Lord Fraser of Tullybelton:

The facts in this case are not in dispute. The appellant is an officer serving in the Malaysian army. The respondents are the members of a general Court-martial before which the appellant was brought on 16 February 1976 to be tried on three charges of forgery and other forms of dishonest conduct. When the Court-martial assembled, the oath was administered to the president and each member of the Court and to the Judge Advocate. It was administered in the prescribed form and manner, and at the prescribed time. But it was administered by a full time salaried Islamic religious teacher, known as the Tuan Guru, employed by the armed forces and attached to the appellant's unit, instead of by the Judge Advocate as prescribed by the Rules of Procedure. The appellant and his Counsel were present when the oath was administered, but they took no objection at the time to its being administered by the Tuan Guru. On the fourth day of the hearing, the appellant's Counsel discharged himself and the trial was adjourned. When the trial resumed on 1 March 1976, the different Counsel who then appeared on behalf of the appellant objected to the jurisdiction of the Court on the ground that the Court had not been properly constituted because the members had not been validly sworn in.

The sole question in the appeal is whether the fact, which is admitted, that the oath was not administered by the person prescribed in the Rules of Procedure rendered the Court-martial improperly constituted, with the consequence that it had no jurisdiction to try the appellant. The trial Judge (Harun J), answered that question in the affirmative and made an order of prohibition, prohibiting the Court-martial from proceeding with hearing the charge against the appellant. The Federal Court (Suffian LP, Gill CJ Malaya and Raja Azlan Shah FJ) reversed the learned Judge's decision and answered the question in the negative.

The statutory basis for Court-martial in Malaysia is the Malay Regiment Enactment (FMS. Cap. 42) ("the Enactment"). Section 44 makes general provision for convening Courts- Martial, and no question arises under that section. Section 44A(i) provides that the provisions of the Army Act 1955 of the United Kingdom ("the UK Act") specified in the Third Schedule to the Enactment shall be applicable to Court-martial convened under s. 44 in Malaysia, subject to certain modifications specified in the Third Schedule none of which is material for the present purpose. Among the provisions of the UK Act thus made applicable in Malaysia is 93 which is in the following terms:

93. (1) An oath shall be administered to every member of a Court-martial and to any person in attendance on a Court-martial as Judge Advocate, officer under instruction, shorthand writer or interpreter.

(2) Every witness before a Court-martial shall be examined on oath: Provided ... [there follows a provision relating to children called as witnesses].

(3) An oath required to be administered under this section shall be in the prescribed form and shall be administered at the prescribed time by the prescribed person and in the prescribed manner.

"Prescribed" means provided for by Rules of Procedure - see the s. 103(2)(m).

The relevant Rules of Procedure are rr. 28, 29 and 34 which are as follows:

28.- (1) Immediately after r. 27 has been complied with, an oath shall be administered to the president and each member of the Court in accordance with r. 34 and in the presence of the accused.

(2) If there is a Judge Advocate, the oath shall be administered by him to the president first and afterwards to each member of the Court. If there is no Judge Advocate, the oath shall be first administered by the president to the members of the Court and then to the president by any member of the Court already sworn.

(Emphasis is added)

29. After the Court have been sworn, an oath shall be administered to the Judge Advocate (if any) in accordance with r. 34 and in the presence of t