Abdul Hamid J:

In the Court below, H Jayaraam appearing for the applicant and Noor Hamid bin Mohamed Noor for the respondents, the following judgment was delivered on 24 October 1974:

This is an application by Major Kee Peng Kwan (1) for an order of prohibition prohibiting the General Court Martial or its President or Members from proceeding with the hearing of a charge against him under s. 14 of the Malay Regiment Enactment (FMS Cap. 42); (2) for the proceedings before the General Court Martial to be stayed after the determination of this motion.

The Court is essentially concerned with prayer (1). The grounds upon which the relief is sought are as follows -

(a) The General Court Martial has no jurisdiction to hear the charge against the applicant since the Commanding Officer of the accused (applicant) has not investigated the charge and that the essential preliminary steps envisaged in s. 42(1) of the Malay Regiment Enactment have not been complied with;

(b) Rule 36(b) of the Rules of Procedure (Army) 1956 which permits the Convening Officer to direct the General Court Martial to proceed with the hearing of the charge despite its finding of no jurisdiction is ultra vires and unconstitutional;

(c) There is an error on the face of the direction given by the Convening Officer to the General Court Martial, and the said direction cannot confer jurisdiction on the General Court Martial having held that it has no jurisdiction; and

(d) Any finding that the General Court Martial may make after the hearing of the charge will be null and void and of no effect.

Ground (d) is merely consequential. It would only arise if this Court should rule that the General Court Martial had no jurisdiction to hear the charge against the applicant.

The applicant affirmed an affidavit to the effect that he was brought before the General Court Martial on 29 January 1973 to be tried for fraudulent misapplication of public property under s. 14 of the Malay Regiment Enactment. At the trial Counsel appearing for the applicant offered a plea to the jurisdiction and evidence was adduced to show that s. 42(1) of the Malay Regiment Enactment had not been complied with. The applicant alleged that the person who investigated the offence was not his Commanding Officer.

The General Court Martial allowed the defence plea of jurisdiction and acting under r. 36(2) of the Rules of Procedure (Army) 1956. The General Court Martial adjourned and reported its finding to Col Abul 'As bin Ismail, Commander of the Kuala Lumpur Garrison (who I shall call "the Convening Officer"), who convened the Court martial. The Convening Officer disapproved the finding of the Court martial and directed the General Court Martial to proceed with the trial acting under r. 36(3)(b).

The applicant alleged that this rule was ultra vires and unconstitutional. He further alleged that there was an error on the face of the direction and the Convening Officer could not confer jurisdiction on the tribunal when it had no jurisdiction. At the hearing before me Mr. Jayaram Counsel for the applicant submitted that Major Idrus was not the Commanding Officer and he had no power to investigate and that he had not in fact investigated. He further submitted that even if he had the power to investigate he had not the power to delegate. It was the applicant's case that when the investigation started which was on 7 February 1972 the applicant was not attached or posted to Camp Ministry of Defence.

Encik Noor Hamid bin Mohd Noor for the respondents argued that the investigation was made pursuant to r. 7 of the Rules of Procedure and this rule was complied with. He further argued that there was no requirement that the abstract of evidence be taken by the Commanding Officer. It could be effected by any officer attached to the unit of the Commanding Officer and that in the instant case Major Hasbullah yvas properly directed by Major Idrus the Commanding Officer.

Counsel for the applicant referred t