Gopal Sri Ram JCA:

[1] This is an application under s 30(1) of the Courts of Judicature Act 1964. That section reads as follows.

30(1) Where in any proceedings in any subordinate court any question arises as to the effect of any provision of the Constitution the presiding officer of the court may stay the proceedings and may transmit the record thereof to the High court.

(2) Any record of proceedings transmitted to the High court under this section shall be examined by a Judge of the court and where the Judge considers that the decision of a question as to the effect of a provision of the Constitution is necessary for the determination of the proceedings he shall deal with the case in accordance with s 48 as if it were a case before him in the original jurisdiction of the High court in which the question had arisen.

(3) Subsections (1) and (2) shall be deemed to be rules of court for the art 128(2) of the Constitution.

[2] The matter arose in the following way

[3] The applicant, Repco Holdings Bhd ('Repco') is a public limited company. Its shares are freely traded in the Kuala Lumpur Stock Exchange. On 27 January 1996, Repco issued a statement to the Kuala Lumpur Stock Exchange. The statement contained certain facts which the Securities Commission considered to contravene s 86 of the Securities Industry Act 1983 ('the SIA'). So it took steps to institute proceedings against Repco. On 21 October 1996 it applied for and obtained a summons from the Sessions court in Kuala Lumpur against Repco. The charge annexed to the summons refers to Repco's statement I spoke of a moment ago and alleges an infringement of s 86 of the SIA and punishable under s 91 thereof.

[4] The summons was returnable on 29 November 1996. Repco appeared before the Sessions court on that day. The Sessions court then fixed the case for hearing on 25 August 1997. On that date counsel who appeared for Repco took a preliminary objection to the locus standi of the two officers who appeared to prosecute the case. These two officers were Ms Foo Lee Mei and Ms Seow Siew Mei. They were officers of the Securities Commission, a body created by the Securities Commission Act 1993 ('the SCA'). The prosecution of the case against Repco was in the hands of these two officers pursuant to the joint operation of s 126(2) of the SIA and s 39(2) of the SCA. For completeness, I will reproduce both these sections in full.

[5] First, s 126 of the SIA. It reads:

126(1) No prosecution for any offence under this Act shall be instituted except with the consent in writing of the Public Prosecutor.

(2) A prosecution for any offence against any provision of this Act may be conducted by the Registrar or by any officer authorised in writing by the Registrar or by any officer authorised in writing by the Chairman of the Commission.

[6] Second, s 39(2) of the SCA which reads:

39(1) No prosecution for any offence under this Act shall be instituted except with the consent in writing of the Public Prosecutor.

(2) Any officer of the Commission authorised in writing by the Chairman may conduct any prosecution of any offence under this Act.

[7] So far as sub-section (1) of each of the foregoing sections are concerned, they make it clear that the institution of a prosecution under each enactment shall be only with the consent of the Public Prosecutor. The importance of this will appear later in this judgment. However, as may be noted, sub-section (2) of each of the aforesaid sections vests the conduct of prosecutions under each enactment in the hands of persons other than the Public Prosecutor.

[8] Accordingly, before the Sessions court, counsel for Repco took the point that the two ladies I mentioned earlier had no locus standi to conduct the prosecution in this particular case. It was argued that both s 126(2) of the SIA and s 39(2) of the SCA were ultra viresart 145(3) of the Federal Constitution and were void to that extent. The Sessions Judge, faced with the constitutional argument, acted under s 30 of