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ORIGINATING NOTICE OF MOTION NO 3 OF 1979

OCJ KUANTAN

26 January 1979

ABDUL RAZAK J

ABDUL RAZAK J: There has been an objection taken in this application to say that the applicant the Bar Committee Pahang has no locus standi but the Bar Council has. The Bar Committee of Pahang is seeking to bar the respondent an advocate and solicitor and member of the Pahang Bar from practising as an advocate and solicitor as he is an unauthorised person within the meaning of section 36(1) of the Legal Profession Act, 1976. They seek a declaration to that effect. The application was met at the hearing by a preliminary objection by the respondent to set it aside for the reason I have just stated. The respondent also says that the application has not shown any merit because the affidavit supposedly in support is inadmissible being sworn before the originating motion was filed. I do not think for the reasons which I shall state I need to deal with this point.

It would appear to me therefore that if the preliminary objection succeeds the application and all the relief set out under it, will also, for the time being at least, fall to the ground. I will explain in clearer terms what this in effect means.

The contention of the respondent was that the Bar Council and not the Bar Committee is the person with the capacity or authority to sue in this matter and in all cases. In this respect I was referred to section 41(1) and (2) of the Act for this authority. Section 41(1) reads--

"41(1)  There is established a body corporate to be called the 'Malaysian Bar'."

Sub-section (2) reads--

"41(2)  The Malaysian Bar shall be a body corporate with perpetual succession and a common seal, and with power subject to this Act to sue and be sued in its corporate name and to acquire and dispose of property both movable and immovable and to do and to perform such other acts as bodies corporate may by law perform."

"57(j)  to institute, conduct, defend, compound or abandon any legal proceedings by and against the Malaysian Bar or its officers or otherwise concerning the affairs of the Malaysian Bar and to compound and allow time for payment or satisfaction of any debts due or of any claims or demands made by or against the Malaysian Bar."

The applicant's counsel on the other hand, refers me to section 73(ii) which reads as follows--

"73(ii)  to promote and safeguard the interests of advocates and solicitors who are members of the State Bar;"

Counsel says it is the duty of the Committee to safeguard the interests of its members by filing an action against a recalcitrant member.

But two things must first of all be put straight. First that it cannot be but common ground that whatever power the Committee has to act on its own behalf as far as legal proceedings are concerned must be found in the Act itself and secondly the intention of the Act can only be gathered from the language of the Act and by reading it as a whole. One cannot help feeling that from the force of counsel's argument he is urging that the Bar Council and the Bar Committee are separate entities having separate rights and duties and having a life of their own. If that is so it is therefore natural to assume that the legislature in making provision on a matter in one, would also make provision for the same matter in the other. In so far as the Bar Council is concerned there can be no doubt that it has the capacity to sue and be sued because section 41 expressly so provides. It has also the power to do so because section 57(j) gives it that power. We can therefore say that in so far as the Bar Committee is concerned that if the legislature had intended to give a similar power and capacity that it would have similarly so legislated, but clearly looking at section 73 no such provisions mutatis mutandis had ever been made. Consequently if it is pointed out that under sub-section (ii) the Committee is given the power to promote and safeguard the interests of its members it cannot be but construed to mean that it can do so provided, whatever action is taken, falls short of proceedings in court. It seems to be the clear implication therefore that in so far as taking legal proceedings in court is concerned the Bar Council is solely authorised to do so. Indeed that must be the necessary implication if section 57(e) is to have effect which reads--

"57(e)  to represent members of the Malaysian Bar or any section thereof or any particular member in any matter which may be necessary or expedient;"

It seems to be the clear implication therefore that the Bar Committee must necessarily act through the Bar Council in matters of legal proceedings in court.

I would have no hesitation therefore in saying the maxim expressio unius est exclusio alterius must apply here. But one thing must be said however. That what has been said so far goes only to support the view that the right to sue or be sued in so far as the conduct of the members of the Malaysian Bar and all matters pertaining to it are concerned is that of the Bar Council only and not the Bar Committee, which must necessarily mean on general principle that it does not prevent the Council, if it chooses, to permit the Bar Committee to use its name by related action. That would I imagine be an equitable construction if only to save the cost of the Bar Council. All I need to say now therefore is that the action of the Bar Committee clearly is not related to the Bar Council and therefore for present purposes has no locus standi. It is open therefore now to the Bar Council to resolve whether it wishes to take up the issue in this court in place of the Bar Committee or for the Bar Committee to do what is necessary to restore itself. For the moment I will dismiss this application with liberty to the parties to apply.

Order accordingly.

SOLICITORS:

S Sivasubramanian; Au Ah Wah & Co.

COUNSEL:

S Sivasubramanian for the applicant.

Joseph Au Kong Weng for the respondent.