In these three separate criminal applications for various orders, the learned deputy public prosecutor has raised a novel but fundamentally important question of law which has widespread and far-reaching implications in the administration of criminal justice in our country. As the question of law raised in these applications is identical, I have set out all the grounds and conclusions which shall apply to and bind all the parties herein.

The respective affidavits in support of these applications have been affirmed before a Commissioner for Oaths. The learned deputy has raised a preliminary objection on the ground that the respective affidavits have not been affirmed before a magistrate or registrar and that being the case, the applicants have failed to comply with the provisions of s 424(1)(a) of the Criminal Procedure Code (FMS Cap 6) (the CPC), with the result that the affidavits cannot be used in a criminal court.

The question of law for determination by the court may be formulated as follows:

Whether the provisions of s 424(1)(a) of the CPC prohibit or exclude

the use of an affidavit in a criminal court if such an affidavit is

sworn in the Federation before a Commissioner for Oaths and not before

a magistrate or registrar?

It is the contention of the learned deputy that s 424(1)(a) would only admit an affidavit which is sworn in the Federation before any magistrate or registrar, as a result of which an affidavit which is sworn, as in the instant case, before a Commissioner for Oaths in the Federation, cannot be used in a criminal court.

It is the unanimous view of all learned counsel for the respective applicants herein that under the provisions of s 424(1)(a), in addition to the use, in a criminal court, of an affidavit sworn in the Federation before any magistrate or registrar, an affidavit which is sworn in the Federation before a Commissioner for Oaths may be used in a criminal court because s 424(1)(a) does not prohibit or exclude the use of such an affidavit.

Section 424(1)(a) reads as follows:

(1) Subject to any rules of court, any affidavit may be used in a

criminal court if it is sworn--

(a) in the Federation before any magistrate or registrar. (Emphasis

mine.)

In my view, s 424(1)(a) is an enabling provision under which an affidavit which is sworn in the Federation before any magistrate or registrar may be used in a criminal court. It is not intended to be an overriding, overpowering or a dominant provision, but it is specifically enacted to be subject to any rules of court. The inclusion of the phrase subject to in s 424 means that s 424 is not to be construed as an independent provision. Section 424 is not intended to stand on its own. The scope, application, operation, effect or implication of s 424(1)(a) is specifically bound by or made subservient to any rules of court so that when any rules of court are invoked in a particular instance, the rules of court will take precedence and become the dominant provision to prevail upon the provisions of s 424(1)(a), in which event s 424 will then play a secondary role or take a back seat, so to speak: see DP Vijandran v Majlis Peguam [1995] 2 MLJ 391 . Although my decision in Vijandrans case has been set aside by the Court of Appeal, the statutory interpretation in relation to the phrase subject to and its legal connotations apparently remain intact.

Stout CJ in the New Zealand case of Benge & Pratt v Guardian Assurance Co (1915) 34 NZLR 81 at p 86 held that the phrase subject to mean swallowed up or negatived by. Hence, in its application to s 424(1(a), the provisions therein are effectively negatived by any rules of court.

The learned deputy further contends that pursuant to O 1 r 2(2) of the Rules of High Court 1980 (the RHC 1980), the provisions of the RHC 1980 are expressly stated to be inoperative in relation to criminal proceedings.

All learned counsel for the respect