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CIVIL APPEAL NO W-02-75 OF 2000

COURT OF APPEAL (PUTRAJAYA)

24 September 2004

RICHARD MALANJUM, HASHIM YUSOFF, TENGKU BAHARUDIN SHAH MAHMUD JJCA:

INTRODUCTION

1   There are five appeals before us. They arose from two civil suits, S2- 23-93 of 1999 ('the first suit') and S2-23-33 of 2000 ('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 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 defendants who did not appeal 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 May 2000, as having been made by Datuk Dr Rais Yatim, the Minister in the Prime Minister's Department'.

(a)   W-02-75 of 2004 (Appeal 75) which is against the judgment of the learned judge rendered on 10 November 2003 and effectively disposed of;

(b)  W-02-647 of 2000 (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 of 2000 (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 November 1999 at 10 am at the Grand Ballroom, Renaissance Hotel Kuala Lumpur. A notice dated 12 October 1999 ('the notice of 12 October 1999') containing a proposed resolution of even date ('the proposed resolution of 12 October 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 October 1999 and the proposed resolution of 12 October 1999.

11   The main purpose of the proposed EGM was to consider and to adopt if approved the proposed resolution of 12 October 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.

'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 2 November 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 9 November 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 November 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 deems 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 July 2000 both appeals were dismissed.

16   On 26 July 2000 the respondent filed an application under O 33 of the Rules for a preliminary issue to be tried. On 5 September 2000 the learned judge ordered the following issue to be tried, namely:

Whether the proposed Resolution dated 12 October 1999 as contained in the Notice dated 12 October 1999 and the proposed Extraordinary General meeting on the Malaysian Bar to be held on 20 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 November 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 November 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 7 June 2000 and amended on 8 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 June 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 para 7(c) hereinabove.

19   The respondent asserted that on 12 June 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 June 2000 from the Secretary of the Bar Council the respondent was informed that the proposed general meeting would proceed as scheduled.

21   And on 15 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 June 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 June 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.

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.

24   Civil Appeal W-02-521 of 2000 (Appeal 521) herein is an appeal against the granting of the interlocutory injunction.

The hearing

25   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

26   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.

(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 (ie the proposed EGM).

28   In relation to Appeal 647 Raja Aziz submitted that although the learned judge allowed the first suit to be tried on preliminary issue under O 33 he nevertheless erroneously proceeded to allow witnesses to be called.

29   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.

30   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 s 76(2) of the LPA.

31   Mr DP 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'.

32   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- a-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 s 76(2) of the LPA as providing the shield of secrecy of all proceedings conducted by the Bar Council; and

(vi)  the application of O 33 of the Rules.

Appeals 75 And 521

33   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

34   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 Arts 125 and 127 of the Federal Constitution ('the Constitution') and the third is on s 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.

35   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 ER 837; Rondel v Worsley [1967] 1 QB 443; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577.

36   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'.

37   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.

38   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.

39   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'.