AUG 15 — In the case of Karpal Singh & Anor v Public Prosecutor [1991], one Karpal Singh and one P. Patto (the applicants) were charged in the magistrates court with separate offences under the Police Act 1967.
The former was charged with having participated in an assembly in a public place without a licence from the officer in charge of the police district while the latter was charged with convening the assembly without a licence.
The applicants raised a preliminary objection contending that the proceedings against them amounted to oppression and that the court had a general and inherent power to protect its process from abuse and to strike out the proceeding.
The magistrate rejected the preliminary objection. On application for revision to the High Court, the same was also rejected.
By way of a reference under Section 66 of the Courts of Judicature Act 1964 (CJA) pursuant to leave granted to the applicants, the applicants referred the following question of law for the consideration by the then Supreme Court:
“Whether the court has a general inherent power to protect its process from abuse to safeguard an accused person from oppressing or prejudice by striking out frivolous proceedings.”
The then Supreme Court held that by virtue of Section 173 of Criminal Procedure Code (CPC) the subordinate courts had no power to strike out proceedings or acquit an accused person without hearing evidence for the prosecution.
However, it was further held that if any party feels that the charge and consequent proceedings were illegal on the face of the record, his remedy was to take up appropriate proceedings before the High Court to quash the charge.
In 2014, in the case of Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor, the Federal Court referred to above case and ruled that it had no issue with the pronouncement made by the then Supreme Court that a magistrate or a sessions court judge in a summary trial had no power to acquit and discharge an accused person without hearing evidence from the prosecution.
However, on the issue whether the High Court had inherent power to strike out a charge or charges preferred by the public prosecutor on the application by an accused person, the apex court – through President of Court of Appeal Raus Sharif (as he then was) who delivered the judgment – came out strongly with the following observations:
“Lately there has been a growing trend for accused to apply to the High Court by way of a notice of motion to strike out a charge or charges preferred against them by the public prosecutor at the subordinate court relying on Karpal Singh & Anor v Public Prosecutor as the authority. This has resulted in considerable delay in criminal prosecution before the subordinate courts.”
According to the learned President, historically the doctrine of inherent power which allowed the High Court to prevent an oppressive and mala fide prosecution, abuse of process and to do wrong in the administration of justice had its origin in the English common law.
Such doctrine could be traced in the English cases of Metropolitan Bank Ltd & Anor v Pooley [1881-1885] and Connelly v Director of Public Prosecutions [1964] and Mills v Cooper [1967].
In Connelly, Lord Morris said:
“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.
“I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”
While the Federal Court accepted the principles enunciated in the above cases as “the correct statement of the law”, the apex court cautioned itself that the inherent powers of the court must be exercised only in exceptional circumstances to prevent undue oppression and abuse of the process of the court.
The apex court further reminded the courts that the inherent jurisdiction of the court sprang not from legislation but from the nature and constitution of the court as a dispenser of justice.
The learned President hastened to add that “the inherent jurisdiction of the court is therefore not as wide as it seems to be. Much depends on the facts and circumstances and clearly the court cannot exercise its inherent jurisdiction in respect of any matter covered by specific provisions of the law or if its exercise would infringe any specific provisions of the law.”
His Lordship then referred to the decision of the Supreme Court of India in the case of Arun Shankar Shukla v State of UP (1999) where the Indian apex court in addressing the inherent powers of the High Court, statutorily envisaged under Section 482 of the Indian Criminal Procedure Code, observed as follows:
“It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice.
“But the expression abuse of the process of law or to secure the ends of justice do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise.
“Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provisions of the Code.”
Even the Supreme Court in Karpal Singh cautioned the courts of the constitutional consequences of relying on the English concept of common law (one of which is the concept of inherent jurisdiction of the courts). In that case, Lord President Abdul Hamid Omar said:
“Perhaps it is appropriate that we now pause to consider the constitutional consequences of [relying] on the English common law concept. Unlike UK, the Constitution of the Federation which is a written law is specifically declared to be the supreme law of the land. Also, it is to be noted that UK has no criminal procedure code as enacted by our legislature.
“[We] wish to refer to Art 145(3) of the Constitution which states that the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before Syariah Court etc.
“The discretion vested in the Attorney General is unfettered and cannot be challenged and substituted by that of the courts. The reasoning and logic behind such contention is well illustrated in the case of Public Prosecutor v Lee Tin Bau [1985], Long bin Samat & Ors v Public Prosecutor [1974], Public Prosecutor v Datuk Harun bin Haji Idris and Ors [1976] and Poh Cho Ching v Public Prosecutor [1982].”
The Malaysian courts must also consider the effect of Section 5 of the CPC which provides for English law relating to criminal procedure to be applied when there does not exist any special provision on the matter either in the CPC or any other existing circumstances.
Accordingly, while there can be no doubt that the High Court has the inherent jurisdiction to set aside and quash a charge which is oppressive and an abuse of the process of the court, the court will only exercise its inherent power when there is miscarriage of justice.
Needless to say, the jurisdiction is to be exercised with the greatest of caution.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
