(oral)

Gopal Sri Ram JCA (delivering the judgment of the court):

This appeal concerns the interpretation of a rule that is no longer with us. It is r. 1A of O. 53 of the High Courts Rules 1980as it stood before the whole of that order was replaced videP.U A 342/2000 which came into force on 22 September 2000.

The factual matrix which forms the background of this appeal may be shortly stated.

The appellant was a police inspector. On 28 December 1992 he was dismissed from service. The decision dismissing him was communicated to him on 16 January 1993 but it was not until 11 February 1993 that he filed his application for leave to issue certiorarito quash the decision dismissing him. Leave was granted on 29 March 1993. However at the hearing of the substantive motion the learned federal counsel at the outset took a preliminary objection as to the jurisdiction of the court to hear the matter. The argument was that the application having been filed more than six weeks after 28 December 1992 the court had no jurisdiction to entertain the motion; that being clear from the plain words of r. 1A of the Rules of the High Court 1980.

The authority cited before the learned judge and by which he was clearly bound is Mersing Omnibus Co. Sdn Bhd v. Minister of Labour and Manpower & Anor[1983] 2 CLJ 7; [1983] CLJ (Rep) 266. The learned judge acceded to the preliminary objection; as he was obliged to. The substantive motion was dismissed in limine. The appellant now appeals to us.

The point now taken before us is that r. 1A insofar as it requires the application for leave to be made within six weeks from the date of the decision provides for an unfair procedure. In our view there is merit in this argument.

All laws enacted in the Federation of Malaysia whether by Parliament or by any inferior law making authority such as the Rules Committee acting under s. 16 of the Courts of Judicature Act 1964must accord with the Federal Constitution, the supreme law by its own declaration: see art. 4(1).

It is therefore axiomatic that no lawmaker within our shores has authority to make law which contravenes the Federal Constitution. It matters not a jot whether the law is substantive or procedural: constitutional compliance is mandatory.

Courts like any other arm of the government are similarly bound by the Constitution. But there is a difference. A decision of a court cannot be challenged on the ground that it is unconstitutional simply because it contains an error of fact or an error of law. That is because there is a self-correction process available within the justice system by means of an appeal at one or more levels. However a procedural rule of court does not enjoy the same protection.

These propositions are amply clear from the following passage in the judgment of Lord Diplock in Maharaj v. A.G. of Trinidad and Tobago (No. 2)[1979] AC 385:

In the first place, no human right or fundamental freedom recognized by Chapter 1 of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to the higher court. Where there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors as in procedure that are capable of constituting infringements of the rights protected by section 1(a); and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event.

The other authority we would refer to is Bank of America National Trust and Savings Associations v. Chai Yen[1980] 1 MLJ 198. Lord Lane delivering the judgment of the Privy