Introduction
In Malaysia, the concept of inherent jurisdiction, or inherent power, is not a faculty bestowed by statutory enactment but rather an inherent attribute stemming from the fundamental nature of a court, which empowers it to redress injustices and ensure the administration of justice. Consequently, while it remains indisputable that the High Court possesses inherent jurisdiction to invalidate and dismiss charges that manifest oppression and constitute an abuse of the court’s processes, the court will only exercise its inherent authority in instances where a miscarriage of justice is unmistakable.
The core inquiry revolves around whether a High Court in Malaya possesses the capacity to sustain the proceedings of a case, even after the defendant has been discharged or acquitted by the Attorney General Chambers, particularly in light of the recent discharge of a prominent political figure. This necessitates an examination of the powers vested in the Attorney General.
Categories of powers exercised by common law courts.
There are few categories of court’s power. The distinction between inherent jurisdiction, inherent powers and implied powers is important. Briefly put, the inherent jurisdiction of courts refers to a species of jurisdiction inherent in superior common law courts of unlimited jurisdiction1. In Australia, only superior courts in the states meet this description and therefore enjoy true inherent jurisdiction. While ‘jurisdiction’ refers to a court’s authority to decide certain matters, the term ‘inherent powers’ describes what the court may do in the exercise of this jurisdiction2. Finally, the term ‘implied powers’ refers to a set of powers exercisable by courts other than superior courts of unlimited jurisdiction. These powers are implied from the statutes that provide for the particular court and its jurisdiction, and are in many ways akin to the inherent powers of superior courts of unlimited jurisdiction3.
Amendment of Article 121 of the Federal Constitution: Effect of the removal of court’s power during the judicial crisis.
Could the judicial crisis remove the inherent power of the courts to hear cases discontinued by the Attorney General? In relation to the court’s inherent power, the government response to a court decision that deemed a particular law unconstitutional, the government, utilizing its significant parliamentary majority, proposed amendments to Article 121 of the Federal Constitution. These amendments removed references to judicial power vested in the courts and limited the jurisdiction of civil courts over Islamic law. The changes were a direct reaction to a Supreme Court ruling in Public Prosecutor v Yap Peng 4[1987] 2 MLJ 311, where a section of the Criminal Procedure Code was declared unconstitutional.
The controversial amendment aimed to constrain the judiciary to the interpretation of legislation enacted by the legislature. The revised provision stated that courts would possess jurisdiction and powers conferred by or under federal law, omitting any reference to the vesting of judicial power. The alterations raised concerns about a shift in the Constitution’s fundamental principles, prompting the perception that the government sought to undermine the judiciary’s independence and viewed it as a potential obstacle to government actions.
The government’s intention in amending art 121 of the Federal Constitution was to ensure that courts do no more than interpret legislation passed by the legislature. Henceforth, under the new provision, courts will only have ‘such jurisdiction and powers as may be conferred by or under federal law’. The reference to the vesting of judicial power disappeared altogether from art 121. So where does judicial power now lie? No one clearly knows.
Decisions in the Malaysian courts defining the powers of the courts and the Attorney General.
In the landmark legal matter, Karpal Singh & Anor v Public Prosecutor5 [1991] 2 MLJ 544, the litigants, specifically Karpal Singh and P. Patto (hereinafter referred to as “the applicants”), found themselves arraigned separately in the magistrates court on divergent charges stemming from violations of the Police Act 1967. To elucidate, Karpal Singh was accused of participating in a public assembly within a designated public venue as the requisite licensing as mandated by the overseeing police district officer. Conversely, P. Patto faced charges related to the orchestration of said assembly in the absence of a valid license.
The applicants, motivated by a perceived infringement of their rights, proffered a preliminary objection. Central to this objection was the assertion that the instituted legal proceedings were inherently oppressive. They posited that the court, vested with a general and intrinsic authority, was equipped to safeguard its procedural integrity against instances of abuse, hence, justifying the termination of the proceedings in question. Regrettably, the magistrate summarily dismissed the preliminary objection. Subsequently, upon seeking redress by way of a revision application before the High Court, the applicants encountered a parallel adjudicative outcome.
Following the issuance of leave to the applicants, they invoked Section 66 of the Courts of Judicature Act 1964 (CJA), initiating a reference mechanism which propelled the pertinent question to the then Supreme Court. This seminal query inquired whether the court, in pursuit of the overarching objective to shield an accused individual from undue oppression or prejudicial proceedings, wielded an inherent and all-encompassing authority to expunge baseless charges.
The ensuing pronouncement by the Supreme Court stipulated that subordinate judicial fora, in alignment with the statutory dictate within Section 173 of the Criminal Procedure Code (CPC), lacked the prerogative to summarily dismiss legal proceedings or acquit an accused without affording the prosecution a due opportunity to adduce evidentiary support. However, the Supreme Court underscored the avenue available to litigants who perceived legal infirmities in the charges and associated proceedings, namely, the initiation of legal recourse in the High Court to challenge the charges on legal grounds.
In 2014, within the ambit of the legal discourse embodied by Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor [2014] 6 MLJ 8316 , the Federal Court revisited the jurisprudential doctrines instilled by the Karpal Singh precedent. The Federal Court, while endorsing the prevailing jurisprudential consensus that magistrates and sessions court judges presiding over summary trials were divested of the authority to absolve an accused party without prior consideration of the prosecution’s evidentiary submissions, took a categorical stance regarding the High Court’s inherent jurisdiction to expunge charges pursuant to an entreaty by an accused individual.
The Federal Court, as articulated by President of the Court of Appeal Raus Sharif, voiced pronounced reservations regarding the burgeoning trend of accused individuals invoking the Karpal Singh precedent as the legal basis for seeking the expungement of charges through applications before the High Court. This emergent practice had engendered significant delays in the adjudication of criminal cases within subordinate courts. President Raus Sharif underscored the historical underpinnings of the doctrine of inherent jurisdiction, deeply rooted in English common law, which chiefly sought to forestall oppressive and mala fide prosecutions and preserve the sanctity of the judicial process.
Although the Federal Court acknowledged the applicability of principles enunciated in English legal precedents such as Metropolitan Bank Ltd & Anor v Pooley7[1881] ALLERREP 949, Connelly v Director of Public Prosecutions8 [1964] 2 All ER 401, and Mills v Cooper9 [1967] 2 All ER 100, it exercised judicious restraint by emphasizing the necessity for the judicious application of inherent powers solely in exceptional circumstances, where the risk of undue oppression and process abuse was apparent. The apex court cautioned that the inherent jurisdiction of the court derived not from statutory enactment but from the intrinsic character and constitution of the court as a dispenser of justice.
President Raus Sharif further qualified that the exercise of inherent jurisdiction was not unbridled in its scope. Its application was contingent upon the specific facts and circumstances of each case, and it could not be invoked to supersede provisions of the law explicitly addressing a given matter or that would contravene established legal provisions.
In reference to the Supreme Court of India’s decision in Arun Shankar Shukla v State of UP10 [1999] Cr_LJ 3964, President Raus Sharif delineated the limitations inherent in the exercise of inherent powers, noting that such powers must be deployed sparingly, guided by the objective specified in Section 482 of the Indian Criminal Procedure Code. This deployment was permissible only in situations where no express provision existed to address the matter at hand within the statutory framework.
Furthermore, even in the precedent set by the Supreme Court of Malaysia in Karpal Singh, a degree of caution was exercised, underscoring the constitutional implications of importing the English common law concept, notably the concept of inherent jurisdiction of the courts. This caution was underscored by Lord President Abdul Hamid Omar, who highlighted the supremacy of the Malaysian Constitution as the supreme law of the land.
It was emphasized that the discretion vested in the Attorney General, as prescribed in Article 145(3) of the Constitution, is immune to challenge or substitution by the courts. This position was reinforced by legal precedents such as Public Prosecutor v Lee Tin Bau11 (1985) 1 MLJ 388, Long bin Samat & Ors v Public Prosecutor12 (1974), Public Prosecutor v Datuk Harun bin Haji Idris and Ors13 (1976) 2 MLJ 116, and Poh Cho Ching v Public Prosecutor14 (1982) MLJ 86. Since the powers vested upon the AG that cannot be challenged then, the courts are supposed to be powerless to resume hearing of cases that are discontinued.
Besides, the Federal Constitution does not grant higher courts the authority to proceed with cases dropped by the Attorney General Chambers, leaving no room for debate on the courts’ ability to revive such cases. As mentioned earlier, the court’s power has been reduced with the amendment of Art 121 of the Federal Constitution and hence the power to rehear cases dropped by the AG has been clear and unequivocal. In relation to discontinue hearing of cases, the Attorney General in the United Kingdom has similar power to discontinue cases that are being heard under TWO circumstances as discussed below.
What is the United Kingdom position on the power of the Attorney General to discontinue cases that are still being heard.
In the United Kingdom, the question whether or not to prosecute is for the prosecutor, not the court: Environment Agency v Stanford15 [1998] 6 WLUK 534, per Lord Bingham LCJ. However, the courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent, exceptional power to ‘stay’ an indictment (or stop a prosecution in the magistrates’ court), if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court.
The court may do so if either of the following apply, and the court must consider each as a separate question, see Connelly v DPP16 [1964] AC 1254 HL, and DPP v Humphrys17 [1977] AC 1 HL:
- Is it impossible for the defendant to have a fair trial? – The first ground for abuse of process, “right to a fair trial”.
- Is a stay of proceedings necessary to protect the integrity of the criminal justice system? -The second ground, “integrity of the justice system”. It goes without saying that the invocation of this authority must be undertaken with the utmost caution and judiciousness.
In the United Kingdom, Sections 23 and 23A of the Prosecution of Offences Act 1985 grant prosecutors the authority to discontinue legal proceedings without court approval. Discontinuance avoids court hearings and unnecessary attendance, allowing immediate release of a detained defendant. Discontinuance is preferred, especially when intending to terminate entire proceedings. However, it may not be suitable for selectively terminating charges, as partial discontinuance can cause confusion. If a charge is replaced, offering no evidence on the original charge doesn’t trigger double jeopardy. Double jeopardy applies only when the same offense is charged based on the same facts, as established in R v JFJ18 [2013] EWCA Crim 569.
The recent discharge of Zahid from numerous charges has raised questions about whether the Attorney General followed proper procedures. In the UK, the court may consider two key factors when deciding whether to discontinue legal proceedings: (1) whether it’s impossible for the defendant to have a fair trial, which is the first ground for abuse of process, often tied to the “right to a fair trial,” and (2) whether a stay of proceedings is necessary to protect the integrity of the criminal justice system, which constitutes the second ground, often linked to the “integrity of the justice system.” Notably, invoking this authority should be approached with extreme caution and judiciousness, as seen in cases like Connelly v DPP [1964] AC 1254 HL and DPP v Humphrys [1977] AC 1 HL.
In conclusion, Zahid’s discharge raises concerns about whether the legal procedures followed are in line with principles applied in the UK, where discontinuing proceedings is considered based on the defendant’s right to a fair trial and the integrity of the justice system, requiring careful consideration and prudent use of this authority.
The Malaysian high courts lack the inherent prerogative to continue the adjudication of cases that have been terminated by the Attorney General Chambers other than nullifying charges that are deemed oppressive and indicative of a misuse of the court’s procedures, and its exercise is contingent upon the unequivocal presence of a pronounced miscarriage of justice.
It was explicitly underscored that the Attorney General’s discretion, as delineated in Article 145(3) of the Constitution, is impervious to judicial challenge or replacement.
- NH v DPP (SA) [2016] HCA 33; (2016) 260 CLR 546 (‘NH’); PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1, 17 [37] (French CJ, Kiefel, Bell, Gageler and Gordon JJ) (‘PT Bayan Resources’).
- Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268, 280 [36] (French CJ) (‘Keramianakis’).
- Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power, and Implied Guarantees under Chapter III of the Constitution’ [2003] FedLawRw 2; (2003) 31(1) Federal Law Review 57, 67–70.
- [1987] 2 MLJ 311
- [1991] 2 MLJ 544
- [2014] 6 MLJ 831
- [1881] ALLERREP 949
- [1964] 2 All ER 401
- [1967] 2 All ER 100
- [1999] Cr_LJ 3964
- (1985) 1 MLJ 388
- [1974] 2 MLJ
- (1976) 2 MLJ 116
- (1982) MLJ 86
- [1998] 6 WLUK 534
- [1964] AC 1254 HL
- [1977] AC 1 HL
- [2013] EWCA Crim 569
Written By: Pupil-in-Chamber Daniel Chong
LL.B (Hons) (London and IIUM), LL.M (London), Master of Edu (Asia e University)
Paul Cheah Associates.
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