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• Court's reasoning far-fetched, says judge
• Lawyer fails to stop Bar EGM

KUALA LUMPUR, Tues: The High Court here today dismissed with costs lawyer Raja Segaran a/l S. Krishnan's suit filed against the Malaysian Bar in 2000 because he lacked the locus standi to institute his claim. (Please click here to download Justice Dato' Mohd Hishamudin's Judgment)

Justice Dato' Mohd Hishamudin bin Mohd Yunus also discharged the interlocutory injunction that was granted against the Malaysian Bar and pursuant to this discharge, damages (if any) were awarded to the Malaysian Bar to be assessed later.

However, Justice Hishamudin was of the view that his decision to dismiss the Plaintiff’s claim on the issue of locus standi alone is sufficient, and there is no necessity for him to deal with the other issues raised by the Plaintiff.

This matter arose out of the issuance of a letter dated 8 June 2000 by the Bar Council to the members of the Bar to consider resolutions to be tabled at an Extraordinary General Meeting of the Malaysian Bar, which was to be held urgently on 23 June 2000, to deliberate and pass appropriate resolutions relating to certain remarks made by the then de facto law minister, Datuk Seri Utama Dr. Rais Yatim against the Chief Justice at the time, Tun Eusoff Chin, particularly with regard to the picture on the internet showing Tun Eusoff Chin holidaying in New Zealand with lawyer, Datuk VK Lingam.

The proposed resolutions, inter alia, called upon the then Prime Minister to make a representation to the Yang di-Pertuan Agong pursuant to Article 125(3) of the Federal Constitution for the appointment of a tribunal to investigate into the conduct of Tun Eusoff Chin; or alternatively for the government to cause to be appointed a Royal Commission of Inquiry to investigate into the conduct of Tun Eusoff Chin and the implications of his conduct on the judiciary; and to make such recommendations as may be appropriate to ensure the confidence in the Malaysian judiciary is fully restored.

The Plaintiff, in his capacity as a member of the Malaysian Bar, commenced his action on 19 June 2000 seeking the following reliefs:

(i) a declaration that the purported notice is wrongful, illegal, invalid, null and void and/or contrary to the Legal Profession Act 1976 (LPA);

(ii) a declaration that the convening of the said general meeting is wrongful, illegal, invalid, null and void and/or contrary to the LPA;

(iii) a declaration that the said meeting and the said proposed resolution and the publication of the purported notice in the press are ultra vires the LPA;

(iv) a declaration that the public statement and the proposed resolution and the proposed general meeting and the publication of the purported notice in the press constitute contempt of court;

(v) a declaration that the said public statement and the said proposed resolutions and the said general meeting and the publication of the purported notice in the press constitute offences under the Sedition Act, 1948;

(vi) an injunction to restrain the Malaysian Bar either by themselves and/or their servants and/or their agents from holding the said general meeting on 23 June 2000;

(vii) an injunction to restrain the Malaysian Bar either by themselves and/or through their servants and/or their agents from holding or causing to be held any further similar meetings with the same and similar purposes that constitute contempt and/or an abuse of power;

(viii) damages; and

(ix) costs.

In response, the Malaysian Bar argued that:-

(i) the public statement and notice calling for the general meeting arose out of statements made by Datuk Seri Utama Dr. Rais Yatim, who was the de facto Minister of Law which were widely reported in local press;

(ii) the Malaysian Bar was entitled in law and in fact to issue and had duly issued the public statement and the EGM Notice;

(iii) the subject matter of the said notices was already in the public domain by virtue of its extensive coverage by local print media; and

(iv) it has long been recognised that the members of the Bar and the Bench are each an integral part of the administration of justice.

The trial was concluded on 7 April 2008. Counsel for the Plaintiff were D.P. Vijandran and Rajo Kuppan whilst the Defendant was represented by Raja Aziz Addruse, Ambiga Sreenevasan, Christopher Leong and Ranjit Singh, assisted by James Khong, Darren Teo and Lee Tze Jiun. However, Raja Aziz Addruse and Mr Lee Tze Jiun were not present today when the decision was delivered.

Relating to the case, Justice Hishamudin was of the view that this case is peculiar in nature. The Plaintiff who commenced the action, gave the impression to the Court that he is no longer interested in prosecuting his claim. The Plaintiff did not testify nor did he call any witness to give evidence to support his case. As a matter of fact, the Plaintiff was absent throughout the entire trial.

In contrast, the Malaysian Bar as the Defendant, called many witnesses to give evidence in support of its defence. According to the learned Judge, the number of journalists that were called as witnesses for defence was unprecedented. In the course of trial, Datuk Seri Utama Dr. Rais Yatim also came to testify on behalf of the Bar.

It is in the learned judge's judgment that the Plaintiff’s action against the Malaysian Bar must be dismissed with costs. His lordship held that this is because in the course of the trial, the Plaintiff has clearly failed to show to the Court that he has the locus standi to commence the action against the Malaysian Bar.

In so holding, Justice Hishamudin does not think that he needs to dwell into the cases cited by counsel of both sides or to go into complexity of law of locus standi. This is because of the peculiarity of the present case as his lordship has explained at the beginning of his judgment; that is, the Plaintiff has failed to come forward to testify or to offer any evidence at all. His lordship reiterated that the basic principle of legal burden of proof is on the Plaintiff to show that he has the locus standi.

In order to do that, His lordship was of the view that the Plaintiff must, as a first step towards establishing locus standi, show that he is aggrieved by the decision of the Bar Council to call for the Extraordinary General Meeting. Further, the Plaintiff must also show the grievance that he has is a ‘genuine grievance’, and he would suffer special damage if the Extraordinary General Meeting were to have taken place.

As such, His lordship stated that the Plaintiff must furnish evidence explaining why he is aggrieved, and in this respect, the Plaintiff has failed to do so before the Honourable Court.

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