Arifin Zakaria, FCJ.

JUDGMENT

I agree with the learned CJ that this application ought to be dismissed for the reasons given by him. In this regard I am of the opinion that it is necessarily for us to consider the purpose and scope of the Rules of the Federal Court 1995 (RFC)s. 16Courts of Judicature Act 1964 (CJA)s. 17CJADato’ Mohamed Hashim Shamsuddin v. Attorney General, Hong Kong Barraaclough v. Brown Attorney General v. Sillem

“A power to regulate the practice of a court does not involve or imply any power to alter the extent or nature of the jurisdiction.”

Similarly in Dato’ Mohamed Hashim Shamsuddin (supra) Abdoolkader SCJ in relation to s. 16 CJA at pg. 123 expressed the view that:

“This legislative provision clearly relates to a matter of practice and procedure with no question arising of creating or altering substantive rights or of any rules made pursuant thereto purporting per se to confer jurisdiction where none existed otherwise, and it is this specific enactment in the 1964 Act that enables the necessary rules to be spelt out to regulate the procedure for the purposes specified therein.”

(See also R. Rama Chandran v. The Industrial Court of Malaysia & Anor

Therefore, it will be ultra vires the powers of the Rules Committee to attempt to confer on the Federal Court the power to deal with a matter which is outside its jurisdiction. The rule must strictly be confined to procedural matter only.

It is in the light of the above considerations that Rule 137 ought to be construed. The said Rule provides:

“137. For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or effect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

The Rule merely declares “…. that nothing in these Rules shall be deemed to limit or alter the inherent powers of the Court ….”.

The word “Court” here is defined as the Federal Court (Rule 2). Thus the Rule does not confer an inherent power, it merely declares that the Court has such a power. For the present purpose, I will not go into the issue whether there exist such an inherent power as declared by Rule 137.

Rule 137 merely stipulates that no provision of the RFC should be construed as to limit or affect the inherent powers of the Court namely – (a) to prevent injustice or (b) to prevent an abuse of the process of the Court. In my opinion it is abundantly clear that Rule 137 is directed at the provisions of the RFC. It could not have been intended to override the provision of the Federal Constitution or any other written law. Therefore, when s. 96(a)CJAs. 87CJA

How do we then reconcile the decision of this Court in Tan Sri Eric Chia Eng Hock v. P.P. (No. 1)

The answer to this is found in the judgment of the learned CJ in this present case. After considering the judgments of both Augustine Paul, FCJ and Richard Malanjum, CJ (S&S), I agree with the learned CJ that the judgments were flawed. Quite apart from what I stated above, I agree entirely with the reasons given by the learned CJ.

I must add that at the highest the matter should have ended at the Court of Appeal, as the learned High Court Judge in that case was exercising his revisionary power. As rightly stated by Richard Malanjum, CJ (S&S) the exercise of revisionary power by the High Court Judge is not in law an exercise of his original jurisdiction. Therefore, on that ground the matter could not have proceeded by way of appeal to the Federal Court. Similarly it could not come to this court by way of a review under Rule 137.

Bearing in mind that the matter under challenged was the exercise of a revisionary power under s. 323Criminal Procedure Code

On the revisionary power of the High Court it is correct that this power of the High Court is exercisable at the discretion of the court and the discretion is untrammelled and free, so as to be exercised fairly according to the exigencies of each c