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 an