|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Malaysia |
] [Hide Context]
DALAM
MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA
RAYUAN)
RAYUAN
SIVIL NO. W – 02 -75 -Tahun 2000
ANTARA
1. MAJLIS PEGUAM
MALAYSIA
2.
R. R CHELVARAJAH
(didakwa bagi pihak semua ahli Majlis
Peguam
Malaysia termasuk dirinya sendiri)
3. BAR
MALAYSIA … PERAYU-PERAYU
DAN
RAJA SEGARAN
A/L KRISHNAN …
RESPONDEN
(Dalam Perkara Guaman No. S2-23-93-1999
dalam Mahkamah Tinggi Malaya di Kuala Lumpur
Antara
Raja
Segaran a/l Krishnan … Plaintif
Dan
1. Majlis
Peguam Malaysia
2. R.
R Chelvarajah
(didakwa
bagi pihak semua ahli Majlis
Peguam
Malaysia termasuk dirinya sendiri)
3. Bar
Malaysia … Defenden-Defenden)
Didengar
bersama dengan
DALAM
MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA
RAYUAN)
RAYUAN
SIVIL NO. W – 02 -780-Tahun 2000
ANTARA
1. MAJLIS PEGUAM
MALAYSIA
2.
R. R CHELVARAJAH
(didakwa bagi pihak semua ahli Majlis
Peguam
Malaysia termasuk dirinya sendiri)
3. BAR
MALAYSIA …
PERAYU-PERAYU
DAN
RAJA SEGARAN
A/L KRISHNAN …
RESPONDEN
(Dalam Perkara Guaman No. S2-23-93-1999
dalam Mahkamah Tinggi Malaya di Kuala Lumpur
Antara
Raja
Segaran a/l Krishnan … Plaintif
Dan
1. Majlis
Peguam Malaysia
2. R.
R Chelvarajah
(didakwa
bagi pihak semua ahli Majlis
Peguam
Malaysia termasuk dirinya sendiri)
3. Bar
Malaysia … Defenden-Defenden)
Didengar
bersama dengan
DALAM
MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA
RAYUAN)
RAYUAN
SIVIL NO. W – 02 -647-Tahun 2000
ANTARA
1. MAJLIS
PEGUAM MALAYSIA
2.
R. R CHELVARAJAH
(didakwa bagi pihak semua ahli Majlis
Peguam
Malaysia termasuk dirinya sendiri)
3. BAR
MALAYSIA … PERAYU-PERAYU
DAN
RAJA SEGARAN
A/L KRISHNAN …
RESPONDEN
(Dalam Perkara Guaman No. S2-23-93-1999
dalam Mahkamah Tinggi Malaya di Kuala Lumpur
Antara
Raja Segaran a/l Krishnan …
Plaintif
Dan
1. Majlis
Peguam Malaysia
2. R. R Chelvarajah
(didakwa
bagi pihak semua ahli Majlis
Peguam
Malaysia termasuk dirinya sendiri)
3. Bar Malaysia … Defenden-Defenden)
Didengar
bersama dengan
DALAM
MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA
RAYUAN)
RAYUAN
SIVIL NO. W – 02 -521-Tahun 2000
ANTARA
BAR MALAYSIA …
PERAYU
DAN
RAJA SEGARAN A/L KRISHNAN … RESPONDEN
(Dalam perkara Mahkamah Tinggi Malaya di Kuala Lumpur
Guaman Sibil S2-23-33-2000
Antara
Raja
Segaran a/l Krishnan …
Plaintif
Dan
1. Bar
Malaysia
2. Sulaiman
Abdullah
3. Roy
Rajasingham
4. Kuthubul
Zaman Bukhari
5. Mohamed
Apandi Ali
6. R.R.
Chelvarajah
7. Cyrus
V. Das
8. Raja
Aziz Addruse
9. Hendon
Mohamed
10. Mah
Weng Kwai
11. Tommy
Thomas
12. Mohd
Sofian Abd. Razak … Defenden-defenden)
Didengar
bersama dengan
DALAM
MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA
RAYUAN)
RAYUAN
SIVIL NO. W – 02 -512-Tahun 2000
ANTARA
BAR MALAYSIA …
PERAYU
DAN
RAJA SEGARAN A/L KRISHNAN … RESPONDEN
(Dalam perkara Mahkamah Tinggi Malaya di Kuala Lumpur
Guaman Sibil S2-23-33-2000
Antara
Raja
Segaran a/l Krishnan …
Plaintif
Dan
1. Bar
Malaysia
2. Sulaiman
Abdullah
3. Roy
Rajasingham
4. Kuthubul
Zaman Bukhari
5. Mohamed
Apandi Ali
6. R.R.
Chelvarajah
7. Cyrus
V. Das
8. Raja
Aziz Addruse
9. Hendon
Mohamed
10. Mah
Weng Kwai
11. Tommy
Thomas
12. Mohd
Sofian Abd. Razak … Defenden-defenden)
Coram: Richard Malanjum JCA
Hashim Yusoff JCA
Tengku Baharudin Shah Bin
Tengku Mahmud JCA
Judgment of
the Court
Introduction
1.
There are five appeals
before us. They arose from two civil suits,
S2-23-93-99 (the first suit) and
S2-23-33-00 (the second suit).
2.
Both suits were filed by
the Respondent herein as plaintiff. But in this Judgment he will be referred throughout
as the Respondent.
The defendants in the respective suits are the Appellants
herein and will collectively be referred to as such where appropriate in
this
Judgment. Otherwise the Appellants will be referred to by their respective
names.
3.
As the background facts and
events of these appeals are substantially interrelated we propose to briefly
state them first before dealing
with the issues and arguments.
The
Parties:
4.
In the first suit the first
Appellant is the Bar Council, the second Appellant was the former Chairman of
the Bar Council being sued
on behalf of all the Executive Committee members of
the Bar Council including himself while the third Appellant is the Malaysian
Bar. The first and third Appellants are bodies established under the Legal
Profession Act 1976 (the LPA).
5.
The Respondent is a
member of the Malaysian Bar paying an annual subscription fee of RM350.00 and
such further sums as may be required
for the various funds and projects of the
Bar Council. Section 43 of the LPA made membership to the Malaysian Bar
obligatory for
anyone wishing to be issued with annual practicing certificate.
6.
In the second suit the
first Appellant is the Malaysian Bar while the other Appellants were formerly members
of the Executive Committee
of the Bar Council.
Brief Backgrounds
Of Events:
7.
Raja Aziz the lead
counsel for the Appellants in both suits briefly summarized the object and
causes of the suits:
(a) that
in each of the action it sought ‘to
restrain the Bar Council, Malaysia, from convening and holding an Extraordinary
General Meeting to discuss allegations of impropriety
made against the Chief
Justice who was then in office’;
(b) that in the first suit ‘the allegations were made in an amended defence filed in August 1999
in High Court Civil Suit No. S2-23-43-1996’;
and
(c) that in the second suit ‘the allegations were similar, and they were
reported in the press on 31.05.2000, as having been made by Datuk Dr. Rais
Yatim, the
Minister in the Prime Minister’s Department’.
8.
These appeals relate to
the decisions of the same learned High Court Judge in both suits.
9.
In respect of the first
suit the appeals are:
(a) W-02-75-04 (Appeal 75) which is against the
judgment of the learned Judge rendered on 10.11.2003 and effectively disposed
of;
(b) W-02-647-00 (Appeal 647) which is against the
ruling of the learned Judge allowing the application by the Respondent for the
trial
of a preliminary issue pursuant to Order 33 of the Rules of the High
Court 1980 (‘the Rules’); and
(c) W-02-780-00 (Appeal 780) which is against the
dismissal by the learned Judge of the preliminary objection on the issue of
secrecy
of proceedings conducted by the Bar Council.
10.
The first suit was
triggered by the move of the Malaysian Bar acting in concert with the Bar
Council to call for an Extraordinary
General Meeting scheduled on 20.11.1999 at
10.00 a.m. at the Grand Ballroom, Renaissance Hotel Kuala Lumpur. A notice dated
12.10.1999
(‘the notice of 12.10.1999’) containing a proposed resolution of
even date (‘the proposed resolution of 12.10.1999’) was thus issued.
The
Respondent received a copy of the same. For convenience, in this Judgment
unless stated otherwise any reference to ‘the proposed
EGM’ includes the aforementioned
notice of 12.10.1999 and the proposed resolution of 12.10.1999.
11.
The main purpose of the proposed
EGM was to consider and to adopt if approved the proposed resolution of
12.10.1999 which read: ‘That the Bar
Council is to forthwith bring to the attention of the appropriate authorities
all relevant instances of controversy
that have undermined confidence in the
Malaysian Judiciary and to do all that is necessary to pursue the appointment
of a Royal Commission
of Inquiry to make such inquiries and recommendations as
may be appropriate to ensure that confidence in the Malaysian Judiciary
is
fully restored’.
12.
The reasons for tabling the
proposed resolution of 12.10.1999 were stated in the notice of 12.10.1999 and in
this fashion:
‘2. The Malaysian Bar:
(a) understands
that serious allegations of impropriety have been made against certain members
of the Judiciary; and
(b) is gravely
concerned with judicial development and pronouncement in certain important
branches of the law such as the law of contempt
and the law of defamation, and
with the administration of justice generally.
3. It is
the grave concern of the Malaysian Bar that by reason of these allegations,
developments and pronouncements confidence in the
independence, integrity and
competence in the Judiciary has been undermined to the detriment of the rule of
law in Malaysia.’
13.
On 02.11.1999 the
Respondent wrote to the Bar Council requesting that the proposed EGM be called
off. However the Bar Council did
not accede to his request. Hence the
Respondent filed the first suit on 09.11.1999.
14.
The prayers sought for
in the first suit (as amended) were as follows:
‘(a) For a
Declaration that the said EGM and the said proposed
resolution are ultra vires the Legal Profession Act 1976.
(b) For a
Declaration that the said EGM and the said proposed resolution constitute
contempt of Court.
(c) For a
Declaration that the said EGM and the said proposed resolution constitute
offences under the Sedition Act 1948.
(d) For an
interim injunction to restrain the Defendants either by themselves and/or their
servants and/or agents from holding the said
EGM on 20.11.1999;
(e) a
permanent injunction to restrain the Defendants either by themselves and/or
through their servants and/or their agents from holding
and/or causing to be
held any further similar meetings with the same or similar purposes.
(f) damages;
(g) costs;
(h) any
further and or other relief as this Honourable Court deem fit and proper to
grant.’
15.
Pending the trial of the
first suit the Respondent filed an application for an interlocutory injunction
while the Appellants applied
for the suit to be struck out. After hearing these
applications the learned Judge allowed the application by the Respondent but dismissed
the application by the Appellants. Appeals against both the decisions of the
learned Judge were subsequently lodged with this Court.
However on 12.07.2000 both
appeals were dismissed.
16.
On 26.07.2000 the
Respondent filed an application under Order 33 of the Rules for a preliminary
issue to be tried. On 05.09.2000 the
learned Judge ordered the following issue
to be tried, namely,
‘Whether
the proposed Resolution dated 12th October 1999 as contained in the
Notice dated 12th October 1999 and the proposed Extraordinary
General meeting on the Malaysian Bar to be held on 20th November
1999 were ultra vires the powers and objects of the Malaysian Bar under the
Legal Profession Act 1976 in that:
(a) The
Resolution and Extraordinary Meeting are not within the powers and/or objects
of the Malaysian Bar under the Legal Profession
Act 1976
(b) The
Resolution and the Meeting and the participation of both Council and Ordinary
members therein constitute Contempt of Court and/or
are seditious and/or are
unconstitutional.’
17.
In respect of the first
suit there were therefore three issues to be tried before the learned Judge. In
his judgment delivered on
10.11. 2003 (see: Raja Segaran a/l S Krishnan v Bar Council Malaysia & Ors [2004]
1 MLJ 34) the learned Judge answered all of them in the affirmative and
subsequently gave the following reliefs to the Respondent:
‘(a) A Declaration that the said
EGM and the said proposed resolution are ultra vires the Legal Profession Act 1976.
(b) A
Declaration that the said EGM and the said proposed resolution constitute contempt
of Court.
(c) A Declaration
that the said EGM and the said proposed resolution constitute offences under
the Sedition Act 1948.
[(d) Interim
injunction earlier granted on 19.11.99.]
(e) A
permanent injunction to restrain the Defendants either by themselves and/or
through their servants and/or their agents from holding
and/or causing to be
held any further similar meetings with the same or similar purposes.
(f) Damages
to be assessed by the learned Deputy Registrar.
(g) Costs.’
18.
In respect of the second
suit it was filed as a result of two events, namely, the letter issued on or
about 7th June 2000 and amended on 8th June 2000 by the then
Secretary of the Bar Council to all its members and the public statement
purportedly released by the Chairman
of the Bar Council in connection with a proposed
general meeting of the Malaysian Bar scheduled on 23.06.2000. For convenience in
this Judgment in relation to the second suit any reference to the proposed
general meeting includes any resolution to be tabled for
discussion thereat.
And the allegation or statement that prompted to convene the proposed general
meeting is referred to in paragraph
7 (c) hereinabove.
19.
The Respondent asserted
that on 12.06.2000 he wrote to the Malaysian Bar and to the Executive Committee
of the Bar Council requesting
that the proposed general meeting be called off
and gave them 48 hours to respond.
20.
However vide a faxed
letter dated 13.06.2000 from the Secretary of the Bar Council the Respondent
was informed that the proposed general
meeting would proceed as scheduled.
21.
And on 15th
June 2000 the Executive Committee of the Bar Council caused to be issued a
notice on the proposed general meeting by way of an advertisement
in the
newspapers.
22.
Hence the second suit,
which until to-date is still pending for trial, was filed on 19.06.2000 seeking
for the following relief:
‘(a) For a
Declaration that the purported notice is wrongful, illegal, invalid, null and
void and/or contrary to the Legal Profession Act;
(b) For a
Declaration that the convening of the said general meeting is wrongful,
illegal, invalid, null and void and/or contrary to the
Legal Profession Act;
(c) For a
Declaration that the said general meeting and the said proposed resolution and
the publication of the purported notice in the
press are ultra vires the Legal
Profession Act 1976;
(d) For a
Declaration that the said public statement and the said proposed resolution and
the said proposed general meeting and the publication
of the purported notice
in the press constitute contempt of Court;
(e) For a
Declaration that the said public statement and the said proposed resolution and
the said general meeting and the publication
of the purported notice in the
press constitute offences under the Sedition Act 1948;
(f) For an interlocutory
injunction to restrain the Defendants either by themselves and/or their
servants and/or agents from holding the
said general meeting on 23.06.2000;
(g) a
permanent injunction to restrain the Defendants either by themselves and/or
through their servants and/or their agents from holding
and/or causing to be
held any further similar meetings with the same or similar purposes that
constitutes contempt and/or an abuse
of power;
(h) damages;
(i) costs;
(j) any
further and or other relief.’
23.
An application for
interlocutory injunction was also filed in relation to the second suit. It was
heard by the same learned Judge
for the first suit. A preliminary objection was
raised by the Appellants but that was dismissed. Civil appeal W-02-512-2000 (Appeal
512) is an appeal to this Court against that dismissal. And after hearing the
parties the learned Judge ruled thus:
“I
therefore grant the plaintiff an order injuncting the 1st defendant or its
servants or agents from convening the extraordinary
general meeting fixed for
23 June 2000. I also order that the 1st defendant to pay the plaintiff the
costs of this application to
be taxed.”
Civil appeal W-02-521-00 (Appeal 521) herein is an appeal against
the granting of the interlocutory injunction.
The Hearing
24.
At the outset of hearing
of these appeals some confusion arose in that the Appellants in Appeal 512
intimated their intention to withdraw
it contending that the issues therein are
also in Appeal 521. However learned counsel for the Respondent asked for costs.
That halted
the Appellants from formally withdrawing the same. As such all the
appeals remained before this Court.
The Issues
For Determination
25.
Raja Aziz submitted that
the grounds relied upon by the Respondent in the first suit and partly in the
second suit were:
‘(1) that the
proposed resolutions to be discussed at the Meeting were ultra vires the Legal
Profession Act 1976;
(2) that the
Meeting and the proposed resolutions constituted contempt of court;
(3) that the
Meeting and the proposed resolutions constituted offences under the Sedition
Act, 1948’.
26.
And Raja Aziz listed the
issues of law raised in those grounds as follows:
‘(1) whether
the plaintiff (Respondent herein) had the locus standi to institute the
proceeding or, by way of corollary, whether the court
had the jurisdiction to
entertain the action;
(2) whether
the court had the jurisdiction to make the declarations prayed for; and
(3) whether
the court had the jurisdiction to restrain the convening and holding of the
Meeting (i.e. the proposed EGM)’.
27.
In relation to Appeal
647 Raja Aziz submitted that although the learned Judge allowed the first suit
to be tried on preliminary issue
under Order 33 he nevertheless erroneously proceeded
to allow witnesses to be called.
28.
Dato’ Loh Siew Cheang
learned counsel for the Appellants in Appeal 512 which was related to the
second suit, submitted on the failure
by the learned Judge despite objection
lodged to recuse himself from hearing the application. Learned counsel
maintained that the
issue remained a live issue.
29.
And Ms Ambiga
Sreenevasan learned counsel for the Appellants in Appeal 780 dealt with the
issue of secrecy of proceedings conducted
by the Bar Council citing section
76(2) of the LPA.
30.
Mr. D.P. Vijandran
learned counsel for the Respondent in his response to the respective
submissions of learned counsel for the Appellants
addressed each of the issues
raised. He also submitted on the jurisdiction and the principles of law the High
Court must consider
before granting an interlocutory injunction. In respect of Appeal
521 learned counsel highlighted the fact that there was no appeal
on the issues
now raised. Hence he argued that this Court should only be concerned with whether
the interlocutory injunction was
correctly given. Indeed Raja Aziz was also of
the same mind when he said that ‘ultra
vires point was not considered at all by the learned judge; and there being no
cross-appeal against the decision of the High
Court, that issue does not arise
in Appeal 521’.
31.
Anyway, in summary the main
issues to be determined in these appeals are thus:
(i) ultra vires - whether the actions of the
Bar Council and the Malaysian Bar in calling for the proposed EGM and proposed
general meeting
were ultra vires the LPA;
(ii) locus standi - whether the Respondent had
the locus standi to institute the suits;
(iii)
whether the High Court
had the jurisdiction to grant the relief sought for in the suits and/or the
interlocutory applications vis-à-vis
contempt of court and the offence of
sedition;
(iv) recusal point - whether it was correct for
the learned Judge not to disqualify himself from hearing the suits and
applications related
thereto;
(v)
secrecy - whether the
learned Judge was correct in refusing to recognize section 76(2) of the LPA as
providing the shield of secrecy
of all proceedings conducted by the Bar
Council; and
(vi) the application of Order 33 of the Rules.
Appeals
75 And 521
32.
We propose to deal with
Appeal 75 and Appeal 521 together in relation to the first three issues in
seriatim and thereafter consider
the other Appeals including W-02-647-00.
Initially we were inclined to deal first with the question of locus standi
since it might
be the determining factor in these appeals. But on further
consideration we find that the three issues are very much intertwined.
Thus, it
would be quite pointless to deal with that issue if in the first place the act
and conduct of the Appellants complained
of by the Respondent could not be held
to be ultra vires the LPA, contemptuous or seditious. We resolve therefore to
deal with these
three issues before addressing the question of locus standi of
the Respondent.
Ultra Vires
(i) The Contentions
33.
On the issue of ultra
vires Raja Aziz submitted three basic points for both the Appeals 75 and 521.
The first is the role of the Bar
under common law in the administration of
justice. The second is on the legal implications of Articles 125 and 127 of the
Federal
Constitution (‘the Constitution’) and the third is on section 42 (1)(d)
of the LPA. He did not agree that the issues of contempt
and sedition should be
part and parcel of the point on ultra vires. He argued that just because a
statement or an act might be contemptuous
or seditious should not render the
same to be ultra vires. And he went to ask whether the Bar should stand idly
when judges misconduct
themselves.
34.
To elaborate his first
point Raja Aziz submitted that ‘it has long
been acknowledged and emphasized by eminent judges that members of the Bar and
judges are each an integral part of the
proper administration of justice.’
He cited the case of Beevis v Dawson
(1956) 3 All E R 837; Rondel v Worsley (1967) 1 QB 443; R v Bow Street
Metropolitan Stipendiary Magistrate, ex parte
Pinochet Ugarte (No. 2) (1999) 1
All E R 577.
35.
And he went on to say that
members of the Bar are ‘expected to have
competency and integrity and to act without fear or favour in representing
their clients’ cause subject only to
their duty to justice’ while Judges’
tasks ‘are even more onerous in that in
addition to being competent independent and impartial, they must be persons of
impeccable integrity
because if their integrity is suspect, their independence
and impartiality will equally be suspect’. Learned counsel also submitted
that such expectation of the Judiciary and standard of conduct and behaviour
expected of Judges are
found in the ‘Beijing
Statement of Principles of the Independence of the Judiciary in the Lawasia
Region’ as well as in ‘the Bangalore
Principles of Judicial Conduct’.
36.
To paraphrase his first
point, learned counsel seemed to suggest that members of the Bar are equally
responsible to ensure for an
independent Judiciary and proper administration of
justice. His complaint therefore is that in such context the learned Judge
failed
to appreciate the reasons for the convening of the proposed EGM and the
proposed general meeting.
37.
In passing Raja Aziz pointed
out that the learned Judge appeared to have two distinct views on the
statements which respectively prompted
the filing of the two suits. He said
that in the first suit the learned Judge did not question the accuracy of the
statement yet
the calling for the proposed EGM was ruled ultra vires the LPA. But
in the second suit (Appeal 521) Raja Aziz said that the learned
Judge ruled to
be hearsay the statements attributed to Dato’ Dr. Rais Yatim which was the
reason for the calling of the proposed
general meeting.
38.
And specific to Appeal
75 on the issue of ultra vires learned counsel argued that the Bar Council by
reason of its role in the administration
of justice was not ‘acting ultra vires the LPA in calling for the
EGM on each of the two occasions when the allegations against the Chief Justice
surfaced’.
39.
Learned counsel also submitted
on the ambit and implications of Articles 125 and 127 of the Constitution and
the construction of section
42(1)(d) of the LPA being an ambiguous provision.
He contended that the two constitutional Articles should not be interpreted as
having precluded any discussion on the conduct of judges.
40.
In respect of Appeal 521
on the same issue learned counsel contended that the learned Judge misdirected
himself when he ruled that
‘there was no
need for him to ask the plaintiff to even go into the merits of his
application’ after concluding that ‘there
is no basis for the Malaysian Bar to contend that there were allegations made
by Datuk Dr Rais Yatim’ by reason of the same being hearsay evidence.
Learned counsel thus submitted:
(i)
that it was for the
Respondent ‘to satisfy the court that the
Bar Council was not entitled in law to convene’ the proposed general
meeting on the basis of Dato’ Dr Rais Yatim’s reported statements;
(ii)
that the burden was also
on the Respondent and which was not discharged ‘to show why the decision of the Bar Council to call’ for the general
meeting was ultra vires’ the LPA; and
(iii) that the ‘ultra vires point was not considered at all by the learned judge; and
there being no cross-appeal against the decision of the High
Court, that issue
does not arise’.
41.
Mr. DP Vijindran on the
issue of ultra vires in respect of both Appeal 75 and Appeal 521, though not
raised in the latter, submitted
that the case of the Respondent is not about
the Judiciary but about the Bar Council and the ambits of its powers under the LPA,
specifically on sub-section 41(1)(a)(e) and (g) thereof. And he also contended
that the Bar Council and the Malaysian Bar are creatures
of statute, that is,
the LPA, hence their actions must therefore be in conformity with the statutory
provisions. In particular it
was argued that section 42 of the LPA could not be
relied upon to justify the convening of the proposed EGM and the proposed
general
meeting.
42.
In summary, Mr.
Vijandran contended that the proposed EGM and the proposed general meeting
would be ultra vires the LPA in that:
(a) the LPA does not empower the holding of the
proposed EGM;
(b) the proposed EGM breaches specific
provisions of the LPA;
(c) the proposed EGM is unconstitutional,
illegal and void;
(d) the proposed EGM constitutes contempt and
expose ‘Bar members to committal for
contempt and expenditure of funds to defend against committal proceedings’ ;
and
(e) the proposed EGM exposes the Bar and its
members to charges under the Sedition Act.
43.
Despite Raja Aziz having
expressed his preference to have the issues of contempt and sedition dealt with
separately Mr. Vijandran
nevertheless emphasized that in raising the issues of contempt
and sedition the thrust of the Respondent’s case is not ‘to establish illegality per se but to establish the ultra vires
nature’ of the proposed EGM and the proposed general meeting. And he listed
the implications arising from the proposed resolution of 12.10.1999
in that:
(a) the words used therein would have the effect
of undermining the integrity, independence and competence of the Judiciary;
(b) it expressed no confidence in the Judiciary;
and
(c) it called for Royal Commission of Inquiry
into the Judiciary.
Learned counsel submitted that each of the above
implications could constitute contempt.
44.
On the issue of sedition
it was the contention of Mr. Vijandran that the proposed EGM and the proposed
general meeting would contravene
section 3(1)(c) of the Sedition Act 1948 in that it has a ‘seditious tendency ... (c) to bring into hatred or contempt or to
excite disaffection against the administration of justice in Malaysia
or in any
State’. Furthermore Judges are appointees of the Yang diPertuan Agong.
Hence the purpose of the proposed EGM and the proposed general meeting
is to
arraign His Majesty’s Judges and that would tantamount to questioning the
appointing authority of the King.
45.
Mr. Vijandran also
submitted that the proposed general meeting and the proposed EGM which included
the call for the appointment of
a Royal Commission of Inquiry would be
unconstitutional hence ultra vires the LPA in view of Articles 125 and 127 of
the Constitution.
(ii) The Finding
Of The High Court
46.
In respect of the first
suit the learned Judge, having heard the witnesses called and the submissions
of learned counsel for the parties
and after examining the materials before
him, made the following findings, inter alia:
(a) that serious allegations of impropriety
were made against certain members of
the Judiciary as contained in the notice of 12.10.1999 and the proposed
resolution of 12.10.1999 yet the Bar Council and
the Malaysian Bar did not take
any responsibility to determine whether such allegations were factual. Instead
they were indifferent
to their truth;
(b) that the Bar Council and the Malaysian Bar
are creatures of statute, that is the LPA. Hence it is therefore imperative
that they recognize
this fact and act with concern when making statements due
to their unique positions;
(c) that sub-section 42 (1) (d) of the LPA
confines the Bar Council and the Malaysian Bar to express their views on
matters affecting
the administration of law ‘only if requested so to do’;
(d) that the Bar Council and the Malaysian Bar
have no power to discuss the conduct of judges and any attempt to do so would
be contrary
to Article 127 of the Constitution; and
(e) that the call for the setting up of a
Royal Commission of Inquiry is clearly contrary to Article 125 of the
Constitution which provides
for the mode of removal of a Judge.
(iii) The Finding Of This Court
47.
In view of the stand
adopted by Raja Aziz and in order to avoid unnecessary confusion in the
sequence of our reasons we will consider
the issues of contempt and sedition
separately from the issue of ultra vires.
48.
From the submissions of
Raja Aziz it would appear that the ground relied upon for the convening of the
proposed EGM and the proposed
general meeting was on the rationale ‘that members of the Bar and judges are each
an integral part of the proper administration of justice’. And he went on
to argue that it should be for the Respondent to show why the Bar Council and
the Malaysian Bar could not convene
those proposed meetings.
49.
We note that the issue
of ultra vires was also submitted during the hearing of the application for an interlocutory
injunction in
relation to the first suit. In his judgment when allowing the
application the learned Judge said, inter alia:
“It would seem, from a perusal of the LPA that each of these
sub-paragraphs is based on s. 41(1)(a), (e) and (g) respectively of the LPA. To
my mind none of these sub-sections can be said to provide the defendants with a
right to propose the resolutions in question. In
fact sub-para. (e) seems to
cast upon the defendants the duty to ensure that they conduct themselves
"in any proper manner".
In my judgment acting ultra vires the provisions, namely, to by-pass art. 125 of the
Federal Constitution and to call for a Royal Commission of Inquiry clearly does
not fall within any of the objects and powers conferred upon the Bar pursuant
to s. 42 of the LPA. In fact with regard to
sub-para. (e) far from protecting the members' interest the defendants are
exposing their members to possible
charges of contempt and sedition. If the
defendants cannot slot their case within any of the provisions of s. 42, then
clearly their
conduct is ultra vires.
Obviously the plaintiff being a member of the 3rd defendant has a right to act
to sue to restrain the defendants from committing
an act which is ultra vires.” (See: Raja Segaran a/l Krishnan v Bar
Council Malaysia & Ors [2000] 1 MLJ 1 at p. 24).
50.
On appeal against the
granting of the interlocutory injunction a differently constituted panel of
this Court agreed with the conclusion
of the learned Judge and went on to say
this, inter alia:
“The
respondent also argued that the proposed EGM and the proposed resolution are
ultra wires the powers conferred to the appellants
pursuant to the Legal
Profession Act 1976 (LPA). The learned
judge agreed with the respondent. He
stated his reasons for agreeing so. He
cited authorities that go to support his conclusions. We find that the learned judge had not erred in law and facts on
this "ultra vires" issue. We
would, however, go a step further to say that this act of the Bar in trying to
convene the EGM to discuss that proposed resolution
is in fact an illegality. This is because the LPA does not contain any
provisions to enable them to do that act.
And Article 127 of the Federal Constitution clearly empowers the
Parliament to discuss the conduct of judges.”
(See: Rayuan Sivil No. W-02-47 Tahun 2000 and Rayuan Sivil No.
W-02-48-Tahun 2000).
51.
We have no reason to
disagree with the above views. However lest we might be misunderstood, we are
not saying for a moment that we
consider ourselves necessarily bound by a
decision of another panel of this Court even on a same issue.
52.
Having given our serious
consideration to the opposing arguments submitted on the issue of ultra vires we
are of the opinion that
there is much force in the contention that being
creatures of statute the Bar Council and the Malaysian Bar must act and conduct
their affairs within the framework of the LPA. Acts or conducts beyond its
parameters would be ultra vires. Hence in convening the
proposed EGM and the
proposed general meeting the Bar Council and the Malaysian Bar must be able to
satisfy the Court that they were
acting within the ambit of the LPA. From the
judgment of the learned Judge it is obvious that they failed to do so. Thus, we
have
no reason to disagree with such conclusion.
53.
Specifically we agree
that the convening of the proposed EGM and the proposed general meeting does
not meet the requirements of sub-section
42(1)(d) of the LPA which reads:
"(d) where
requested so to do, to express its view on matters affecting legislation and
the administration and practice of the law in Malaysia;”.
54.
There was no evidence
adduced during the trial in respect of the first suit that there was a request
from any quarters for the Bar
Council or the Malaysian Bar as a statutory body to
express their views or to act or conduct as they did. We do not think the Bar
Council and the Malaysian Bar can legally be entitled to say that they have the
right or even the privilege to act or conduct as
they did notwithstanding the
constraints in the LPA. And we cannot agree that the sub-section is ambiguous. As
to who should request
for their views is of course another issue but surely it
has to come from a relevant and proper authority and not from any busybody.
55.
We have no doubt in the rationale
of the general principle of law pertaining to the role of the Bar in the
administration of justice
as submitted by Raja Aziz. But as stated earlier the
Bar Council and the Malaysian Bar are creatures of the LPA and as such they
must act and conduct their activities within the four corners of the statute.
That is a settled law applicable to any legal personality.
(See: Malaysia Shipyard v Bank Rakyat (1985) 2
CLJ 427). And in DP Vijandran v Majlis Peguam (1995) 3
MLJ 576 this Court said at p. 593:
“The
Bar Council is a creature of statute. It has only those powers that are
conferred upon it by the LPA. Whenever its actions are
challenged, the onus
lies upon it to demonstrate under what provision of the LPA it purports to act.
As a
creation of statute, the Bar Council has been conferred with certain powers to
manage and administer its affairs. These are all
general in nature and they are
to be found in Pt V of the LPA, and more particularly in ss 56 and 57 thereof.
As was put to counsel
in the course of argument, ss 56 and 57 of the LPA are to
the Bar Council what a memorandum of association is to a limited company
—
nothing less, nothing more.”
56.
We are also inclined to
accept the view of this Court expressed in relation to the appeal against the
granting of the interlocutory
injunction in respect of the first suit and
reproduced herein. In particular we accept the argument that the act or conduct
in convening
the proposed EGM and the proposed general meeting would be
contrary to or undermine the purposes of Articles 125 and 127 of the Constitution.
If such act or conduct of the Bar Council and the Malaysian Bar were unconstitutional
to begin with the inevitable conclusion is
that they are ultra vires the LPA. It
cannot be said or even imagined that the LPA permits an unconstitutional act or
conduct of
its creatures.
57.
Sub-section 41(1) (a),
(d), (e) and (g) of the LPA read:
“42 Object and powers of the Bar
(1) The purpose of the
Malaysian Bar shall be-
(a) to uphold the
cause of justice without regard to its own interests or that of its members,
uninfluenced by fear or favour;
(b) ………….;
(c) ………….;
(d) where
requested so to do, to express its view on matters affecting legislation and
the administration and practice of the law in Malaysia;
(e) to represent,
protect and assist members of the legal profession in Malaysia and to promote
in any proper manner the interests of
the legal profession in Malaysia;
(f) …………..;
(g) to protect
and assist the public in all matters touching ancillary or incidental to the
law;”.
58.
Raja Aziz did not dwell
much on the scope of the above. However, we agree with Mr. Vijandran that the
act or conduct of the Bar Council
and the Malaysian Bar in proposing to convene
the proposed EGM and the proposed general meeting could not be within any of
the sub-paragraphs.
For instance sub-paragraph (a) refers ‘to uphold the cause of justice’ which would cover a situation where
an Advocate and Solicitor being an officer of the court is duty-bound to inform
a client of a
court order and the knowledge of the Advocate and Solicitor
acting for the client would be imputed to the client. (See: Tan Ah Chin & Sons Sdn Bhd v Ooi Bee
Tat & Anor [1993] 3 MLJ 633). The learned Judge in his judgment when
allowing an application for an interlocutory injunction in relation to the
first suit held
that sub-paragraph (e) would appear to cast upon the Bar
Council and the Malaysian Bar the duty to ensure that they conduct themselves
'in any proper manner'. However by-passing
Article 125 of the Constitution and calling for a Royal Commission of Inquiry were
ruled by the learned Judge
to be a conduct not in any proper manner and ultra
vires the sub-paragraph. (See: Raja
Segaran a/l Krishnan v Bar Council Malaysia & Ors [2000] 1 MLJ 1 at p. 24).
We are inclined to agree with such view.
59.
In our opinion it is
inconceivable to say that the proposed EGM and the proposed general meeting
would be upholding the cause of justice
or to protect the public in matters
touching or incidental to the law when the nett effect is to ‘censure’ the
Judiciary while permitting
discussion on the conduct of His Majesty’s Judges in
flagrant disregard to Articles 125 and 127 of the Constitution. There is much
to say in support of the wisdom of Article 127.
60.
Allowing an open
discussion on conduct of His Majesty’s Judges could amount to questioning the
wisdom of the King in his selection.
Further the Judiciary thrives on the
public confidence in the system. Openly criticizing the Judiciary could bring
about public misunderstanding
of the system and would then produce unwarranted
public misgivings. If that is not undermining the system we do not know what
is.
And we are inclined to agree with the learned Judge that the acts of the
Bar Council and the Malaysian Bar could not be described
otherwise than being
unconstitutional. Surely it must not have been the intention of Parliament when
it promulgated the LPA from
which the Bar Council and the Malaysian Bar evolved
that the same bodies would act contrary to the intent of the legislation and
the Constitution. Indeed there is much to say in support as was also indicated
in the earlier judgment of this Court of what the
learned judge in C. Ravichandran lyer v. Justice A.M.
Bhattacherjee & Ors. (1995) 5 SCC 457 at p. 472 said:
“In
other words, the Constitution does not permit any action by any agency other
than the initiation of the action under Article 124(4)
by Parliament.
………………..
By necessary
implication, no other forum or fora or platform is available for discussion of
the conduct of Judge in the discharge
of his duties as a Judge of the Supreme
Court or the High Court, much less a Bar Council or group of practising
advocates. They are
prohibited to discuss the conduct of a Judge in the
discharge of his duties or to pass any resolution in that behalf ………………….”
61.
Hence, we find no merit
in the contentions of the Appellants on the issue of ultra vires and in law we
cannot fault the learned Judge
when he allowed the relief sought for in respect
of the first suit, namely, ‘a Declaration
that the said EGM and the said proposed resolution are ultra vires the Legal
Profession Act 1976’.
62.
And for completeness we
note that in respect of Appeal 521 it is common ground that the issue of ultra
vires did not appear to have
a role in the mind of the learned Judge when he
allowed the application. Nevertheless, we are of the mind that our views on the
issue
in respect of Appeal 75 are equally applicable and we so hold. The
correctness on the grant of the interlocutory injunction is another
issue which
we will deal later.
Contempt
63.
We have
already summarized hereinabove the argument of Mr. Vijandran on the issue of
contempt. To recap he submitted, inter alia,
that if the convening of the
proposed EGM could amount to contempt of court then the act or conduct of the
Bar Council and the Malaysian
Bar in convening it must be ruled ultra vires. Learned
counsel then proceeded to show how such act or conduct could amount to contempt
of court.
64.
Raja Aziz
addressed the issue by questioning the locus standi of the Respondent in raising
it. He complained that the learned Judge
relied on the facts of the cases cited
instead of applying the legal principles. In addition learned counsel contended
that in coming
to his finding of contempt the learned Judge failed to consider
several questions, namely, whether it was even more crucial to maintain
the
independence and impartiality of the Judiciary in that judges whether
individually and collectively must strive to enhance and
maintain confidence in
the judicial system; whether the decision of the Bar Council and the Malaysian
Bar to convene the proposed
EGM and the proposed general meeting was consistent
with their role as equal partner of the Judiciary in the proper administration
of justice, having regard to the serious allegations of impropriety made and
whether the allegations made against the then Chief
Justice as stated in
sub-paragraph 7(b) hereinabove merited looking into. Learned counsel also submitted
that the learned Judge erred
in subjecting to close scrutiny the notice of
12.10.1999 issued by the Bar Council in connection with the proposed EGM and
then making
a finding that it was the Bar Council that was undermining the public
confidence in the Judiciary.
65.
Hence, the
question for us to consider is whether the learned Judge was correct in his
finding in respect of contempt of court being
committed if the proposed EGM
were to proceed. And although the issue was not raised in the interlocutory
application under the second
suit our determination on the issue would equally
apply if necessary.
66.
In coming to
his finding (see: Raja Segaran a/l S Krishnan v Bar Council Malaysia
& Ors [2004] 1 MLJ 34 para. 30)
the learned Judge referred to some of the cases cited
by learned counsel for the Respondent in submission, namely, Attorney-General v Fred Zimmerman &
Ors [1986] 2 MLJ 89 and Gallagher
v Durack (1983) 
57 ALJR 191.
67.
In the first
case it was the view of the Singapore High Court that certain statements made
in the ‘The Asian Wall Street Journal’
were irresponsible and offensive ‘statements calculated to bring the
Judiciary of Singapore into contempt or to lower its authority. The statements
in so many words
question the integrity and impartiality of the courts. The
outrageous allegation made in them is that our courts are not independent,
that
they do not decide on the evidence, the law and the arguments openly placed
before them, and that they are influenced by outside
considerations, in
particular that the courts can be dictated to by the Government. The statements
are clearly calculated to undermine
public confidence in the proper functioning
of our courts.
…
In the context of these proceedings, anyone who attacks the integrity or
impartiality of a court or a judge commits contempt of
court. The reason is
simple. It undermines public confidence in the administration of justice.’ per Sinnathuray J. at 91. With
respect we see no reason why the learned Judge should not be allowed to draw a parallel
finding in the case before him. We are
therefore unable to agree with Raja Aziz
that the learned Judge erred in only applying the facts of those cases instead
of the principles
therein. After all what amounts to contempt of court in this
country is also very much a question of fact and guided by common law
principles. (See: Monatech (M) Sdn
Bhd v Jasa Keramat Sdn Bhd [2002] 4 MLJ 241).
68.
In ruling that the
notice of 12.10.1999 and the proposed resolution of 12.10.1999 were
contemptuous the learned Judge said, inter
alia (see: Raja Segaran a/l S Krishnan v Bar Council Malaysia & Ors [2004]
1 MLJ 34):
“With
regard to 1(a) of the Notice, counsel argued that the first defendant was
transgressing the very essence thereof by acting ultra
vires the LPA. Whilst
agreeing with the contents of 1(b) he likened 1(c) to Brutus stabbing Caesar.
His interpretation of 1(c) was
that if the judiciary is to be what it is to be,
then what it needs is independence, integrity and competence.
[25] But 2(a) Mr Vijandran says, is the stab by
Brutus. In a glib statement worthy of crafty lawyership he alleges that the Bar
had descended
into a nebulous and uncertain position by using the word
‘understands’.
[26] To my mind, the language used seems to suggest
that it was a fact that serious allegations of impropriety have been made
against certain
members of the judiciary. However, by using the word
‘understands’ it was clear that the defendants, whilst insidiously suggesting
a
fact, yet are not taking responsibility for asserting such a fact.”
…………………
[33] ………………………..the Malaysian Bar must accept the
fact that it is a voice that is heard by the public. It acts as a regulator. It
must
also act as a moderator.
[34] Independence of the judiciary is the
cornerstone of judicial functions. If this is attacked then the system of
administration of justice
is destroyed.
………………………….
[71] …. In the case before me, the plaintiff
contends that he is a member of the Bar and if the Bar is guilty of contempt or
sedition, he
too, as a member of the Bar, could be guilty of the same. What the
plaintiff is attempting to do is to show that if the meeting is
held to
consider the Resolution, the participants, including he, can be found guilty of
such an offence, and he wants to avoid that….
So long as the plaintiff has shown that he has the locus to make the
application and so long as he can show that the conduct of the
defendants is
such as to put him, the plaintiff, in peril of such similar prosecution that
the defendants could face if the defendants’
act is allowed to be consummated,
the plaintiff need not wait to see the outcome, before acting. To protect his
own interest he can
take out an injunction to restrain the defendants and if
the court is satisfied that the act complained of could give rise to the
plaintiff facing criminal prosecution, the plaintiff ought to be allowed to use
injunctive measures to stop the defendants.”
69.
With respect
we find the learned Judge’s approach on the issue to be correct in law and in
fact.
70.
As to the
argument that there were more serious questions to consider relating to the
need to protect the independence of the Judiciary
and not to be preoccupied
with the words used in the notice of 12.10.1999 and the proposed resolution of
12.10.1999, with respect,
we are unable to agree. We have already stated our
reasons for agreeing with the contention that the convening of the proposed EGM
was ultra vires the LPA. In short the Bar Council and the Malaysian Bar, as
statutory bodies, had gone beyond the purpose of their
incorporation.
71.
Accordingly
we find no reason to differ from the learned Judge in his finding on contempt
and we would say that this conclusion applies
to both Appeal 75 and Appeal 521.
72.
We note that
earlier on this Court in its unreported judgment when dealing with the appeal
against the grant of the interlocutory
injunction in respect of the first suit had
said this (see: Rayuan Sivil No.
W-02-47 Tahun 2000 and Rayuan Sivil No. W-02-48-Tahun 2000):
‘The learned judge then
proceeded to consider whether the preambles and the resolution "constitute
possible contempt”. For this, he
referred to several cases from India, Singapore and Australia and then
concluded thus:
"To my mind such utterances as contained in the
resolution are clearly contemptuous. It
is obviously an attempt to erode public confidence in the Judiciary.......”
We agree with the learned judge.’
73.
And after
referring to the following cases, namely, Brahma
Prakash v. State of U.P. AIR (1954) S.C. 10; Advocate General v. D. Seshagiri
Rao AIR (1966) Andhra Pradesh 167 and Crown v. A. Rafique & Ors.
IR (37) 1950 Sind 1 the judgment concluded:
‘We referred to the three above-mentioned cases as
we feel that they would further support the correctness of the learned judge's
conclusion that the resolution is clearly contemptuous. We would also stress that Seshagiri Rao's
case (supra) also held that in a proceeding for contempt the truth of the
imputations is
no defence at all.’
74.
With respect
we have no reason to disagree with the views expressed therein.
75.
Hence, we
are not persuaded by the submissions advanced for the Appellants and we find
that the learned Judge was not in error when
he granted in respect of the first
suit ‘a
Declaration that the said EGM and the said proposed resolution constitute
contempt of Court.’
Sedition
76.
On the issue
of sedition the learned Judge said (see: Raja Segaran a/l S Krishnan v Bar
Council Malaysia & Ors [2004] 1 MLJ 34 para. 66):
‘I have thoroughly discussed this heading in my earlier
judgment (see Raja Segaran a/l
S. Krishnan v Bar
Council Malaysia & Ors [2000]
1 MLJ 1 at page 25). The unreported judgment of the Court of Appeal
upheld my earlier views.’
77.
And in that earlier
judgment (see: Raja Segaran a/l S
Krishnan v Bar Council Malaysia & Ors [2000] 1 MLJ 1 at p. 25) when
allowing the application by the Respondent for an interlocutory injunction the
learned Judge said:
“The conduct of the defendants and the members of the third
defendant if allowed to attend the EGM and to discuss the resolutions
would appear
to constitute an offence under s 4(1)(a) read together with s 3(1)(c) of the
Sedition Act 1948. However, it is not my
duty to make any finding as to whether
an offence has or has not been committed under the said sections. This is for
the Public Prosecutor
to decide, if at all. In any event, it is my judgment
that the plaintiff in actual fact is protecting the defendants from plunging
into an abyss from which they cannot emerge unscathed.”
78.
This Court in
its unreported judgment upheld the view of the learned Judge with these words
(see: Rayuan Sivil No. W-02-47 Tahun
2000 and Rayuan Sivil No. W-02-48-Tahun 2000):
“As
regards the respondent's view that "the holding of the said EGM and/or the
adoption of the said resolution would also constitute
an offence under s. 3(l)(c)
and 4(1)(a) of the Sedition Act 1948, we are of the opinion that the wordings
of both the sections are
so simple and clear that no reasonable man could ever
disagree with the respondent's view.”
79.
We have
already noted hereinabove the points submitted by Mr. Vijandran on the issue.
80.
Raja Aziz in
his submission on the issue questioned the standing of the Respondent. Sedition
being a crime it was his contention that
only the Attorney General who could assert
public rights and who could represent public interest but not the Respondent.
81.
Leaving
aside the issue of locus standi which we will deal in greater detail later, it
is our view that the short answer to the query
of Raja Aziz is found in the final
judgment of the learned Judge when he said:
“…so long as he can show that the conduct
of the defendants is such as to put him, the plaintiff, in peril of such
similar prosecution
that the defendants could face if the defendants’ act is
allowed to be consummated, the plaintiff need not wait to see the outcome,
before acting. To protect his own interest he can take out an injunction to
restrain the defendants and if the court is satisfied
that the act complained
of could give rise to the plaintiff facing criminal prosecution, the plaintiff
ought to be allowed to use
injunctive measures to stop the defendants.”
82.
Further, we are
in agreement with the view expressed by this Court on the issue and reproduced
hereinabove.
83.
Thus, we
find no merit in the grounds of appeal of the Appellants and it is our judgment
that the learned Judge in respect of the
first suit was correct in law when he allowed
a ‘Declaration
that the said EGM and the said proposed resolution constitute offences under
the Sedition Act 1948.’ And to remove
any doubt our conclusion equally applies to Appeal 521.
Locus Standi
84.
On the issue
of locus standi the argument marshaled for the Appellants is that the
Respondent did not have substantive locus standi
since it is the Attorney
General alone who can institute criminal proceedings. This point was brought up
in relation to the contention
by the Respondent that to allow the proposed EGM
and the proposed general meeting to proceed would be contemptuous and seditious
and ultimately would expose him to possible criminal prosecution.
85.
It was also
further asserted for the Appellants that the Respondent failed to show (threshold
locus standi) that he would suffer special
injury distinct from any possible
injury that might be suffered by the rest of the members of the Malaysian Bar
if the proposed EGM
and proposed general meeting were to go ahead. Considerable
reliance was placed upon the following cases: Gouriet v Union of Post
Office Workers [1978] LR 435; Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek
& Ors & Other Appeals [1997] 3 MLJ 23 CA and Government Of Malaysia
v Lim Kit Siang [1988] 2 MLJ 12.
86.
Mr. Vijandran replied
that the principle in Gouriet
(supra) was not relevant to the facts of the present suits. Alternatively, he
submitted that even if applicable the exceptions therein
apply.
87.
In elaborating why Gouriet was not applicable Mr.
Vijandran listed the distinguishing factors, namely,:
(a) that Gouriet was not a member of the
Postal Union but just an ordinary member of the public;
(b) that Gouriet did not allege special damage
to him; and
(c) that Gouriet’s
principle does not apply where an application for an injunction is by a member
of a statutory body who seek to restrain ultra vires
acts of the corporation
notwithstanding the same acts may also be illegal and/or criminal.
88.
Learned counsel went on
to say that in the instant appeals the Respondent is a member of a statutory
body, that is, the Malaysian
Bar and thus entitled to restrain such body from
ultra vires acts even if those acts are also criminal offences. A series of
decided
cases were then cited to support such a proposition, inter alia: Simpson v Westminster Palace Hotel Co.
(1860) 8 HL Cas 712; Powell v Kempton Park Racecourse (1897) 2 QB 242; Hoole v
Great Western
Railway (1867) 3 Ch App 262; Jenkin v Phamaceutical Society of
Great Britain (1921) 1 Ch. D 392; Bermuda Cablevision Ltd. v Colica
trust Co.
Ltd. (PC) (1998) AC 198; Bateman’s Bay Local Aboriginal Land Council and
Another v Aboriginal Community Benefit Fund Pty
Ltd and Another 155 A.L.R. 684.
89.
Upon reading the
judgment of the learned Judge we would observe that he found locus standi for
the Respondent on the basis that:
“So
long as the plaintiff has shown that he has the locus to make the application
and so long as he can show that the conduct of the
defendants is such as to put
him, the plaintiff, in peril of such similar prosecution that the defendants
could face if the defendants’
act is allowed to be consummated, the plaintiff
need not wait to see the outcome, before acting. To protect his own interest he
can
take out an injunction to restrain the defendants and if the court is
satisfied that the act complained of could give rise to the
plaintiff facing
criminal prosecution, the plaintiff ought to be allowed to use injunctive
measures to stop the defendants.”
90.
And in the earlier
judgment of this Court on the issue (see: Rayuan
Sivil No. W-02-47 Tahun 2000 and Rayuan Sivil No. W-02-48-Tahun 2000) and
which the learned Judge referred to in his judgment, the view was expressed in
this fashion:
“In
the appeal before us, the respondent, as contended by the learned respondent's
counsel, brought the action as a member of the
Malaysian Bar and not as an
ordinary member of the public. The EGM
and the resolution expose Bar members (which include the respondent) to
proceedings for contempt and to charges under the
Sedition Act and consequently
expenditure of funds to defend the proceedings and the charges. On the basis of these facts, we feel that
Gouriet's case is distinguishable and as the learned respondent's counsel
contended, is
not relevant to the appeal before us. Assuming that we are wrong here, we are of the view that the
respondent had complied with the principles in Gouriet's case. Lord Diplock in Inland Revenue Commissioners
v. National Federation of Self-employed & Small Businesses Ltd. (1982) AC
617 at
page 638 said:
“As respects
the claim for a declaration considerable reliance was placed upon the recent decision of this House in
Gouriet v. Union of Post Office Workers (1978)
A.C 435, which held that a private citizen, except as relator in an action
brought by the Attorney-General, had no locus standi
in private law as
plaintiff in a civil action to obtain either an injunction to restrain another
private citizen (in casu, a trade
union) from committing a public wrong by
breaking the criminal law, or a declaration that his conduct is unlawful, unless
the plaintiff can show that some legal or equitable right of his own has been
infringed or that he will sustain some special
damage over and above that
suffered by the general public."
We are satisfied that the respondent, as a Bar member,
"will sustain some special damage over and above that suffered by the
general public" if the injunction is not issued. It must at this juncture, be not forgotten that the respondent is
a paying member of the Bar and payments are compulsory. He certainly
has an
interest in ensuring that the Bar does not involve itself in illegal activities
or ultra vires acts.”
91.
There is no doubt that
the doctrine of locus standi is far from settled. That was also the view of
this Court in Ketua Pengarah Jabatan
Alam Sekitar & Anor v Kajing Tubek & Ors And Other Appeals (supra). Thus, accepting for a moment the present
incoherent nature of the doctrine, there is much force in what Mr. Vijandran
has submitted,
that is, whether a member has the right to restrain a
corporation from doing ultra vires acts. Incidentally from the excerpt
hereinabove
of the earlier judgment of this Court that question appears to have
been answered in the affirmative. And we agree. The element of
being a member
of a statutory body is vital to come to such conclusion. The question of
special damage in such situation plays a
minor role.
92.
Anyway the above
principle is not novel. In Jenkin v
Phamaceutical Society of Great Britain (supra) it was ruled that at
common law a member of a society incorporated by
Royal Charter is entitled to ask for an injunction to restrain the commission
by the society of
acts which are outside of the scope of the Charter and which
might result in the forfeiture of the Charter and the destruction of
the
society. And quite recently that principle was referred to in the case
of Bermuda Cablevision Ltd. v Colica
trust Co. Ltd. (supra) where Lord Steyn delivering the opinion of the
Privy Council said this p. 210:
“In a company law context a closer analogy than Gouriet v. Union of Post Office Workers
[1978] A.C. 435 and Lonrho Ltd. v.
Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173 is provided by the case
of a company incorporated by Royal Charter. It has been held at common law that
a member
of such a society is entitled to an order restraining the commission
of acts outside the scope of the charter which may result in
the forfeiture of
the charter and the destruction of the society: see Jenkin v. Pharmaceutical Society of Great Britain [1921] 1 Ch.
392, Dickson v. Pharmaceutical Society
of Great Britain [1970] A.C. 403. That is not altogether dissimilar from
the complaint of Colica that the unlawful carrying on of business by
Cablevision
puts at risk the licence which is the lifeblood of Cablevision. But
their Lordships would not press this analogy too far and would
decide this
point on a broader basis.
93.
Accordingly
we agree with Mr. Vijandran that the strict application of the principle in Gouriet (supra) does not arise
in view of the facts and circumstances of the instant appeals before us.
94.
We are also
unable to agree that the case of Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek
& Ors & Other Appeals (supra) should be
applied. As in Gouriet the respondent there was not a member of a
statutory body or corporation seeking to prevent ultra vires acts.
95.
To recap the
Respondent is a member of the Malaysian Bar and all he is asking is for this
statutory body not to act beyond its statutory
powers and duties. And premised
on our concurrence that the proposed resolution of 12.10.1999, the holding of
the proposed EGM and
the proposed general meeting were ultra vires the LPA the
question of locus standi of the Respondent should not arise. It follows
that there
is no question of the civil court being asked to enforce any criminal law.
96.
In any event
it is also our opinion that the Respondent had satisfied the ‘special damage’ test.
Being a member of the Malaysian Bar
he would definitely have been exposed to
potential prosecution for sedition and contempt had the proposed EGM and the
general meeting
proceeded. The fact that he was only one of the many members should
not negate his standing to sue on his own to ensure that he would
not be exposed
to unnecessary legal complexities. (See:
Bateman’s Bay Local Aboriginal Land
Council and Anor. v Aboriginal Community Benefit fund Pty Ltd and Anor. 155 ALR
684).
Appeal 521
97.
In view of
our above conclusions on the main issues, initially, we were not inclined to
consider the other aspect of the complaint
of the Appellants in this Appeal.
However on further perusal we think we need to address it since Appeal 521
deals with the grant
of an interlocutory injunction by the learned Judge. In
other words, was the learned Judge correct when he allowed the application?
98.
Mr.
Vijandran in arguing for Appeal 521 advanced his first contention in that the
learned Judge was correct in granting the interlocutory
injunction on the basis
of one particular issue. Learned counsel submitted that the learned Judge was
right in his approach by first
seeking clarification from the Appellants on the
authenticity of the statements attributed to Dato’ Dr. Rais Yatim and the then
Chief
Justice. And he went on to argue that since the Appellants informed the
learned Judge that they were not concerned with the truth
and in view of the
legal implication arising from those statements in the context of the decision
in C. Ravichandran Iyer (supra)
which was followed by this Court in its judgment in Rayuan Sivil No. W-02-47 Tahun 2000 and Rayuan Sivil No.
W-02-48-Tahun 2000 there was
sufficient basis, even on a singular issue, to grant the interlocutory
injunction.
99.
Mr.
Vijandran further submitted that the usual ‘principles’ guiding Judges in
considering applications for interlocutory injunction
were not cast aside. He
said that in exercising his discretion the learned Judge considered the strong
case established by the Respondent
premised on the unverified statements relied
upon by the Appellants to call for the proposed general meeting. On that score
Mr. Vijandran
submitted that there was no necessity for the learned Judge to
deal with every elements of the ‘principles’ as enunciated in American Cyanamid Co. v Ethicon Ltd
(1975) 1 All E R 504. And in any event learned counsel contended that
the Appellants did not challenge that the balance of convenience tilted in
favour
of the Respondent bearing in mind the irreparable damages that could
arise if the proposed general meeting were to proceed solely
on the allegations
contained in the unverified statements. Thus according to learned counsel there
was no question of the learned
Judge having shifted the burden of proof when
considering the application.
100.
It was the
grounds of appeal of the Appellants that the learned Judge did not go into the
merits of the application and granted the
interlocutory injunction based on
preliminary point.
101.
Now, the law
on the grant or refusal of an interim injunction is clear. It involves the
exercise of discretion. As to the mode of
exercise pointers have been made as
for instance in the case of Keet
Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 where it was outlined thus:
‘To summarize, a judge hearing an application for an interlocutory
injunction should undertake an inquiry along the following lines:
(1) he
must ask himself whether the totality of the facts presented before him
discloses a bonafide serious issue to be tried. He must,
when considering this
question, bear in mind that the pleadings and evidence are incomplete at that
stage. Above all, he must refrain
from making any determination on the merits
of the claim or any defence to it. It is sufficient if he identifies with
precision the
issues raised on the joinder and decides whether these are
serious enough to merit a trial. If he finds, upon a consideration of
all the
relevant material before him, including submissions of counsel, that no serious
question is disclosed, that is an end of
the matter and the relief is refused.
On the other hand if he does find that there are serious questions to be tried,
he should move
on to the next step of his inquiry;
(2) having
found that an issue has been disclosed that requires further investigation, he
must consider where the justice of the case
lies. In making his assessment, he
must take into account all relevant matters, including the practical realities
of the case before
him. He must weigh the harm that the injunction would
produce by its grant against the harm that would result from its refusal He
is
entitled to take into account, inter alia, the relative financial standing of
the litigants before him. If after weighing all
matters, he comes to the
conclusion that the plaintiff would suffer greater injustice if relief is withheld,
then he would be entitled
to grant the injunction especially if he is satisfied
that the plaintiff is in a financial position to meet his undertaking in
damages.
Similarly, if he concludes that the defendant would suffer the greater
injustice by the grant of an injunction, he would be entitled
to refuse relief.
Of course, cases may arise where the injustice to the plaintiff is so manifest
that the judge would be entitled
to dispense with the usual undertaking as to
damages (see Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd
& Ors
[1988] 3 MLJ 90). Apart from such cases, the judge is entitled to
take into account the plaintiff’s ability to meet his undertaking
in damages
should the suit fail, and, in appropriate cases, may require the plaintiff to
secure his undertaking, for example, by
providing a bank guarantee; and
(3) the
judge must have in the forefront of his mind that the remedy that he is asked
to administer is discretionary, intended to produce
a just result for the
period between the date of the application and the trial proper and intended to
maintain the status quo, an
expression explained by Lord Diplock in Garden
Cottage Foods Ltd v Milk Marketing Board [1984] AC 130; [1983] 2 All ER 770;
[1983]
3 WLR 143 and applied in Cheng Hang Guan. It is a judicial discretion
capable of correction on appeal. Accordingly, the judge would
be entitled to
take into account all discretionary considerations, such as delay in the making
of the application or any adequate
alternative remedy that would satisjy the
plaintiff's equity, such as an award of monetary compensation in the event that
he succeeds
in establishing his claim at the trial. Any question going to the
public interest may, and in appropriate cases should, be taken
into account. A
judge should briefly set out in his judgment the several factors that weighed
in his mind when arriving at his conclusion’
- per Gopal Sri Ram JCA at p 206.
102.
The question
to ask therefore is: whether the learned Judge failed to observe any of the
guidelines above before granting the interlocutory
injunction?
103.
In his
judgment the learned Judge after dismissing the preliminary objections raised
by the Appellants went on to consider the basis
of the allegations upon which
the Appellants relied on to call for the proposed general meeting. And he
concluded thus:
‘Is not this condemning a person even without hearing
that person. If the Malaysian bar is not concerned with the truth or otherwise
of the allegations but want to have this meeting only to satiate their hunger
for a public debate over the chief justice by wresting
the discussion from the
general public and by so doing trying to show that they are protecting the
sanctity of the judiciary, it
seems to me that this effort is totally
misconceived. To my mind there is no basis to call for an extraordinary general
meeting on
allegations attributed to someone who has not even been asked to
verify its truth. There is no need for me to ask the plaintiff to
even go into
the merits of his application. On this one basic preliminary issue alone the
1st defendant has been unable to satisfy
me. I therefore grant the plaintiff an
order..’.
104.
At first
blush the manner in which the learned Judge came to his conclusion appears to
be inadequate. And it could have avoided unnecessary
argument if he had laid
down properly his analysis of the issues before him. But we hasten to add that
there is no strict requirement
that such analysis must be systematic and
perhaps erudite. Hence, in the instant appeal having read the judgment of the learned
Judge
as a whole we do not think it can be disputed that he did acknowledge
there were serious issues to be tried such as whether the allegations
were true
or plain hearsay, whether there was any basis to call for the suspension of the
then Chief Justice and the consequence
of the acts of the Appellants. And such
trend of thought could be gleaned from his judgment albeit obliquely when he
said:
‘It seems to me that whilst the Malaysian bar is making
a serious allegation by calling for the suspension of the chief justice or
for
his removal, they are prepared to do so on mere unsupported allegations without
even giving any thought to the principle of natural
justice by seeking
confirmation from Datuk Dr. Rais Yatim if the contents of the report as contained
in the newspaper cutting as
attributed to him were actually spoken by him.’
105.
And in our
view the learned Judge did consider where the justice of the case should lie.
He took into account public interest as well.
In fact he balanced the damage
that could arise if the proposed general meeting was held and the basis for its
calling by referring
to the decision in C.
Ravichandran Iyer (supra).
106.
As regards
damages it was contended for the Appellants that expenses went to waste due to
the grant of the interlocutory injunction.
In our view no one should be blamed
other than the Appellants themselves. We agree with the learned Judge when he said:
“The bar council in its public statement on the
proposed general meeting of the bar said "the bar as the natural friends,
protectors
and guardians of the sanctity of the judiciary is left with no
option but to examine the whole matter and proposed solutions at a
general
meeting". It seems paradoxical that having proclaimed itself as the
friend, protector and guardian of the sanctity of
the judiciary, the Malaysian
bar has totally ignored the basic precept of failing in its duty to listen to
the other side. It listened
albeit to unsupported statements allegedly
attributed to the minister in the Prime Minister's Department and it rushed
head on with
its avowed aim of calling a meeting to discuss publicly no doubt
within its confines, the conduct and behaviour of the highest official
of the
judiciary. Yet whilst pretending to protect the sanctity of the judiciary, it
did not accord the chief justice the right to
be heard before they even thought
of convening this meeting.”
107.
Accordingly
as a whole we do not think we can plainly say that the learned Judge exercised
his discretion erroneously given the circumstances
of the case. We are
therefore not prepared to interfere as it does not warrant our interference.
Conclusion For Appeals 75 And 521
108.
We find therefore
no merit in any of the complaints raised in these main appeals and hence we
dismiss them.
Recusal - Appeal 512
109.
This point comes
under Appeals 512 which is an appeal against the decision of the learned Judge
dismissing a preliminary objection
raised in connection with the application
for interlocutory injunction under the second suit.
110.
The thrust
of the contention of the Appellants is twofold. Firstly, that the learned Judge
should have recused from hearing the application
since he had already made a
decision on the same or very similar issues in the first suit, that is related
to Appeal 75 herein and
secondly that the same Judge had earlier on heard and dismissed
an application to amend the pleadings in another unrelated suit and
which proposed
amendment was subsequently incorporated into the defence in the first suit.
111.
In other
words it was the Appellants’ complaint that the learned Judge should have not
proceeded to hear the application for interlocutory
injunction under the second
suit since he had already decided on the same or very similar points in another
suit between the same
parties. Mr Loh for the Appellants went on to point out
the similarities in the relief sought for in the first and second suits to
substantiate his argument.
112.
And it is
also the submission of Mr. Loh that this recusal point should not be relegated
as mere academic issue since neither the
supporting facts nor the substratum of
the litigation giving rise to the issue have vanished nor ceased to exist. Further
he submitted
that the parties are still very much affected by the outcome of any
decision, the costs remains at large, the parties are still very
interested in
the issue and a decision on the issue does not merely serve as an obiter in
relation to the error of an earlier decision.
113.
Mr.
Vijanrdan gave quite a short answer to this complaint. He did not deal with the
contention that the issue had become academic
and we think rightly so. Instead
he submitted that the Appellants had it all wrong as to the facts of the suits
referred to. He began
by pointing out that in the Memorandum of Appeal the
reference to the case No. S2-23-42-96
by learned counsel for the Appellants had nothing to do with the Respondent or
the first suit. Hence learned counsel argued
that there was no ground for the
submission of learned counsel for the Appellants to sit on.
114.
Alternatively,
Mr. Vijandran submitted that there was no basis for the Appellants to say that
two similar cases were heard by the
learned Judge. According to learned counsel
the facts of the suits referred to were different. And he contended that although
the
questions of law might be the same or similar, that should not debar the
learned Judge from hearing the suits.
115.
In respect
of the application to amend pleadings in another unrelated suit which
allegations the Appellants contended were subsequently
incorporated into the
defence of the first suit, Mr. Vijandran argued that what was before the
learned Judge then was purely an application
to amend and not as to the truth
of the allegations.
116.
We note that
the submissions of Dato’ Loh on the issue were made with vigor and perhaps
conviction. But having deliberated on the
diverse arguments before us we are
inclined to agree with the submissions of Mr. Vijandran. On his first point we
are amenable to
the view that it could have been just an oversight. Thus
nothing turns on that. But there is much force in the alternative contention.
Indeed it is clear that the two suits of the Respondent were founded on two
different sets of facts although the points of law may
be similar. And no
authority was cited to us enunciating a principle of law that would have been a
basis for the learned Judge in
the instant appeal to recuse from hearing the
second suit.
117.
As to the
argument that the learned Judge had also heard the application to amend the
pleadings in another unrelated suit which he
then dismissed, we find such
argument to be an obvious indication of being plainly averse to the learned
Judge regardless of the
reason. For it is elementary that the criteria to
consider in an application to amend pleadings are entirely different. There was
also no assertion that the learned Judge had ruled on the truth or falsity of
the allegations which became part of the defence in
the first suit when he was
considering the application to amend.
118.
If we were
to agree with the contentions of Dato’ Loh then we might end up setting a
precedent where no judge can hear any two cases
with similar issues. That would
be stretching too far the principles of law enunciated on when judges and
arbiters should recuse
from hearing cases. The primary questions to consider
should be: whether ‘there
was a real danger of bias on the part of the learned trial Judge’ (see: Mohamed Ezam bin Mohd. Nor & Ors. v
Public Prosecutor (2002) 1 MLJ 321 FC) and whether the allegation and the factual circumstance could have
‘caused a fair-minded and informed bystander
to entertain a fear of real danger of bias’- (see: Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd
& Ors [2002] 4 MLJ 327; Locabail (UK) Ltd. v Bayfield Properties Ltd
& Anor. (2000) 1 All E R 65). Of course these questions would not
be answered fairly by anyone who has a preconceived mind towards any particular
judge or arbiter.
In this instant appeal we find that the Appellants have not
succeeded in convincing us that their contentions bear the affirmative
answers
to those primary questions.
119.
We note that
the matter before the learned Judge was only an application for an
interlocutory injunction. Any allegation of bias may
be premature. Indeed this
Court has opined before that in such a case ‘a
judge may grant an interlocutory injunction because he finds a particular line
of defence taken to be untenable and yet, after
hearing all the evidence and
detailed argument at the trial, reach the opposite conclusion and dismiss the
suit. I cannot help but
think that such an occurrence is commonplace in our
courts as it is indeed in other jurisdictions’ (see: Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ
213).
120.
For the
foregoing reasons we find no merit in this instant appeal and we dismiss it.
Secrecy- Appeal 780
121.
This appeal
relates to the first suit. It revolves on the interpretation of section 76(2)
of the LPA. The Appellants are dissatisfied
that one Mr. R. Rajasingam who was
then a member of the Bar Council was allowed to be called as a witness by the
Respondent during
the hearing of the first suit and to answer a specific
question, that is, whether the motion proposed by the Bar Council was the
same
as the proposed resolution of 12.10.1999 to be tabled during the proposed EGM.
122.
Section
76(2) which came into force on 16.12.1983 vide the Legal Profession (Amendment)
Act 1983 (Act A567/83) reads:
‘(2) Except and in so far as
may be necessary for the purpose of giving effect to any resolution passed or
decision made, secrecy shall
be maintained in all proceedings conducted by the
Bar Council, the State Bar Committee, the Inquiry Committee and their staff.’
123.
It was the
submission of Ms Sreenevasan that the section means what it says, namely,
prohibition against disclosure of what transpired
during any proceeding
conducted by any of the entity referred thereto. And she argued that section
123 of the Evidence Act 1950 (the
Evidence Act) should not be applied. She
cited the case of Maju Holdings Sdn
Bhd v Kamala Devi a/p Ramadass & Anor And Another Appeal [2003] 2 MLJ 36.
But it should be noted that that case was dealing with secrecy under the Banking
and Financial Institutions Act 1989 (‘BAFIA’).
124.
The
alternative argument presented was that even if the learned Judge was right in
relying on the provisions of the Evidence Act he
failed to comply with the
requirements of the provisions before admitting any evidence through Mr. R.
Rajasingam.
125.
In reply Mr.
Vijandran submitted that the learned Judge was right in his approach on the
issue. He argued that section 76(2) of the
LPA regulates the interaction
between members and should not be extended to court proceeding. He pointed out
that that section did
not oust the operation of the Evidence Act.
126.
As regards
the argument that there was no proper observation of the provisions of the Evidence
Act before admitting the documentary
evidence, Mr. Vijandran said that such
point should only be considered if there was any challenge to the relevancy of
such documents.
Since there was none the argument should fail.
127.
On this
issue the learned Judge said:
‘Having gone
through the various authorities, I held that it is the Evidence Act that
determines the admissibility of any evidence
in a Court of law, and in respect
of this case I held that the relevant provisions for consideration ought to be
sections 123 and
162(2) of the Evidence Act 1950. I also held that there was
nothing in the LPA that excluded the application of the Evidence Act.
I
therefore held that the meaning of the word 'secrecy' given to section 76(2) of
the LPA is that all decisions and discussions or
resolutions passed that relate
to investigations relating to the conduct or affairs (or complaints) against
members of the Bar are
the matters that ought to be kept secret to protect the
interest of such members, lest the conduct and affairs of members or any
complaints against any members be discussed by the Council or Committee members
in the open. I rejected the defendants' request to
apply the literal
interpretation to the meaning of the word 'secrecy'.
128.
With respect
the short answer to the complaint of the Appellants is found in section 2 of
the Evidence Act which states:
‘This Act shall apply to all judicial proceedings in or before any
court, but not to affidavits presented to any court or officer
nor to
proceedings before an arbitrator.’
129.
Hence,
unless it is expressly excluded we are of the view that the provisions of the
Evidence Act apply in any court proceedings.
We find no expressed exclusion in
section 76(2). Accordingly sections 118 and 136 would have been the provisions
in answer to the
objection when Mr. R. Rajasingam was called as a witness. Further
there is no provision in the Evidence Act which allows a witness
to rely on a
statutory protection such as contained in section 76(2).
130.
We find no
merit in this appeal and we dismiss it.
Order 33- Appeal 647
131.
For this
appeal we have already summarized the complaint of the Appellants hereinabove.
132.
Mr.
Vijandran in reply submitted that it was a matter of exercise of discretion by
the learned Judge. And he said that the issue as
framed took into account the
concerns of the Appellants and would finally dispose of the action. As regards
the calling of witnesses
learned counsel argued that the learned Judge gave the
parties liberty to call witnesses.
133.
In his
judgment the learned Judge ruled, inter alia:
‘I
am of the view that the plaintiff was perfectly right to move this court under O. 33 r. 2 of the RHC. The issues and the
grounds to back up the application are matters of law and if the defendants
contend that they need to call witnesses,
I had made an order allowing them to
do so. After all since notice to cross-examine on the affidavit can be served
to allow for oral
evidence to be admitted, I did not see anything wrong in
allowing the defendants the right to call any witness in support, instead
of
filing an affidavit….
……………………………………
Therefore
where the court is of the view that the issues could be decided without the need
for a prolonged trial, the court ought
to move under O. 33 r. 2 to be read with r. 5. In respect of
the defendants' submission, I hold that where contempt and sedition are
concerned, intention
or motive is irrelevant and immaterial. Therefore, the
defendants' argument that evidence must be led to show intention and the motive
for calling the EGM and moving the resolution, is no longer meritorious.
Before
I could make a decision, counsel for the 2nd defendant then suggested that the
proposed question should be as follows:
That
whether the said EGM and the said proposed Resolution constitute contempt of
court and whether the said EGM and the said proposed
Resolution constitute
offences under the Sedition Act 1948 and if the answers to the said two
questions are yes then whether the
said EGM and the said proposed Resolution
are ultra viresthe LPA 1976?
I
took this to mean that the 2nd defendant at least was conceding to the approach
taken by the plaintiff in proceeding under O. 33 r. 2 of the RHC, except that he wished the
question to be rephrased as suggested by the 2nd defendant. It was indeed a
surprise when I received notification
of the appeal.
In any case, I was completely satisfied that this case should
proceed under O. 33 r. 2read together with r. 5….
………………………………………
I
also ordered that parties, if they wished, be permitted to adduce oral
evidence; otherwise the case to proceed based on the pleadings,
the affidavits filed,
and the Agreed Statement of Facts ("B").’
134.
First the
law. For Order 33 of the Rules to apply the issues in a case should be clear
and not riddled with complexities and the facts
should not be in dispute. ‘Where the issues on point of law to be
decided involve the consideration of facts, resort to O 33 r 2 is
inappropriate. It is undesirable
to resolve such issues on a purely
hypothetical state of facts’ - (see: Newacres
Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474); Arab Malaysian Finance Bhd v Meridien
International Credit Corporation Ltd
London [1993] 3 MLJ 193).
135.
It appears
that the main complaint of learned counsel for the Appellants is that Order 33
should not have been applied since intention
and motive are necessary ingredients
before any finding for contempt and sedition can be arrived at. Otherwise there
were hardly
any disputed facts on the issues to be determined especially with
the Agreed Facts ‘B’ as amended available.
136.
Now, it was
held that mens rea is not an element that has to be proved to establish
contempt. And neither is motive. This view was
expressed by this Court in Murray Hiebert v Chandra Sri Ram [1999]
4 MLJ 321. And we reaffirm that
view.
137.
Since it is only
for the purpose of establishing intention or motive that the Appellants might
call witnesses we find therefore that
the learned Judge was right in allowing
the invocation of Order 33.
138.
Similarly,
for sedition the ‘intention of the
accused when he made the speech and used words which are alleged to be
seditious is not material or relevant for
it is provided in section 3(3) of the
Sedition Act that the intention of the speaker shall be deemed to be irrelevant
if in fact
the words have a seditious tendency’ per Ajaib Singh J (as he
then was) in Public Prosecutor v Oh
Keng Seng [1979] 2 MLJ 174. The then Federal Court affirmed the decision
of the High Court. (See: Oh Keng Seng
v Public Prosecutor [1980] 2 MLJ 244).
139.
Accordingly
we find no reason to fault the learned Judge in proceeding with the hearing of
the first suit by way of Order 33. Our
inevitable conclusion is that this
appeal is dismissed as we find no merit in the complaint thereof.
Overall Conclusion
140.
For the
reasons given we dismiss these appeals. And since these appeals were filed
separately though before us they were heard jointly,
it is only appropriate
that we allow costs to each of the appeals to be taxed and paid to the
Respondents. Deposits paid to account
for taxed costs.
Signed.
(Datuk Richard Malanjum)
Judge
Court Of Appeal Malaysia
Putrajaya
Signed.
(Dato’ Hj. Hashim Bin Dato’ Hj. Yusoff)
Judge
Court Of Appeal Malaysia
Putrajaya
Signed.
(Tengku Dato’ Baharudin Shah Bin Tengku
Mahmud)
Judge
Court Of Appeal Malaysia
Putrajaya
Date: 24th
September, 2004
Counsel for Appellants: Y.M. Raja Aziz
Addruse
Christopher
Leong
Leo
Su Chang
Ambiga
Sreenevasen
Ranjit
Singh
Kalvin
Seet
James
Kong
Gopal
Sreenevasen
Solicitors for Appellants: Tetuan Chooi
& Co.
Penthouse,
Bangunan Ming
Jalan
Bukit Nanas
50250
Kuala Lumpur
Tetuan
Sivananthan
Tingkat
1A, Blok B
Kompleks
Pejabat Damansara
Jalan
Dungun
Bukit
Damansara
50490
Kuala Lumpur
Counsel for Respondent: D.P. Vijandren
Solicitor for Respondent: Tetuan D.P.
Vijandran & Associates
No.
136B, Jalan Kasah
Medan
Damansara
50490
Kuala Lumpur
] [Hide Context]
CommonLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.commonlii.org/my/cases/MYCA/2004/35.html