JUDGMENT

Abdul Malek Ahmad PCA:

Heightened by the release of the applicant by this court on sodomy charges some four days before we heard these applications, the intense speculation pertaining to the outcome of the four motions before us had certainly generated a certain amount of undue interest and unwanted publicity. This bad timing certainly would not have occurred if the first of the four motions filed on 9 August 2002, applying to set aside the convictions and sentences of the applicant on corruption charges, had been disposed of much earlier considering the lapse of twenty five months.

The first motion at encl. 80(a) filed on 9 August 2002 was for an order that the court invokes its inherent powers under r. 137 of the Rules of the Federal Court 1995 (hereinafter " the RFC " ) to set aside the convictions and sentences of the applicant that were confirmed and upheld by this court on 10 July 2002 or make such further or other orders it deemed fit and proper in the interests of justice.

The second motion at encl. 89(a) filed on 10 March 2003 was for an order that this court again invoke its inherent powers under r. 137 of the RFC to allow fresh/additional evidence affecting the trial to be adduced as such evidence was not available during the trial or make such further or other orders it deemed fit and proper in the interests of justice.

The third motion at encl. 97(a) filed on 14 March 2003 was for an order that the applicant be allowed leave to rely on five additional grounds stated therein.

The fourth motion at encl. 124(a), filed four days before the hearing, was also for an order that the applicant be allowed leave to rely on another additional ground which was that s. 94(2), including the proviso thereto, of the Courts of Judicature Act 1964 (hereinafter " the CJA " ) is unconstitutional and void and of no effect as it impinges on the judicial independence of the individual judges of the Federal Court.

I shall only deal with the jurisdiction point while the four motions will be dealt with in detail by my learned sister Siti Norma Yaakob FCJ and my learned brother Alauddin Mohd Sheriff FCJ in their separate judgments.

It is pertinent at this point to reproduce r. 137 of the RFC which reads:

137. For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect 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.

At the commencement of the proceedings, the learned Attorney General for the respondent and Karpal Singh for the applicant told the Court that both parties had agreed that arguments would begin with the preliminary objection by the respondent on the first motion. On hindsight and having heard their submissions, it was our finding that the preliminary objection was quite unnecessary as it could have easily been argued as part of the submissions on the motions themselves.

The learned Attorney General started off by stating that r. 137 of the RFC is ultra vires the CJA and the Federal Constitution (hereinafter " the FC " ). He added that this is not the first criminal review as on 10 June 2003 this court (Haidar Mohd Noor CJM, Steve Shim CJSS and Siti Norma Yaakob FCJ) had in Tunde Apatira & 2 Ors. v. Public Prosecutor in Federal Court [2001] 1 CLJ 381, dismissed a similar application.

Karpal Singh for the applicant had immediately interjected to say that there was no written judgment in that application and that this court did not in any way state that r. 137 of the RFC did not apply. The relevant order, he said, only stated that the application was dismissed. Further, the relevant newspaper report only mentioned that the court had to dismiss the application based on the fact that there has been a final decision relating to the conviction and sentence.

The learned Attorney General continued by saying that r. 137 of the RFC was created pursuant to s. 1