Contributed by Julia Ng Yim Hwa and Cheong Jee Khuan
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Bar Council poll:
Court showdown on Jan 17
KUALA LUMPUR, Wed: Justice Datuk K P Gengadharan Nair
who took over from Justice Datuk Md Raus bin Sharif (now a Court of Appeal
Judge) as the Judge of the Appellate and Special Powers Division of the High
Court 9 days ago today had the unenviable task of hearing the case of Foo Ton Hin v
Malayisan Bar and 7 Others.
Appearing before Justice Gengadharan this morning were 17 counsel representing Foo Ton Hin the plaintiff, 8 defendants and 3 election candidates, namely – Tommy Thomas and Alex De Silva for Foo; Lambert Rasa–ratnam, Nahendran Navaratnam, Sean Yeow and Rachal Tan for the 1st defendant, the Malaysian Bar; Zainur Zakaria and Annou Xavier for the 2nd defendant, Datuk Dr. Yaacob Hussain Merican; Datuk Cecil Abraham and Sunil Abraham for the 3rd defendant, S. Radhakrishnan; Peter Skelchy for the 4th defendant, Inderjit Singh; Datuk R.R. Sethu and Chew Swee Yoke for the 5th defendant, Boniface Lobo; Francis Brigged for the 6th defendant, Dr Mohd Rafie Mohd Shafie; Datuk Dr Cyrus Das and Alvin Julian for the 7th defendant, Hendon Mohamed and the 8th defendant, Cecil Rajendra; and Ranjit Singh who held a watching brief for 3 of the Bar Election candidates, Low Beng Choo, Andrew Khoo and George Varughese.
The case which was earlier heard before Justice Datuk Wan Afrah Binti Dato Paduka Wan Ibrahim on December 15, 2006 commenced with Tommy asking the Court to hear Foo's application for an interim order in the terms of prayer 2 of Enclosure 5 which, inter alia, read as follows:
• that the scrutineers complete their count and make their declaration under section 50(5) of the Legal Profession Act, 1976 of the results of the Bar Council Elections 2007–2008 within 2 days from the date of the order;
• disclose such declaration in a sealed envelope to be filed by their solicitors with the Court within 3 days from the date of the order; and
• that such declaration to remain sealed and confidential until it is ordered to be disclosed by the Court during the hearing of the originating summons or at such other time as the Court may determine.
However, Justice Gengadharan was of the view that the Court should only concentrate on Enclosure 5 after having heard all the other applications – the plaintiff's application to amend the name of the 1st defendant in the Bahasa Malaysia version of the originating summons (Enclosure 1); the 2nd defendant Yaacob Merican's application to strike out Enclosure 1; the 5th defendant Lobo's application to strike out the 1st defendant from Enclosure 1 as well as to hear his counterclaim. (Please click here to download all the documents related to the suit which have been made available to the MBW.)
The Judge also remarked that the Malaysian Bar should resolve the case
through alternative dispute resolution, particularly by way of mediation as the public is
watching the progress of the proceedings closely.
Tommy then submitted that this is an urgent case, and Enclosure 5 should be
the focus of the day’s proceedings, but counsel for Lobo, Sethu objected.
Sethu said Yaacob Merican's application to
strike out the plaintiff should first be considered followed by the application
to strike out the 1st defendant, the Malaysian Bar. Sethu's objection was also
supported by Brigged, the counsel for Rafie.
In agreeing with Sethu, Cyrus said he was astonished that the
Bar Council did not come to Court as they ought to have been the plaintiff. "Had
they been the plaintiff, then the issues raised by the defendants would not have
arisen," said Cyrus.
Lambert Rasa–Ratnam, counsel for the Malaysian Bar then explained that the Bar Council was attempting to
resolve the matter with the scrutineers and before that could be concluded, the suit
was filed but the Bar Council, according to him, had always intended to go to Court.
He added that the 1st defendant was of the view that Enclosure 5 should be heard
first.
Justice Gengdharan then raised the issue of locus standi given that the plaintiff is not a candidate
in the election. He said if the plaintiff is shown to have no locus standi, then there
would be no action and any further need to hear and
consider Enclosure 5.
Tommy then informed the Court that the Attorney–General’s Chambers had no objection to
Foo's proposal stated in prayer 2 of Enclosure 5.
He added that since Malaysian Bar is one of the
parties to the proceedings, it does not matter who the Plaintiff is.
"What matters
most is the merit of the case itself," said Tommy. He added that the Bar Council elections have always been
run on the basis of trust which in the present circumstances has been betrayed
by those who have intended to sabotage it. Tommy said locus standi
therefore does not take away the judge’s
power in considering the interim relief.
Zainur also submitted that all the candidates of the elections ought to be
made parties to Enclosure 1.
Nahendran, the other counsel for the Malaysian Bar, then submitted that the
Malaysian Bar is obliged to preserve the elections if it can, but it is prepared
to hold fresh elections only if it is necessary and not because it is
convenient. He added that the Bar Council also wanted the police investigations to proceed in tandem with
the proceedings, and Enclosure 5 would serve both purposes.
After considering all the arguments made by the counsel and
noting that all parties wished to have the matter resolved on an urgent basis,
Justice Gengadharan decided that the applications filed by the defendants
should first be heard and he would then proceed to hear Enclosure 1, if
necessary.
The Judge then fixed the next hearing date on January 17 at 10.00 a.m.