Grave breaches of scheduled conventions
(1) Any person, whatever his citizenship or nationality, who, whether in or outside Malaysia, commits, or aids, abets or procures the commission by any other person of any such grave breach of any of the scheduled conventions as is referred to in the following articles respectively of those conventions:
(a) article 50 of the convention set out in the First Schedule;
(b) article 51 of the convention set out in the Second Schedule;
(c) article 130 of the convention set out in the Third Schedule; or
(d) article 147 of the convention set out in the Fourth Schedule,
shall be guilty of an offence and shall, on conviction,
(i) in the case of such a grave breach as aforesaid involving the wilful killing of a person protected by the convention in question, be sentenced to imprisonment for life;
(ii) in the case of any other such grave breach as aforesaid, be liable to imprisonment for a term not exceeding fourteen years.
(2) In the case of an offence under this section committed outside Malaysia, a person may be proceeded against, charged, tried and punished therefor in any place in Malaysia as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.
(3) No Magistrates’ Court shall have jurisdiction to try any offence under this section.
(4) Proceedings for an offence under this section shall not be instituted except by or on behalf of the Public Prosecutor.
(5) If in proceedings under this section in respect of a grave breach of any of the scheduled conventions any question arises under article 2 of that convention (which relates to the circumstances in which the convention applies), that question shall be determined by the Minister and a certificate purporting to set out any such determination and to be signed by or on behalf of the Minister shall be received in evidence and be deemed to be signed without further proof, unless the contrary is shown.
(6) The written law relating to the trial by court martial of persons who commit civil offences shall have effect for the purposes of the jurisdiction of court martial convened in Malaysia as if this section had not been passed.
Notice of trial of protected person to be served on protecting power
(1) The court before which—
(a) a protected prisoner of war is brought up for trial for any offence; or
(b) a protected internee is brought up for trial for an offence for which that court has power to sentence him to death or to imprisonment for a term of two years or more,
shall not proceed with the trial until it is proved to the satisfaction of the court that a notice containing the particulars mentioned in subsection (2), so far as they are known to the prosecutor, has been served not less than three weeks previously on the protecting power and, if the accused is a protected prisoner of war, on the accused and the prisoners’ representative.
(2) The particulars referred to in subsection (1) are—
(a) the full name and description of the accused, including the date of his birth and his profession or trade, if any, and, if the accused is a protected prisoner of war, his rank and army, regimental, personal or serial number;
(b) his place of detention, internment or residence;
(c) the offence with which he is charged; and
(d) the court before which the trial is to take place and the time and place appointed for the trial.
(3) For the purposes of this section a document purporting—
(a) to be signed on behalf of the protecting power or by the prisoners’ representative or by the person accused, as the case may be; and
(b) to be an acknowledgment of the receipt by that power, representative or person on a specified day of a notice described therein as a notice under this section, shall, unless the contrary is shown, be sufficient evidence that the notice required by subsection (1) was served on that power, representative or person on that day.
(4) In this section, the expression “prisoners’ representative” in relation to a particular protected prisoner of war at a particular time means the person by whom the functions of prisoners’ representative within the meaning of article 79 of the convention set out in the Third Schedule were exercisable in relation to that prisoner at the camp or place at which that prisoner was, at or last before that time, detained as a protected prisoner of war.
(5) Any court which adjourns a trial for the purpose of enabling the requirements of this section to be complied with may, notwithstanding anything in any other written law, remand the accused for the period of the adjournment.
Legal representation of certain persons
(1) The court before which—
(a) any person is brought up for trial for an offence under section 3; or
(b) a protected prisoner of war is brought up for trial for any offence,
shall not proceed with the trial unless—
(i) the accused is represented by counsel; and
(ii) it is proved to the satisfaction of the court that a period of not less than fourteen days has elapsed since instructions for the representation of the accused at the trial were first given to the counsel, and if the court adjourns the trial for the purpose of enabling the requirements of this subsection to be complied with, then, notwithstanding anything in any other written law, the court may remand the accused for the period of the adjournment.
(2) Where the accused is a protected prisoner of war, in the absence of counsel accepted by the accused as representing him, counsel instructed for the purpose on behalf of the protecting power shall, without prejudice to the requirements of subparagraph (1)(ii), be regarded for the purposes of that subsection as representing the accused.
(3) If the court adjourns the trial in pursuance of subsection (1) by reason that the accused is not represented by counsel, the court shall direct that a counsel be assigned to watch over the interests of the accused at any further proceedings in connection with the offence, and at any such further proceedings, in the absence of counsel either accepted by the accused as representing him or instructed as mentioned in subsection (2), counsel assigned in pursuance of this subsection shall, without prejudice to the requirement of subparagraph (1)(ii), be regarded for the purposes of that subsection as representing the accused.
(4) Counsel shall be assigned in pursuance of subsection (3) in such manner as the Minister may by order prescribe, and any counsel so assigned shall be entitled to be paid out of moneys provided by such sums in respect of fees and disbursements as the Minister may by regulations prescribe.
Appeals by protected persons
(1) Where a protected prisoner of war or a protected internee has been convicted and sentenced to death or to imprisonment for a term of two years or more, he may appeal against such conviction and sentence imposed upon him, and the time within which he must give notice of appeal shall, notwithstanding anything in the written law relating to such appeals, be the period from the date of his conviction or, in the case of an appeal against sentence, of his sentence to the expiration of ten days after the date on which he receives a notice given—
(a) in the case of a protected prisoner of war by an officer of the Armed Forces of Malaysia;
(b) in the case of a protected internee, by or on behalf of the governor of the prison in which he is confined,
that the protecting power has been notified of his conviction and sentence; and in a case to which the foregoing provisions of this subsection apply, a reference to the period aforesaid shall be
substituted for any reference to the period of fourteen days after the date of such decision in subsection 51(1) of the Courts of Judicature Act 1964 [Act 91].
(2) (Omitted).
Reduction of sentence and custody of protected persons
(1) It shall be lawful for the Minister in any case in which a protected prisoner of war or a protected internee is convicted of an offence and sentenced to a term of imprisonment, to direct that there shall be deducted from that term a period not exceeding the period, if any, during which that person was in custody in connection with that offence, either on remand or after committal for trial (including the period of the trial), before the sentence began, or is deemed to have begun, to run.
(2) It shall be lawful for the Minister in a case where he is satisfied that a protected prisoner of war accused of an offence has been in custody in connection with that offence, either on remand or after committal for trial (including the period of the trial), for an aggregate period of not less than three months, to direct that the prisoner shall be transferred from that custody to the custody of an officer of the Armed Forces of Malaysia and thereafter remain in military custody at a camp or place in which protected prisoners of war are detained, and be brought before the court at the time appointed by the remand or acquittal order.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
