NOVEMBER 29 –– One may call the decision of High Court judge Justice Datuk Muhammad Jamil Hussin to grant a discharge not amounting to an acquittal (DNAA) to former prime minister Datuk Seri Najib Razak and former Treasury secretary-general Tan Sri Mohd Irwan Serigar Abdullah in the RM6.6 billion International Petroleum Investment Company (IPIC) case as a damning indictment of Malaysia’s judicial and prosecutorial system.

With due respect, such a call is over-damning. The High Court decision may be damning of the prosecutorial system, but the same cannot be said of the judiciary.

We should in fact say kudos to the learned judge –– for standing up to the prosecution.

Justice Jamil Hussin, when making the decision, said he was using his inherent powers in allowing the DNAA, following the prosecution’s continued failure to produce documentary evidence since 2018. The delay, he said, was inordinate.

What is inherent jurisdiction? According to the Concise Oxford Dictionary, "inherent” means "existing in something esp as a permanent or characteristic attribute”.

In the context of law, that inherent jurisdiction is deemed to be part of the court’s power to do all things reasonably necessary to ensure fair administration of justice within its jurisdiction, subject to valid existing laws including the Constitution.

In other words, that inherent power is found within the very nature of a court of law, unlike power conferred by statute.

The Halsbury’s Laws of England, (4th Ed) refers to "inherent jurisdiction” as follows:

"In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

In Bremer Vulkan v South India Shipping [1981] 1 All ER 289 295, Lord Diplock speaking on the subject of dismissing a pending action for want of prosecution said:

"The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an ‘inherent power’ the exercise of which is within the ‘inherent jurisdiction’ of the High Court.”

For legal clarity, the use of the two expressions should be confined to the doing by the court of acts which it must have power to do in order to maintain its character as a court of justice. (See the judgment of Judge of Court of Appeal Azhar Mohamed (as he then was) in Ahmadi bin Yahya v Public Prosecutor [2012] 6 MLJ 37)

It does not matter whether a case is civil or criminal. Inherent jurisdiction and inherent power apply across the board save and except within the limited circumstances as expounded by the courts.

Where there is a clear case of injustice being committed, the courts –– being courts of justice –– cannot stand idly by and do nothing.

The courts cannot and should not shirk from their responsibility of preventing injustice in appropriate cases.

The courts must deal with it.

So, again, kudos to the learned judge. The judiciary is in good hands.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.