sentence of imprisonment, whether passed under this Act or otherwise, is awarded a military sentence of imprisonment, or where a person who is awarded a military sentence of imprisonment is further sentenced to imprisonment under section 61(2), the court-martial by whom the subsequent or further sentence is awarded may order that sentence shall begin to run from the expiry of the first-mentioned sentence.
(2)
Where any person who is serving a military sentence of detention is found guilty under this Act of another offence for which he is awarded a military sentence of detention, or where a person who is awarded a military sentence of detention is further sentenced to detention under section 61(2), the court-martial or officer by whom the subsequent or further sentence is awarded may order that the sentence shall begin to run from the expiry of the first-mentioned sentence.
(3)
Where a person is convicted by a court-martial of two or more offences against section 72 consisting in the commission of a civil offence for which a civil court in Brunei Darussalam could award imprisonment, the
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court-martial may by its sentence, award for any of those offences, a term of imprisonment which is to run from the expiry of a term awarded by that sentence for any other of those offences.
Limitation of total period of sentences of detention 112.
(1)
Notwithstanding anything in this Part, no offender shall be kept continuously in detention for a period exceeding 2 years in pursuance of two or more sentences of detention.
(2)
Subsection (1) shall not affect the validity of any order of direction under this Part that a sentence of detention shall begin to run from the expiry of another such sentence, but so much of any term of detention to which any such order or direction relates as would prolong the total term of detention beyond 2 years shall be remitted by virtue of the order or direction.
(3)
Where any person who has been sentenced by a court-martial under this Act to detention is subsequently sentenced by a court-martial under this Act to imprisonment, any part of the sentence of detention which has not been served shall thereupon be remitted by virtue of this subsection.
Execution of sentences of death, imprisonment and detention
Execution of sentences of death 113.
(1)
His Majesty the Sultan and Yang Di-Pertuan* may make regulations with respect to the execution of sentences of death under this Act whether passed in Brunei Darussalam or abroad.
(2)
Without prejudice to the generality of subsection (1), regulations under this section may make provision with respect to all or any of the following matters —
(a)
the manner in which, the person by whom and the country or territory, place and kind of establishment (whether military or not)
where any such sentence is to be executed; and
(b)
the custody and treatment of the person under sentence and his removal from one place or establishment to another between the passing and execution of the sentence,
* Transferred from His Majesty in Council to His Majesty the Sultan and Yang Di-Pertuan — [S 16/1986]
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or may authorise such persons as may be specified in or determined by or under the regulations to give directions with respect to all or any of those matters.
(3)
Such officer not below the rank of Major as may be specified in or determined under regulations under this section shall be responsible for the due execution of any sentence of death passed under this Act.
Imprisonment and Detention Rules 114.
(1)
Subject to the provisions of this Act, His Majesty the Sultan and
Yang Di-Pertuan* may make rules (in this Part referred to as Imprisonment and Detention Rules) with respect to all or any of the following matters —
(a)
the places in which and the establishments or forms of custody (whether military or not) in which persons may be required to serve the whole or any part of military sentences of imprisonment and detention passed on them;
(b)
the committal of persons under military sentences of imprisonment or detention to the appropriate establishment or form of custody, their removal from one country or place to another and their release on the coming to an end of any term of imprisonment or detention;
(c)
the provision, classification, regulation and management of military establishments;
(d)
the classification, treatment, employment, discipline and control of persons serving military sentences of imprisonment or detention in military establishments or otherwise in military custody;
(e)
the temporary release on compassionate grounds of persons serving such sentences in such establishments or custody as aforesaid, the cases in which, periods for which and conditions subject to which they may be allowed out of any such establishment or custody and the remission of part of any such sentence for good conduct and industry;
(f)
the appointment, powers and duties of inspectors, visitors, officers and other members of the staff of military establishments.
* Transferred from His Majesty in Council to His Majesty the Sultan and Yang Di-Pertuan — [S 16/1986]
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(2)
Imprisonment and Detention Rules shall not authorise the infliction of corporal punishment.
Supplementary provisions relating to regulations and rules under sections 113 and 114 115.
Regulations made under section 113 or Imprisonment and Detention
Rules may contain such incidental and supplementary provisions as appear to His Majesty the Sultan and Yang Di-Pertuan* to be requisite for the purposes of the regulations or rules.
Special provisions as to civil prisons in Brunei Darussalam 116.
A person sentenced to death or imprisonment and committed or transferred to a civil prison in pursuance of regulations under section 113 or of the Imprisonment and Detention Rules shall, while in that prison, be confined and otherwise dealt with in the same manner as a person confined therein under a like sentence of a civil court.
Duties of Director or officers in charge of civil prisons to receive prisoners 117.
(1)
It shall be the duty of the Director or officer in charge of a civil prison to receive any person duly sent to that prison in pursuance of regulations under section 113 or of the Imprisonment and Detention Rules and to confine him until execution of the sentence is completed or the prisoner is discharged or delivered over in due course of law.
(2)
Where a person is in military custody in pursuance of a military sentence of imprisonment or detention, then on receipt of a written order in that behalf purporting to be signed by that person’s commanding officer, it shall be the duty of any such Director or officer in charge as aforesaid, or the police officer in charge of a police station or of any person in charge of any other place in which prisoners may be lawfully confined to keep that person in custody:
Provided that no person shall be kept in custody at a police station for a period exceeding 7 days.
* Transferred from His Majesty in Council to His Majesty the Sultan and Yang Di-Pertuan — [S 16/1986]
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Trial of persons ceasing to be subject to military law and time limits for trials
Trial and punishment of offences under military law notwithstanding offender ceasing to be subject to military law 118.
(1)
Subject to the provisions of section 119, where an offence under this Act triable by court-martial has been committed, or is reasonably suspected of having been committed, by any person while subject to military law, then in relation to that offence he shall be treated, for the purposes of the provisions of this Act relating to arrest, keeping in custody, investigation of charges, trial and punishment by court-martial (including confirmation and review) and execution of sentences, as continuing subject to military law notwithstanding his ceasing at any time to be subject thereto.
(2)
Where, while a person is in military custody by virtue of this section (whether before, during or after trial), he commits, or is reasonably suspected of having committed, an offence which if he were subject to military law would be an offence under this Act triable by court-martial, then in relation to that offence or suspected offence, he shall be treated, for the purposes of the provisions of this Act mentioned in subsection (1) and the provisions thereof as to the summary dealing with charges, as having been subject to military law when the offence was committed or is suspected of having been committed and as continuing subject to military law thereafter.
(3)
Where by virtue of either subsection (1) or (2) a person is treated as being at any time subject to military law for the purpose of any provision of this Act, that provision shall apply to him —
(a)
if he holds any military rank, as to a person having that rank;
(b)
otherwise as to a person having the rank which he had when last actually subject to military law:
Provided that as respects any time after he has been sentenced for the offence in question and the sentence has been confirmed, that provision shall apply to him (in any case) as to a soldier.
(4)
Where apart from this subsection any provision of this Act would under subsection (3) apply to a person, in relation to different offences, as to a person having different ranks, it shall apply to him as to a person having the lower or lowest of those ranks.
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Limitation of time for trial of offences under military law 119.
(1)
No person shall be tried by court-martial for any offence, other than one against section 37, 38 or 43, unless the trial is begun within 3 years after the commission of the offence, there being disregard any time during which he was a prisoner of war and any time during which he was illegally absent:
Provided that —
(a)
in the case of offence against section 72 where proceedings for the corresponding civil offence must, by virtue of any written law, be brought within a limited time, that limit of time shall apply to the trial of the offence under section 72 in substitution for the foregoing provisions of this subsection;
(b)
subject to any such limit of time as is mentioned in paragraph (a), a person may be tried by court-martial for a civil offence committed outside Brunei Darussalam notwithstanding that it was committed more than 3 years before the beginning of the trial, if the Attorney General consents to the trial.
(2)
A person shall not be triable under section 118(1) unless his trial is begun within 3 months after he ceases to be subject to military law, or the trial is for a civil offence committed outside Brunei Darussalam and the
Attorney General consents to the trial:
Provided that this subsection does not apply to an offence against sections 37, 38 and 43.
(3)
A person shall not be arrested or kept in custody by virtue of section 118(1) for an offence at any time after he has ceased to be triable for the offence.
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Relations between military law and civil courts and finality of trials
Jurisdiction of civil courts 120.
(1)
Where a person subject to military law —
(a)
has been tried for an offence by a court-martial or has had an offence committed by him taken into consideration by a court-martial in sentencing him; or
(b)
has been charged with an offence under this Act and has had the charge dealt with summarily by his commanding officer or the appropriate superior authority, a civil court shall be debarred from trying him subsequently for an offence substantially the same as that offence; but except as aforesaid nothing in this
Act shall be construed as restricting the jurisdiction of any civil court to try a person subject to this Act for an offence.
(2)
For the purposes of this section —
(a)
a person is not deemed to have been tried by a court-martial if confirmation is withheld of a finding by the court-martial that he is guilty of the offence, or of a finding by the court-martial that he is not guilty of the offence by reason of insanity;
(b)
a person is not deemed to have had an offence taken into consideration by a court-martial in sentencing him if confirmation of the sentence is withheld or the sentence is quashed;
(c)
a case is deemed to have been dealt with summarily by the commanding officer or appropriate superior authority notwithstanding that the finding of that officer or authority has been quashed, or the award of that officer or authority quashed or varied, on the review thereof.
Persons not to be tried under this Act for offences already disposed of 121.
(1)
Where a person subject to military law —
(a)
has been tried for an offence by a competent civil court, wherever situated, or a court-martial held under this Act;
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(b)
has had an offence committed by him taken into consideration when being sentenced by a competent civil court in
Brunei Darussalam or a court-martial held under this Act;
(c)
has been charged with an offence under this Act and has had the charge dismissed, or has been found guilty on the charge, by his commanding officer or the appropriate superior authority; or
(d)
has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by court-martial or to have the case dealt with summarily by his commanding officer or the appropriate superior authority.
(2)
For the purposes of this section —
(a)
a person is not deemed to have been tried by a court-martial if confirmation is withheld of a finding by the court-martial that he is guilty of the offence, or of a finding by the court-martial that he is not guilty of the offence by reason of insanity;
(b)
a person is not deemed to have had an offence taken into consideration by a court-martial in sentencing him if confirmation of the sentence of the court is withheld or the sentence is quashed;
(c)
a case is deemed to have been dealt with summarily by the commanding officer or appropriate superior authority notwithstanding that the finding of that officer or authority has been quashed, or the award of that officer or authority quashed or varied, on the review thereof;
(d)
an offence is deemed to have been condoned by the commanding officer of a person alleged to have committed the offence if, and only if, that officer or any officer authorised by him to act in relation to the alleged offence has with knowledge of all relevant circumstances informed him that he will not be charged therewith;
(e)
a person ordered under section 61(2) to be imprisoned or to undergo detention for an offence against that section is deemed to have been tried by court-martial for the offence.
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(3)
Where confirmation of a finding of guilty of an offence or of a finding of not guilty of an offence by reason of insanity is withheld, the accused shall not be tried again by court-martial for that offence unless the order convening the later court-martial is issued not later than 28 days after the promulgation of the decision to withhold confirmation.
(4)
Except as provided in the foregoing provisions of this section, proceedings for an offence against this Act (whether before a commanding officer or appropriate superior authority or before a court-martial) shall not be barred on the ground of condonation.
Inquiries
Boards of inquiry 122.
(1)
Subject to and in accordance with the provision of rules made by
His Majesty the Sultan and Yang Di-Pertuan* under this section (in this Act referred to as board of inquiry rules), His Majesty the Sultan and Yang Di-Pertuan or any such officers as His Majesty the Sultan and Yang Di-Pertuan may appoint in that behalf (in this section referred to as the convening authority) may convene a board of inquiry and refer to them any matter connected with the government, discipline, administration or functions of the
Armed Forces or the Reserve Regiment or affecting any person subject to military law.
(2)
A board of inquiry shall investigate and report on the facts relating to any matter referred to it and, if directed by the convening authority to do so, express their opinion on any question arising out of such matter.
(3)
A board of inquiry shall consist of —
(a)
a president, who shall be an officer not below the rank of
Captain and be subject to military law; and
(b)
not less than two other members each of whom shall either be a person so subject or be a person not so subject who is in the service of His Majesty the Sultan and Yang Di-Pertuan.
* Transferred from His Majesty in Council to His Majesty the Sultan and Yang Di-Pertuan — [S 16/1986]
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(4)
A board of inquiry may —
(a)
summon any person to give evidence on oath or affirmation, except in circumstances such that if the evidence were being taken at a court-martial, an oath could be dispensed with;
(b)
summon any person to produce any document or material necessary for the purpose of the inquiry;
(c)
visit any place in order to inquire into any matter which may arise in the course of the inquiry;
(d)
save as otherwise provided in this Act or in board of inquiry rules, act in such manner as they consider most expedient and receive any evidence which they consider relevant to the matter referred to them, whether oral or written and whether or not it would be admissible in a civil court.
(5)
Where it appears to a board of inquiry that any witness or other person subject to military law may be affected by its findings, they shall notify him thereof and give him an opportunity of being present, and represented, at the sittings of the board or such part thereof as the president may specify.
(6)
Evidence given before a board of inquiry shall not be admissible against any person in proceedings before a court-martial, commanding officer or appropriate superior authority, other than proceedings for an offence against section 72 where the corresponding civil offence is an offence under section 193 of the Penal Code (Chapter 22).
(7)
A board of inquiry shall not sit in public and no person shall be allowed to attend an inquiry or address the board except with the permission of the president or upon the direction of the convening authority.
(8)
The president shall —
(a)
record or cause to be recorded in writing the proceedings of the board of inquiry;
(b)
read or cause to be read over to each witness the evidence given by the witness before the board of inquiry, and the witness shall sign the record thereof;
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(c)
forward to the convening authority a record of the proceedings of the board of inquiry which shall be signed by the president and the other members of the board.
(9)
For the removal of doubt, it is hereby declared that the proceedings of a board of inquiry are a judicial proceeding for the purposes of section 193 of the Penal Code (Chapter 22).
Inquiries into absence 123.
(1)
Where a board of inquiry inquiring into the absence of an officer, warrant officer, non-commissioned officer or soldier reports that he has been absent without leave or other sufficient cause for a period specified in the report, not being less than 21 days, a record of the report shall in accordance with General Orders be entered in the service books.
(2)
A record entered in pursuance of subsection (1) shall, unless the absentee subsequently surrenders or is arrested, or the report of the board of inquiry is annulled by the Commander or a subsequent board of inquiry, have the same effect as a conviction by court-martial for desertion.
Provisions with respect to Office of Judge Advocate General
Judge Advocate General 124.
(1)
His Majesty the Sultan and Yang Di-Pertuan may appoint a person to be the Judge Advocate General of the Armed Forces and the
Reserve Regiment.
(2)
No person shall be qualified for appointment as Judge Advocate
General under subsection (1) unless he is —
(a)
a member of the judicial or legal service of Brunei
Darussalam or of any part of the Commonwealth of not less than 5
years’ service;
(b)
an advocate of not less than 5 years standing under the
Legal Profession Act (Chapter 132);
(c)
a person who is a practitioner of not less than 5 years standing entitled to practise as a barrister, advocate, solicitor, attorney or by whatever name called, in a court having unlimited
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jurisdiction in civil and criminal matters in any part of the
Commonwealth or in any court having appellate jurisdiction from any such court; or
(d)
a person who holds and has held for a period of not less than 5 years any professional qualification required under the Legal
Profession Act (Chapter 132) for an advocate or under any other written law in any part of the Commonwealth for any practitioner referred to in paragraph (c).
(3)
The Judge Advocate General shall —
(a)
advise His Majesty the Sultan and Yang Di-Pertuan and the officers of the Armed Forces and of the Reserved Regiment whenever required to do so pursuant to General Orders or otherwise on the validity of the findings and sentences of courts-martial and on any other matters concerning courts-martial and military law which may be referred to him;
(b)
appoint such persons having judicial or legal experience as may from time to time be required to act as Judge Advocates at courts-martial.
General
Restitution or compensation for theft etc.