The court affirmed the registrar's jurisdiction to hear creditor's petitions, emphasizing the importance of separating judicial powers while recognizing statutory compliance with constitutional provisions.

[1] This is my judgment in respect of the appeal by the judgment debtor to set aside the adjudicating and receiving order dated 22 October 2008 which was dismissed by the learned senior assistant registrar.

[2] Lead counsel for the appellant, Encik Abdul Razak bin Hashim had placed an expressive submission in respect of jurisdiction to say that the jurisdiction or power vested in the senior assistant registrar or deputy registrar (registrar) to hear the creditor's petition in bankruptcy proceedings is ultra vires the Federal Constitution . And asserts that the vests the judicial power of the High Court, in the High Court Judges and Judicial Commissioners and in consequence only a judge of the High Court or a Judicial Commissioner may hear a petition in the High Court. And relies on art. 122AA , 122AB , 123 and 125 of the , to say that Judges and Judicial Commissioners are part of the judiciary and have been afforded special protection to ensure their independence; whereas registrars are appointed under s. 10(1) of the Courts of Judicature Act 1964 (CJA 1964) . And s. 10(3) of the CJA 1964 provides for the jurisdiction, powers and duties of registrars. And subsection 3 provides that the registrar shall, subject to this act or any other written law have the same jurisdiction, powers and duties as the masters of the supreme Court, clerks of criminal courts, registrars and like officers in the supreme Court of judicature in England and, in addition, such further jurisdiction, powers and duties as may be prescribed by rules of Court. And with regard to the issue of a registrar hearing creditor's petition the Bankruptcy Rules 1969 (BR 1969), r. 5 provides that "unless the Chief Justice has given a general or special direction to the contrary: (a) every application before the registrar shall, and every application before the judge may, be heard in chambers; and (b) the jurisdiction of the Court to hear and determine any matter or application may be exercised by the registrar.

In essence the learned counsel says that s. 10(3) CJA 1964 and/or s. 90 of the Bankruptcy Act 1967 (BA 1967) and/or r. 5 of the BR 1969 which purport to vest jurisdiction or power in the registrar, to hear creditor's petition in bankruptcy proceedings is ultra vires the Federal Constitution .

[3] In addition says that s. 90 of BA 1967 and r. 5 of BR 1969 are ultra vires the CJA 1964 , taking into consideration s. 4 of CJA 1964 which states that:

In the event of inconsistency or conflict between this Act and any other written law other than the Constitution in force at the commencement of this Act, the provisions of this Act shall prevail.

And asserts that the supreme law of the land is the Federal Constitution and any statute which is inconsistent with the , would be ultra vires the constitution and consequently invalid. And also asserts that CJA 1964 enjoys a special position, in that, the CJA 1964 will prevail over any other Act inconsistent with it, except the .

Judgment Debtor's Submission

[4] And the learned counsel submission can be summarised as follows:

(a) The scheme of the Federal Constitution is that there is a separation of powers. The doctrine of separation of powers is an essential feature of the .

(b) The Court of Appeal in Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah & Anor & Another Appeal, , through Gopal Sri Ram JCA (as he then was) said "the Federal Constitution has entrusted to an independent judiciary the task of interpreting the supreme law