JUDGMENT

Richard Malanjum CJ (Sabah & Sarawak):

(1) On 10 February 2011 we heard the application by the applicant under encl. (19 (a)). After hearing the respective submissions of learned counsel for the parties, we dismissed the application. We indicated that we would give our reasons. We do so now.

(2) Briefly put, the applicant applied under r. 137 (the rule) of the Rules of the Federal Court 1995 (the RFC) asserting that this court has the jurisdiction to review its own decisions pursuant to the rule or its inherent powers.

(3) Learned counsel for the applicant submitted that injustice had occasioned against the applicant and as such the rule should be invoked. The basis for such contention is that this court and the courts below failed to adhere to s. 8 of the National Language Act 1963 (the Act) when they delivered their respective judgments.

(4) As such, learned counsel urged this court to invoke its power under the rule or its inherent power in order to correct the alleged injustice on the ground that the judgments were a nullity and consequently the conviction and sentence passed against the applicant should be set aside.

(5) We do not propose to regurgitate herein the facts and evidence as found during the trial of the applicant. It would suffice to state that the applicant together with another were charged for the murder of one Shaik Abdul Rub Samdani Siddiqi on 1st March 1996 at a house no. 306, Taman Desa Aman, Sungai Buloh, Selangor, an offence under s. 302 of the Penal Code and in this case the said section was read with s. 34 of the same Code.

(6) At the end of the prosecution case, the other accused was discharged and acquitted. He had since left the country, thereby making any appeal against the decision of the trial court illusory. But the defence of the applicant was called. At the end of the defence, the applicant was found guilty as charged, convicted and sentenced to death by the High Court on 15 November 2000.

(7) On appeal he was acquitted and discharged by the Court of Appeal on 12 August 2004. However the prosecutions appeal to this court was allowed on 9 September 2009 and the conviction and sentence imposed upon him by the High Court restored.

(8) It is to be noted that in his application before us the applicant did not challenge the decisions of the courts from the merit or evidential aspect. As indicated above it was solely on the allegation of failure by the courts to comply with s. 8 of the Act.

(9) At the outset of the hearing, the learned Deputy Public Prosecutor (DPP) raised to submit his preliminary objection. We heard it and allowed learned counsel for the applicant to reply.

(10) Basically the learned DPP contended that the law relating to the rule had been settled in that this court had no jurisdiction to hear the application and even if it had the application did not meet the prerequisites of the rule. He further added that s. 8 of the Act had also been settled by this court in its earlier decision. In this case learned DPP argued that such failure by the courts to comply with s. 8 of the Act did not nullify the conviction and sentence passed against the applicant.

(11) Meanwhile learned counsel for the applicant strenuously urged us to make a clear determination on the current position of the rule in view of the recent decisions of this court as well as the Court of Appeal on their lack of power or jurisdiction to review their own decisions related to the same cases despite earlier judicial pronouncements. According to him these recent judgments had caused uncertainty and confusion in the law.

(12) Learned counsel also added that as to s. 8 of the Act this court in its earlier judgment did not consider or make it clear on the application of the proviso of the section.

(13) The rule states:

Inherent powers of the Court.

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