Chia Khin Sze v MB Selangor [1958] MLJ 105

Issues
Whether the Constitution gives a right to be defended by Counsel in this case?

Facts
This was a case under the Restricted Residence Enactment to be allowed representation
by counsel. Witnesses were called at an inquiry to be held under that Enactment. The
respondent in exercise of the powers in section 2(i) of the Enactment had issued a warrant
for the arrest and detention of the applicant, and he deemed a further inquiry to be
necessary. The form of the further inquiry was one to be held in camera without the
person concerned being represented by counsel.

Held
The court held that such the fundamental liberty envisaged under the Constitution
was intended to be merely declaratory of existing laws and not mandatory right. A right
to be defended by counsel presupposes a right to be heard. The respondent was under no
obligation to hold an inquiry, therefore the applicant had no right to be heard, and he
could not have the right to be defended by counsel;
In this case, as the fundamental liberty under the Constitution Article 5 was
intended to be merely declaratory of existing law. Article 5(4) of the Constitution is
intended to apply to arrests under the Criminal Procedure Code and not to arrests under
the Restricted Residence Enactment. Similarly, clause (3) of Article 5 of the Constitution
does not apply to cases under the Restricted Residence Enactment.

Surinder Singh Kanda v Govt of Malaya [1962] 1 MLJ 169

Issues
Whether the hearing by adjudicating officer was vitiated by Insp. Kanda not being given
any opportunity of correcting or contradicting the report?

Facts
The plaintiff, who was an Inspector in the Royal Federation of Malaya Police Force, first
appointed on probation in 1951 and permanently appointed to the rank of Inspector on
June 1, 1953. He was dismissed by the Commissioner of Police On July 7, 1958. Having
exhausted his departmental rights of appeal, he commenced these proceedings on October
1, 1959. He asked for a declaration and other consequential reliefs stating that his
purported dismissal on July 7, 1958 was void and inoperative and of no effect and that he
was still a member of the said Police Force as it was effected without him being given a
reasonable opportunity of being heard (at the board of inquiry held by the Police Force)
and that this was Contrary to art. 135(2) of the Constitution and natural justice.

Held
The court held that in art. 144(1), the words "subject to the provisions of any
existing law" meant only that the Police Service Commission shall operate pursuant to
existing laws which are not in conflict with the Constitution. In case of conflict between
existing law and the Constitution the latter must prevail and as such it is necessary for the
Court to modify the existing law under the authority of art. 162. The Police Service
Commission was the authority to appoint an officer of appellant's rank; therefore under
art. 135(1) it was the authority to dismiss him. The Commissioner of Police was without
such authority. The right to be heard carries with the right of the accused to know the case
made against him and he must be given a fair opportunity to correct or contradict them.
The dismissal was void.

Aminah v Superintendent of Prison [1968] 1 MLJ 92

Issues
1. Whether the detention is non-compliance with article 5(3) of the Federal
Constitution in that the detainee had not been informed as soon as may be of the
grounds of his arrest?
2. Whether the power to detain has been exercised mala fide and in consequence the
grounds for his arrest are not reasonable?
Fact
This is an application by Aminah binti Haji Mamat, for a writ of habeas corpus on behalf
of her husband, Haron bin Jaffar, who is at the moment being detained at the Pengkalan
Chepa Prison, Kelantan.
Held
The court dismissed the application for 2 reason. Firstly, the detainee a few hours
after his arrest he was fully informed by the police and knew the reasons for his arrest,
this satisfied the requirement of article 5(3) of the Constitution which applies to arrest
made under any law including Restricted Residence Enactment in this case.
Secondly, the inconvenience and possible delay in either getting him before a
commissioner of oaths, or alternatively of getting the latter to visit the prison amounts to
other sufficient cause for the detainee himself not filing the affidavit in support of an
application for habeas corpus.
Thus the applicant in this case failed to discharge the onus cast upon her which is
to prove the detention order was exercised improperly.

Assa Singh v MB Johore [1969]2 MLJ 30

Issues
1. Whether the Enactment is contrary to the Constitution and, if so whether it is
void?
2. Whether the power of Minister to make order on subjective belief can be
delegated?
Fact
The applicant was arrested on and has been under detention since 1st September, 1968 in
pursuance of a warrant issued by the Menteri Besar, Johore under section 2(i) of the
Restricted Residence Enactment in exercise of the powers purported to be delegated to
him by the Minister of Interior and Justice. It was argued in this case that the Enactment
has no provision thus it was submitted that the provisions of the Enactment were
inconsistent with the provisions of articles 5 and 9 of the Constitution.
Held
The Court dismissed the application and held that Restricted Residence Enactment is
a law relating to public security, therefore its provisions are not inconsistent with article 9
of the Constitution. In addition, the Enactment does not have provisions similar to those
of clauses (3) and (4) of article 5 of the Constitution but this does not make it unconstitutional; despite such inconsistency with the Constitution the Enactment is in force,
but it must be applied with such adaptations as may be necessary to bring it into accord
with the Constitution.
The court also held that the delegation by the Minister of his powers under the
Enactment is a valid one and the Mentri Besar can therefore validly exercise all the
powers and duty of the Minister under section 2 of the Enactment.

Datuk Seri Samy Vellu v S Nadarajah [2000] 4 MLJ 696

Issues
1. Whether the court may apply the pre-Merdeka law with modification to bring that
provision of the pre-Merdeka law into accord with the Federal Constitution?
2. Whether pre-Merdeka law which is inconsistency with the Federal Constitution
can be declared null and void?
Facts
The respondent made a complaint on oath before the magistrate against the applicant. The
magistrate ordered the summons be issued against the applicant whereby he was charged
for an offence under Section 352 of the Penal Code. The applicant applied for questions
of constitutional law to be referred to the High Court.
Held
The court held that the mere fact that the Criminal Procedure Code is a preMerdeka law does not mean that it is necessarily inconsistent with the

Federal

Constitution. The court may apply the pre-Merdeka law with such modifications, which
term includes amendment, adaptation and repeal as may be necessary to bring the
provision of the pre-Merdeka law into accord with the Federal Constitution.
Furthermore, the court also held that since the Criminal Procedure Code is a preMerdeka law, Article 4 does not come into operation to strike down a law as being void
upon the ground of being inconsistent with the Federal Constitution. The applicable
provision is Article 162(6) of Federal Constitution which requires the court to make
modifications to the law to make it accord with the Federal Constitution. Thus, Section
133 to 136 of the Criminal Procedure Code cannot be declared to be null and void.

Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289
Issues
1. Whether the Aborigines Peoples Act 1954 as pre-Merdeka legislation must be
interpreted in a modified way to fit in with Federal Constitution?
2. Whether acquisition of aboriginal lands must be adequately compensated
according to Land Acquisition Act 1960 ?
Fact
In this case, the court was dealing with the nature of customary title and the plaintiffs had
been occupying the lands for at least 210 years until the state government acquired them.
The plaintiffs were aboriginal peoples of the Temuan tribe, who by their customand
tradition, were settled peoples, in Bukit Tampoi (the land). The first defendant was the
State Government of Selangor. The second defendant was a public limited company in
the business of road construction. The third defendant was the Malaysian Highway
Authority. Part of the land settled upon by the plaintiffs was gazetted as Aboriginal land
under the Aborigines Peoples Act 1954 (the 1954 Act). A large strip across all this land
was excised for the purpose of an expressway which the second defendant was to
construct. The first defendant acquired the land and the defendants evicted the plaintiffs
from the land. The High Court granted the plaintiffs compensation under the Land
Acquisition Act 1960 (the 1960 Act) for loss of part of land which the judge found to
have been held under customary title. The defendants appealed.
Held
As regards to the Section 12 of Aborigines Peoples Act 1954 , it is a pre-Merdeka
provision. Therefore, the court held that it must be interpreted in a modified way so that it
fits in with the Federal Constitution. The way in which Section 12 of Aborigines Peoples
Act 1954 is to be brought into conformity with the Constitution is to make it yield to
Article 13(2) of the Federal Constitution. That is achieved by not reading the words the
State Authority may grant compensation therefor as conferring a discretion on the State
Authority whether to grant compensation or not. For otherwise it would render Section 12
of the Aborigines Peoples Act 1954 violative of Article 13(2) of Federal Constitution and

void because it will be a law that provides for the compulsory acquisition of property
without adequate compensation.. Therefore, the relevant the words (State Authority)
may (grant compensation) in Section 12 of Aborigines Peoples Act 1954 should be read
as shall and by introducing adequate before compensation,the modification is
complete .
Furthermore, the court held that adequate compensation should be done on the
basis of the Land Acquisition Act 1960 because the Land Acquisition Act 1960 by
definition applies to the plaintiffs case. The learned judge by adopting a liberal
interpretation was merely giving full effect to Article 8(5)(c) of the Federal Constitution
which sanctions positive discrimination in favour of the aborigines .

City Council of George Town v Government of Penang [1967]1 MLJ 169

Issue
Whether Federal Court has jurisdiction on declaring state enactment void?
Facts
The subject argue that the laws made by Government of Penang, which are City Council
of George Town Order 1966 and Municipal (Amendment) Enactment 1966 contravene to
the Local Government Enactment Act 1960 (Act 11/1960) of the federation.An
application was made on behalf of the respondents for an order to dismiss the petitions on
the ground that Federal Court has no jurisdiction in the matter.
Held
The court held that the law was null and void as refer to article 75 of Federal
Constitution which states that any state law that is inconsistence with the Federal
Constitution shall be void up to is inconsistency and federal law shall prevail.Since the
state law is invalidated to the extend of any inconsistency therein with a federal law by
article 75,notwithstanding even that the state law maybe within the competency of the
state legislature,an order will be made to invalidate the inconsistent state enactment.
Besides that,Article 128 (1) (a) of the Federal Constitution gives Federal Court
exclusive jurisdiction to determine any question whether a law made by Parliament or the
legislature of a state is invalid on the ground that it makes provision with respect to a
matter to which Parliament,as the case may be,the legislature of a state has no powers to
makes law.

Public Prosecutor v Datuk Harun Idris [1976] 2 MLJ 116,[1977] 1 MLJ 180
Issues
Whether Section 418 A of Criminal Procedure Code is unconstitutional and void?
Facts
The case was transferred from Session Court to High court on the certificates issue by
Public Prosecutor under the provisions of Section 418 A of Criminal Procedure
Code.Counsel of accused contented that the provisions violated the Article 8 (1) of
Federal Constitution and was therefore void and unconstitutional.
Held
In this case Section 418 A of Criminal Procedure Code conferred discretionary power
on the authority without laying down the any policy or disclosing any tangible or
intelligible purpose and thus conferred unguided and arbitrary powers enabling the
authority to discriminate which violated the Article 8 of Federal Constitution.While the
public prosecutor cannot in exercising his discretionary power discriminate at will and
infringe the provisions of Article 8 of Federal Constitution.
In this case the accused have been prejudiced as if they are tried in High Court,the
punishment will be greater than in Session Court.Thus Section 418 A of Criminal
Procedure Code as it is worded and as it stands is therefore unconstitutional and void by
the virtue of provisions of Article 8 of Federal Constitution and equally so the certificates
issued by the public prosecutor for the transfer of the case is accordingly no effect.

Teng Cheng Poh v Public Prosecutor [1980] AC 458

Issues
1. Whether rulers emergency law making power self extendable?
2. Whether Attorney Generals decision to prefer charges under Internal Security Act
unconstitutional?
Facts
On June 13, 1976, the defendant was found in Penang in possession of a revolver and
ammunition. The unlawful possession of fire arms and ammunition if in a security area
was a security offence contrary to section 57 (1) of the Internal Security Act 1960. The
unlawful possession of firearms was also an offence contrary to the Arms Act 1960. The
Attorney General in his capacity as public prosecutor decided to prosecute the defendant
under the Internal Security Act 1960 and the defendant was charged accordingly and tried
by special procedure provided for by the Security Cases Regulations. He was convicted
and appealed.
Held
The Federal Court allowed the appeal on the grounds that the ruler had power under
article 150 (2) of the constitution to legislate in an emergency only while parliament was
not sitting and that although by the Emergency (Essential Powers) Act 1964 Parliament
had validly delegated to the ruler a power to make a emergency laws it had done so only
in respect of the 1964 emergency which had been impliedly revoked by proclamation of
the 1969 emergency; that, therefore, the provisions of the No. 1 Ordinance authorizing
the continuation of the exercise of the rulers law making powers lapsed when
Parliament sat on February 20, 1971, and the ruler had no power after that date to alter
criminal procedure code; and that, accordingly, the Security Cases Regulations were ultra
vires the constitution and void and the defendants trial was a nullity.

Malaysian Bar v Government of Malaysia [1986] 2 MLJ 225

Issues
1. Whether there are discrimination about the disqualification of the lawyers who are
members of Parliament or any of the State Legislatures or local authorities or hold
office in any trade union or political party or organizations of a political nature?
2. Whether there are discrimination against junior lawyer in the management of bar?
3. Whether the question of freedom of association arise when prevent a lawyer from
being member of the Bar?
Facts
The fact of the case was about the declaration sought by plaintiff in the originating
summons:
a) That section 46(1)(a) of the Legal Profession Act, 1976 as introduced by the Legal
Profession (Amendment) Act, 1978, is ultra vires Article (1) of the Federal Constitution
guaranteeing equality before the law and equal protection of the law and therefore void
under Article 4(1) of the Federal Constitution.
b) That section 46A(1)(a) of the Legal Profession Act, 1976 as introduced by the Legal
Profession (Amendment) Act, 1978 is ultra vires Article 10(1)(c) of the Federal
Constitution guaranteeing freedom of association and therefore void under Article 4(1) of
the Federal Constitution.
Held
The court held that it is common ground that a law is bad if it is discriminating,
unreasonable and if there is no nexus between the law and the objects of the amending
act. For the first issue, one of the objects of section 46A of the Legal Profession Act 1976
is clearly stated that the affairs of the Bar be managed by members of the Legal
Profession who are not only professionally independent but appear to the outside world.
Hence the provision that lawyers who are members of Parliament or any of the State
Legislatures or local authorities or hold office in any trade union or political party or
organizations of a political nature are disqualified from holding office in the Bar Council
or Committees. The provisions (Section 46A(1)(b) and (c) in Legal Profession Act 1976)
apply to all lawyers and are therefore not discriminatory. For the second issue, the court
says that it also seems to be the object of section 46A of the Legal Profession Act 1976,

to ensure that the management of the Bar is in the hands of senior members of the
profession. The powers and functions of the Bar Council and State Bar Committees as
provided by the Act must clearly be exercised by senior members of the profession and
the disqualification from membership of these bodies by junior members is not
unreasonable. Moreover, in so far however as section 46A(1) applies to any Committee
of the Bar Council or a Bar Committee the provision has gone more than a little too far
and is unreasonable. The words "or of any committee of the Bar Council or a Bar
Committee" appearing in the section in so far as it affects paragraph (a) thereof is ultra
vires Article 8(1) and is therefore void under Article 4(1) of the Federal Constitution but
the remaining provisions are not ultra vires or void under the Federal Constitution.For the
last issue, nowhere in section 46A is there a provision to prevent a lawyer from being a
member of the Bar. The question of freedom of association therefore does not arise.
Section 46A(1)(a) of the Legal Profession Act, 1976, is not ultra vires Article 10(1)(c)
and therefore not void under Article 4(1) of the Federal Constitution.

Menon v Government of Malaysia [1987] 2 MLJ 642 ; [2008] 1 MLJ 277

Issues

1. Whether there are discrimination from s1(2) of the Pensions Adjustment Act 1980
against foreign-resident pensioner?
2. Whether the permissible discrimination violates the equality provision of Article
8?
Facts
The fact of the case was the respondent, Mr VR Menon is an Indian citizen residing in
Madras, India. He is a pensioner receiving pension from the Malaysian government and
he is aggrieved by the residential qualification imposed by s 1(2) which excludes him and
his dependants from the additional benefits conferred by the Act. He brought an action
against the government of Malaysia seeking a declaration that he be paid his pension in
accordance with the Act as any other resident pensioners in Malaysia and for other
consequential reliefs.
Held
The court dismissed the appeal of respondent and held that there can be no doubt
that s 1(2) of the Pensions Adjustment Act 1980 is discriminatory against foreign-resident
pensioners, but the classification between foreign and local resident-pensioners is
founded on an intelligible differentia. The intelligible differentia has a rational nexus with
the object to be achieved by the 1980 Act which is to ameliorate the financial position of
pensioners in Malaysia due to the depreciating value of the ringgit and the rise in the cost
of living in Malaysia. Besides, the residential qualification imposed by the Act constitutes
a permissible discrimination and therefore does not violate the equality provision of art
8(1) and as such it is not null and void under art 4(1) of the Federal Constitution.

Public Prosecutor v Datuk Yap Peng (1987) 2 MLJ 311

Issue

Whether section 418A of the Criminal Procedure Code was unconstitutional?

Facts
The accused was charged with criminal breach of trust in the Kuala Lumpur Sessions
Court on Dec 19, 1986. When the case was mentioned on Dec 29, the deputy public
prosecutor tendered a certificate issued by the public prosecutor under Section 418A of
the Criminal Procedure Code (CPC), requiring the case to be transferred to the High
Court.
When the accused was subsequently charged in the High Court on Jan 6, 1987, his
counsel argued that the transfer was unconstitutional and that Section 418A violated
Articles 121(1) and 5(1) of the Federal Constitution.
Held
Section 418A was unconstitutional because it contravenes Article 121(1). He held that the
power to transfer cases is an exercise of judicial power. Aggrieved by that decision, the
public prosecutor appealed to the Supreme Court.
The Supreme Court by a majority agreed with the decision of the High Court that Section
418A CPC was unconstitutional.

Mamat Bin Daud & Others Vs. Government Of Malaysia (1988) 1 MLJ 119
Issue

Whether the said section which was enacted by the Parliament in ultra vires Article 74(1)
of the Federal Constitution, since religious matters are reserved for the state legislatures
and therefore beyond the legislative competency of Parliament?
Facts
The petitioners were charged for an offence under section 298A of the penal code for
doing an act which is likely to prejudice unity among persons professing the Islamic
religion. They were alleged to have acted as an unauthorized Bilal, Khatib and Imam at a
Friday prayer in Kuala Terengganu without being appointed under the terengganu
Administration of Islamic Law Enactment, 155.
The respondent contended that the Section was valid because it is a law passed by
Parliament on the basis of Public Order, internal security and also criminal law according
to Article 11 clause (5) and items (4) of List 1 of the Ninth Schedule of the Federal
Constitution.
Held
Section 298A of the penal code is a colourable legislation in that it pretends to be a
legislation on the public order, when in pith and substance it is a law on the subject of
religion with respect to which only the states have power to legislate under Articles 74
and 77 of the Federal Constitution.
Thus, there must be a declaration that Section 298A of the Penal Code is a law with
respect to which Parliament has no power to make law and a declaration that section
298A of the Penal Code is invalid and therefore null and void and of no effect.

Nordin Bin Salleh v Dewan Undangan Negeri Kelantan [1993] 3 MLJ 344
Issues

1. Whether leave of judge of Supreme Court is required?

2. Whether the provisions made by legislature of the state of Kelantan were beyond
their power?
Facts
On 3 March 1993, the applicant was served with two separate summons sent by the Chief
Kadi of Kelantan charging him pursuant to s 73 of the Enactment with insulting a mosque
official. The applicant sought leave to file proceedings for declarations that s 73 of the
Kelantan Council of Religion and Malay Custom Enactment 1966 (the Enactment) was
invalid.
Held
The court held that High Court has jurisdiction over the matter of seeking
declaration that s 73 of the Enactment as void on the grounds that it was inconsistent with
the provisions of article 10 (1) (a) of the constitution and not on the grounds that it dealt
with a matter with respect to which the Kelantan legislature had no power to deal with.
Furthermore, the leave of a judge of the Supreme Court was not required.
The court was also satisfied that the applicant had an arguable case in that the
application was not frivolous. The Enactment was a post- Merdeka legislation and the
intended challenge was on the competency of the Kelantan state Legislature to enact the
legislation. The two prayers were not merely grounded on the impugned law being
inconsistent with the Constitution, the validity of the legislation was also to be challenged
on the grounds that it dealt with a matter with respect to which the state legislature had no
power to make the law. As such, leave of a judge of the Supreme Court was required
under Art 4 (4) and the applicant should be allowed to canvass his case before the full
court on the constitutionality and validity of the section in the said Enactment.

Faridah Begum Bt Abdullah v Sultan Of Pahang [1996] 1 MLJ 617

Issue

Whether plaintiff had the right to sue Sultan of Pahang in his personal capacity in Special
Court
Facts
The plaintiff, who was a Singaporean, sued the Sultan of Pahang in his personal capacity
for alleged libel and for damages in the Special Court established under Article 182 of the
Federal Constitution. Both parties agreed that the court should first determine a
preliminary issue raised by the defendant.
Held
The court dismissed the plaintiff claim as it is in the nature of a libel suit and held
that Article 74(3) of the Federal Constitution provides that the powers of the Parliament
is restricted and was subject to any conditions imposed with respect to any particular
matter by the Constitution. In this case, Parliaments legislative power was subject to the
special provision of Article 155 of the Constitution.
As under Singapore Constitution, a Malaysia citizen could not sue the president of
the republic in any Singapore courts. Thus, even if Parliament were to confer the right on
a Singapore citizen to sue a Ruler, such conferment was illegal and ultra vires Article 155
of the Federal Constitution.
Article 182(2) of the Federal Constitution did not entitle the plaintiff, a Singapore
citizen, to sue ruler in the latters personal capacity.
Article 155 rendered Article 182(3) void to the extent that it purported to allow a
non-citizen to sue a Ruler in the Special Court. If Singapore were to amend its
Constitution to allow a Malaysian to sue the President on Singapore, the Malaysian
Parliament might confer a Singaporean a similar right or privilege to sue a Ruler in
Malaysia.

Nhuang Chan Sdn Bhd v Public Prosecutor [2001] 2 MLJ 129

Issue
Whether Section 28B(3) of the Trade Description Act 1972 was ultra vires Article 145 of

the Federal Constitution and was void to that extent.

Fact
A complaint was lodged by an assistant controller of trade descriptions. Before the trial
was concluded, the magistrate transmitted the record of proceedings to the High Court
and placed before it for determination of whether Section 28B(3) of the Act which allows
proceedings to be conducted by an assistant controller of trade descriptions is ultra vires
Article 145(3) of the Federal Constitution.
Held
The court dismissed the appeal by the respondent and allowed the cross-appeal by
the appellant. Section 380(ii)(b) of the Criminal Procedure Code (CPC) (prior to the
amendment in 1998) is unconstitutional as it sought to oust the powers of the Attorney
General under Section 376(1) of the CPC to control and direct all criminal prosecutions
and it stands in the face of his general powers under Article 145(3) of the FC.
A complaint lodged by the assistant controller could be said that he did institute
the proceeding. Whatever action he took would still be considered under the supervision
of the controller which would be subject to the general direction and control of the
minister and therefore in direct conflict with Article 145(3) of the Federal Constitution.
Therefore, Section 28B(3) of the Act is ultra vires Aritcle 145(3) of the
Constitution, and that the prosecution conducted was null and void.

Danaharta Urus Sdn Bhd V Kekatong Sdn Bhd [2004] 4 MLJ 2009
Issues
1. Whether a registered proprietor can caveat its own land ?
2. Whether defendant can succeed in its claim under 85 Suit ?

3. Whether the vesting certificate is a serious issue to be tried in this court ?

4. Whether the party involved can raised issues of limitation ?
Fact
The defendant was the registered owner of four pieces of land ('the said lands') charged to
Bank Bumiputra Malaysia Bhd ('BBMB') by way of a third party charge for a loan
facilities granted to Kredin Sdn Bhd ('Kredin'). Kredin failed to repay the loan to BBMB.
This resulted in BBMB foreclosing on the said lands after initially issuing to the
defendant the statutory notice of demand which was not satisfied. An order for sale was
obtained by BBMB on the said lands. Before any success could be achieved at the public
auction, the defendant filed a motion to set aside the order for sale on the ground that
Form 16D of the National Land Code ('the NLC') was not served on the defendant's
registered address. This motion was dismissed by the judge of first instance but on
appeal, the Court of Appeal allowed the appeal. On the 7 May 1999, the plaintiff acquired
the loan granted to Kredin and the security over the said lands from BBMB under a
vesting certificate permitted under the Pengurusan Danaharta Nasional Berhad Act 1998
('the Danaharta Act'). Basically, this action sorts to nullify the rights of these two parties
over the said lands for reason that their rights are statute barred and that the vesting
certificate is null, void, and of no effect. As an interim measure, the defendant applied in
the 85 Suit for an interlocutory injunction to restrain the plaintiff and Bumiputra
Commerce Bank Bhd from dealing with the said lands until disposal of the 85 Suit.
Though without the injunction, the plaintiff still faces the caveats placed by the defendant
on the said lands. The plaintiff now desires to have them removed.

Held
Although the 85 Suit concerned the said lands, the caveats were never an issue raised
therein. It is only when the caveats are specifically raised or made an issue then under O

32d of the Rules of the High Court 1980, it would be more appropriate to proceed by way
of summons in chamber. Federal Court discharged the injunction granted by the Court of
Appeal must be viewed as having accepted a ruling that there was no serious question to
be tried and that the Court of Appeal's ruling of there being one was erroneous. Moreover,
there were other factors not considered by the Court of Appeal which now appear in the
instant application in deciding whether there was a serious question to be tried. The
plaintiff fell within the category of an aggrieved party under s 327 of the National Land
Code since the presence of the caveats had wrongfully affected the plaintiff's title to the
said lands and the plaintiff would suffer loss as the lands with caveat were less attractive
in the property market. The registered owner of land could not enter caveat on its own
land and defendant could not bring a claim of limitation against the plaintiff based on the
circumstances of the case because limitation was merely a defence to an action and could
not be a cause of action.

Public Prosecutor v Koh Wan Kuan [2007] 5 MLJ 174 ; [2008] 1 MLJ 1
Issues
3. Whether doctrine of separation of powers is definite and absolute?

4. Whether constitutional provision may be struck out on the ground that it

contravenes the doctrine of separation of powers?
5. Whether the powers and jurisdiction is prescribed solely by federal law?
Facts
The fact of the case was the child respondent in this appeal was convicted in the High
Court for murder punishable under s 302 of the Penal Code. He was ordered to be
detained during the pleasure of the Yang di-Pertuan Agong pursuant to s 97(2) of the
Child Act 2001 (Act 611) ('the Child Act'). He appealed to the Court of Appeal which
upheld the conviction but set aside the sentence imposed on him on the ground that s
97(2) of the Child Act was unconstitutional. The Deputy Public Prosecutor appealed to
the Federal Court.
Held
The court allowed the appealed. The court held that the doctrine of separation of
powers is not definite and absolute. The extent of its application varies from country to
country, depending on how much it is accepted and in what manner it is provided for by
the Constitution of a country. Similarly, judgments from other jurisdictions, while they
are useful comparisons, should not be treated as if they are binding on the Malaysian
courts. The Malaysian Constitution has features of the doctrine of the separation of
powers and at the same time, contains features which do not strictly comply with the
doctrine. To what extent the doctrine applies depends on the provisions of the
Constitution. A provision of the Constitution cannot be struck out on the ground that it
contravenes the doctrine. Similarly no provision of the law may be struck out as
unconstitutional if it is not inconsistent with the Constitution, even though it may be
inconsistent with the doctrine. The doctrine is not a provision of the Malaysian
Constitution even though it influenced the framers of the Malaysian Constitution.
Dissenting with regard to the view that the High Court's powers and jurisdiction are
solely prescribed by federal law. The amendment to art 121(1) should by no means be
read to mean that the doctrines of separation of powers and independence of the Judiciary
are now no more the basic features of the Federal Constitution. The amendment did not

cause the courts to become servile agents of a Federal Act of Parliament and to only
perform mechanically any command or bidding of a federal law.

Public Prosecutor v Syarikat Tekala Sdn Bhd [2007] 6 MLJ 500

Issues
4. Whether s 68 of the Employment Provident Fund Act 1991 and s 380(ii)(b) of the
Criminal Procedure Code were ultra vires art 145(3) of the Federal Constitution
and were void to that extent?
Facts

The fact of the case was a complaint was made against the respondent in relation to
offences under s 43(2) of the Employment Provident Fund Act 1991 ('the Act'), failure
by an employer to pay monthly EPF contributions in respect of or on behalf of an
employee. Pursuant to the complaint, a summons was issued by the magistrate and three
charges were preferred against the respondent. The respondent claimed trial to the
charges.
Thereafter, four additional charges were preferred against the respondent and the
respondent also claimed trial to these additional charges. An EPF officer conducted the
prosecution of the case with a letter of authorization issued by the deputy public
prosecutor pursuant to s 373 of the Criminal Procedure Code ('CPC'). Section 373 of the
CPC came into force on 1 April 1998. All the charges related to offences alleged to have
been committed before 1 April 1998. At the close of the respondent's case, a preliminary
objection was raised that the prosecution of the case was ultra vires art 145(3) of
the Federal Constitution and was null and void on the grounds that officers of the EPF do
not have the authority to institute and conduct the proceedings. The magistrate held that
the institution of the proceedings against the respondent for offences under the Act and
the conduct of the prosecution was invalid and struck off the proceedings. The appellant
appealed to the High Court. The High Court upheld the decision of the magistrate and
dismissed the appeal. The appellant appealed to the Court of Appeal.
Held
The court dismissed the appeal. The prosecution's authority to institute and conduct
the proceedings against the respondent in the magistrates court in the instant appeal were
governed by s 380(ii)(b) of the CPC prior to its amendment by Act A1015 and s 68of the
Act prior to its deletion by Act A1080. The two provisions were ultra vires or inconsistent
with art 145(3) of the Federal Constitution and hence by virtue of art 4(1) of the Federal
Constitution were void to the extent of their inconsistency. Therefore, the proceedings
instituted and conducted by the EPF in the magistrate court was null and void.