‘Only Federal Court can decide questions of law’


PUTRAJAYA: Only the Federal Court is empowered to decide on legal questions relating to the constitutionality of the law, the court has ruled.

In a 30-page judgment, Chief Judge of Malaya Zulkefli Ahmad Makinudin has said the High Court did not have the jurisdiction and power to decide on constitutional issues from which the record of proceedings has been transmitted to the High Court by a subordinate court.

He said it was the intention of the legislature that the jurisdiction and power were vested with the Federal Court to decide on the constitutionality of any matter that had arisen in the subordinate court and transmitted to the High Court under Section 30 of the Courts of Judicature Act 1964.

Zulkefli, who presided a five-man panel together with Federal Court judge Zainun Ali, Azahar Mohamed,Zaharah Ibrahim and Aziah Ali, struck out an appeal brought by former Transmile Group Berhad Chief Executive Officer Gan Boon Aun after ruling that it was incompetent.

That panel set aside both decisions of the High Court and Court of Appeal and remitted the matter back to the High Court to consider, if any, and state the legal questions and transmit the matter to the Federal Court for determination.

Gan was appealing against the appellate court’s decision which had held that Section 122 (1) of the Securities Industry Act 1983, the section under which he was charged, was constitutional.

He, and another person, Khiudin Mohd, an executive director of Transmile Group Berhad, were charged in the Sessions Court in 2007, for abetting Transmile in making a misleading statement relating to Transmile’s revenue in the company’s unaudited consolidated results for the financial year ended Dec 31, 2006, under Section 86(b), read together with Section 122C(c) of the Securities Industry Act.

Both Gan and Khiudin were also charged with an alternative charge for furnishing the same misleading statement to Bursa Malaysia under Section 122B(a)(bb) read together with Section 122(1) of the Act.

On Nov 14, 2011, the High Court declared Section 122(1) of the Securities Industry Act to be unconstitutional after the Sessions Court transmitted the case to the High Court following an application by Gan and Khiudin for a referral on a constitutional question.

On Sept 28, last year, the Court of Appeal overturned the decision of the High Court and held Section 122(1) of the Act was valid, prompting Gan to appeal to the Federal Court.

In his judgment dated June 24, this year, Zulkefli said the court was of the view that under Section 30 of the Courts of Judicature Act, the High Court judge had to decide whether there was a question of constitutional issue on matters referred to it by the Sessions Court.

He said if there was none, the High Court judge must send the case back for continued hearing before the Sessions Court.

However, he said if the High Court found that it was necessary for a legal question to be determined, it was the duty of the High Court judge to state the legal question and transmit the case to the Federal Court.

“We would like to state here and advise all Sessions Court judges and magistrates when dealing with any application made by any party under Section 30 of the Courts of Judicature Act to properly ensure there is merit in such application.

“It may be just a frivolous application to delay the conduct of the hearing of the trial. If there is no merit in such application, the case should proceed to a final conclusion of the trial,” added Zulkefli.

He said a trial should be conducted on a continuous basis without interruption and delay, and should not be by instalment, adding that High Court judges should decide promptly and judiciously, whether there was merit in the referral application