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CIVIL APPLICATION NO 08-21-89

SUPREME COURT (KUALA LUMPUR)

28 April 1989, 29 April 1989

HASHIM YEOP A SANI CJ (MALAYA), MOHAMED YUSOFF AND GUNN CHIT TUAN SCJJ

HASHIM YEOP A SANI CJ (MALAYA) (delivering the judgment of the court): In this proceeding the applicant, the Malaysian Bar, is seeking leave to apply for an order for the committal to prison of Tan Sri Dato Abdul Hamid bin Omar, the respondent, for alleged contempt of court committed on 2 July 1988 where it is alleged that the respondent attempted to prevent, frustrate and interfere with the sitting of the Supreme Court of Malaysia.

The background facts which resulted in the present proceeding are exhaustively set out in the report of the tribunal appointed by His Majesty the Yang di-Pertuan Agong under art 125(3) of the Federal Constitution, a copy of which was annexed to the affidavit of Manjeet Singh Dhillon, secretary of the Bar Council of the Malaysian Bar. For the purpose of this judgment the background facts may be briefly stated as follows. At the material time Tun Salleh was suspended as Lord President and was facing an enquiry before a tribunal appointed under art 125(3) of the Constitution. On 26 August 1988 Tun Salleh made an application to the High Court in Kuala Lumpur (Originating Motion No R8-32-79-88 for leave to apply for an order of prohibition against members of the tribunal of whom the respondent was one. That application was partly heard in the High Court before Mr Justice Dato Ajaib Singh who, on the morning of 1 July 1988, adjourned the matter to the afternoon; and in the afternoon adjourned it to 2 July 1988 for decision. When the matter came for decision on 2 July 1988 the learned judge in a written judgment decided to further adjourn the same to 4 July 1988 to enable the Attorney General to make submissions. The learned judge refused an oral application for a limited stay until 4 July 1988. Shortly thereafter leading counsel for Tun Salleh together with some other lawyers saw a Supreme Court judge, Tan Sri Wan Suleiman, and requested him to convene a special sitting of the Supreme Court to hear an application to preserve the status quo. Supreme Court Judge Tan Sri Wan Suleiman, purporting to act under s 9(1) of the Courts of Judicature Act 1964, thereupon without the knowledge and consent of the respondent who was then Acting Lord President convened a special sitting of the Supreme Court consisting of five judges. The sitting commenced at about 12.50 pm and counsel for Tun Salleh made an oral application for stay. After a hearing which lasted for about 30 minutes and a short adjournment for deliberation, the five judges unanimously made an order for limited stay restraining the tribunal from submitting its report, recommendation and advice to His Majesty the Yang di-Pertuan Agong until further order.

In the present application for leave the particulars of the alleged acts said to constitute the contempt were set out in the statement pursuant to O 52 r 2(2) and Rules of the Supreme Court, r 4 appearing under 'grounds' as follows:

(a)   on the 2nd day of July 1988, the respondent being a party to Kuala Lumpur High Court Originating Motion No R8-32-79-88 and anticipating an appeal or application by the opposite party in the said proceedings to the Supreme Court instructed the staff of the Registry of the Supreme Court that in the event of such appeal or application being filed no action should be taken without directions from the respondent;

(b)   subsequently, on learing that an application as anticipated was actually filed, the respondent gave instructions to the Chief Registrar of the Supreme Court that the court rooms should be kept closed, that the staff should not assist in such sitting, that neither the Chief Registrar nor any other senior assistant registrar was to sign any order that might be made and that the court seal should not be made available.

One of the points raised before us in this proceeding is the locus standi of the applicant. In our view it is questionable whether the applicant has locus standi notwithstanding s 42(1)(a) of the Legal Profession Act which states that the purpose of the Malaysian Bar shall be 'to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.' It is only recently that this court had dealt with the law of locus standi that should be applied in this country and this is laid down in the majority judgment in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12. Briefly the position as to the law of locus standi in this country is as follows:

(1)   The principle to determine the locus standi of a party in a proceeding is as laid down in Boyce v Paddington Borough Council [1903] 1 Ch 109 as approved by the House of Lords in Gouriet v Union of Post Office Workers & Ors [1978] AC 435, [1977] 3 All ER 70.

(2)   The rule as to locus standi applicable in Malaysia is that accepted in England before the enactment of O 53 of the English Rules of the Supreme Court. Since we have not accepted O 53 and its statutory underpinnings (ie s 31 of the Supreme Court Act) there is no justification to depart from the rule of locus standi accepted by the highest court in England prior to O 53.

Ours is a conservative approach to locus standi but that is the law as it stands now. Until a change is made in the law a plaintiff must first establish that he qualifies as a person entitled to be a party to the proceeding. In a proceeding for contempt the qualification of 'sufficient interest' in Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd & Ors [1986] 2 MLJ 193 must be read together with the majority judgment in Lim Kit Siang [1988] 2 MLJ 12.

However, even assuming for a moment that the applicant has locus standi having regard to the facts set out in the statement, affidavit and the report of the tribunal annexed to the affidavit we do not consider this to be a proper case where leave should be granted. We say this for the following reasons.

The tribunal dealt with the sitting of the five Supreme Court judges on 2 July 1988 and after considering ss 38 and 39 of the Courts of Judicature Act came to a finding 'that the Supreme Court which sat on 2 July 1988 was convened in contravention of ss 38 and 39 of the Courts of Judicature Act' and in the result 'the court was not a lawfully constituted court and so has no jurisdiction to make the purported order for interim stay': see pp 6 to 9 of the report of the tribunal. Again at p 73 of the report the tribunal found that the sitting of the five judges was 'illegal and without jurisdiction'.

We have ourselves examined ss 38 and 39 of the Courts of Judicature Act and we have come to the same view, ie the sitting on 2 July 1988 was in contravention of ss 38 and 39 of the Courts of Judicature Act. In our view it is the Lord President alone or any person acting as Lord President who is entitled to convene and to empanel judges to constitute the Supreme Court for any sitting, whether scheduled or unscheduled. The powers of the Lord President or any person acting as Lord President under ss 38 and 39 of the Act are express statutory powers which cannot be exercised by others unless properly exercised under s 9(1) of the Act during illness or absence from Malaysia or owing to any other cause when the Lord President is unable to exercise the functions of his office. We read the words 'any other cause' in s 9(1) to relate to physical inability in the sense that the Lord President is unable to perform his functions.

There was thus no lawful sitting of the Supreme Court on 2 July 1988. So we have to ask the ultimate question -- contempt of what? Indeed it may even be argued that the respondent was perfectly entitled to prevent an unauthorized sitting of the Supreme Court in contravention of ss 38 and 39 of the Courts of Judicature Act. What amounts to contempt are acts done calculated to obstruct or interfere with the lawful process of the court. See also the speech of Lord Wilberforce in Raymond v Honey [1982] 1 All ER 756.

The facts set out in the affidavit on behalf of the Malaysian Bar and the report of the tribunal would also seem to contradict the allegations contained in the grounds. The judges went into court at 12.50 pm which only means that the doors of the court were not closed. They sat for about half an hour assisted by the staff of the registry although the Chief Registrar was absent. After the hearing they granted an order which bore the seal of the Supreme Court which only means that the seal was made available and not denied from them. In our view all these would compel us to come to one conclusion only and, that is, the instructions even if issued were never implemented.

Finally there has certainly been an inordinate delay in making the application. The resolution of the Malaysian Bar to institute proceedings for contempt was passed on 19 July 1988. The application for leave was filed on 24 April 1989. There was no explanation for the delay in the affidavit of the secretary of the Bar. The allegation of contempt is a serious matter and should be pursued within a reasonable time. The delay must be explained. In our view a lapse of nearly nine months unexplained in the affidavit is not reasonable. Motion dismissed.

Order accordingly.

SOLICITORS:

Suhaimi Khor Zulkifli & Chang; Lee Perara & Tan; Jackson & Masacorale; Fernandez & Co; Nashir Johal & Co; CL Sequerah & Co.

COUNSEL:

Raja Abdul Aziz Addruse (S Theivanthiran, Lee Min Choon, Matthias Chaus, Gurbachan Singh Johal, Collin Sequerah and Jeffrey Fernandez with him) for the applicant.

Tan Sri Abu Talib bin Othman, Attorney General, Malaysia ( T Selventhiranathan, Senior Federal Counsel, with him) for the respondent.