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Wednesday, June 18, 2008

Of Justice And The Rule Of Law

Justice Dato’ Hishamudin Mohd Yunus of the Kuala Lumpur High Court today once again displayed the sterling qualities that distinguish him as a judge. In delivering his judgment in the case of Raja Segaran v The Malaysian Bar, he unrelentingly lived up to his reputation as a judge of courage and integrity.

In 2000, the fact of the now notorious trip to New Zealand of Tun Eusoff Chin, the then Chief Justice, and V K Lingam became know to the Bar Council as a result of evidence having come to light in a defamation case involving the Asian Wall Street Journal. The clear implication of the evidence, if credible, was that the Chief Justice had been more closely associated with V K Lingam than had been thought and that this relationship may have been exploited to an improper end.

Quite understandably, the Bar Council reacted and moved to urgently convene an Extraordinary General Meeting of the Bar to consider what it is that had to be done. It was of great concern that the matter be dealt with urgently and transparently to avoid any undermining of the institution of the Judiciary and the administration of justice. The Bar Council quite correctly considered itself and the Bar under a legal duty to take appropriate steps but, again quite correctly, thought it best to leave the decision of what to do to the full membership of the Bar. It should be said that based on proposed resolutions which had intended to be moved at the proposed EGM, the Bar Council aimed to secure a resolution of the Bar calling for a Royal Commission of Enquiry.

A lawyer named Raja Segaran took issue with the proposed course of action and demanded that the Bar Council desist from proceeding with the EGM. His complaint was primarily that the proposed meeting would be contemptuous of the Judiciary and seditious, and was in any event a course of action that Bar did not have legal power for. The Bar Council refused to accede to Raja Segaran’s demands as a consequence of which Raja Segaran filed an unprecedented legal action against the Bar, the Bar Council and its then President. This was Raja Segaran 1.

Leaving aside the question of law as to whether Raja Segaran had the standing in law to file the legal action in the first place, the primary issues went to the freedom of association, and the incidental right to self-regulate, and the freedom of expression of the Bar and its members. One would have thought that the matter was open and shut: the Bar undoubtedly had the requisite power to proceed with a discussion of the matter with a view to making the necessary recommendations in law.

The High Court did not share this view. It granted an injunction against the Bar. The Court of Appeal affirmed this order on the incredible premise that the conduct of judges could only be discussed in parliament. Tun Ahmad Fairuz, then judge of the Court of Appeal, delivered the judgment of the Court of Appeal. The Federal Court declined leave to appeal on the basis that the application for leave to appeal “had no merit” notwithstanding the self-evident matters of constitutional significance.

During this time, Tun Eusoff Chin was the Chief Justice.

The matter went to trial. Significantly, despite the trial having been closed and the matter reserved for judgment, Raja Segaran then applied for leave to discontinue the action. The High Court allowed the discontinuance. The Court of Appeal took a different view and directed the High Court judge to deliver his judgment. This took some time but when judgment was delivered, the Bar lost. In the period from the close of trial to the delivery of the judgment, Tun Eusoff Chin retired, Tun Dzaiddin became the Chief Justice and retired, and Tun Ahmad Fairuz became the Chief Justice. It was during his tenure that the Court of Appeal affirmed the trial judgment. Whether this had any bearing on the way things played remains a matter of speculation though the revelations during the Lingam Commission proceedings and the recommendations of the Commission are suggestive. Whatever the case, the line of reasoning adopted by the Court of Appeal leaves much to be desired.

For a while it seemed that the story would end that way, with the Judiciary having seemingly insulated itself from criticism and reproach. The Bar could do so only at the risk of being found in contempt or guilty of sedition. There was a second part though, one which Justice Hishamudin’s judgment brought to a close yesterday with his judgment.

Shortly after Raja Segaran 1 was commenced, the then de facto Law Minister Datuk Seri Utama Dr Rais Yatim gave an interview to the Australian Broadcast Corporation in which he described how it had been intimated to Tun Eusoff Chin “in no uncertain terms” that the holiday in New Zealand constituted “improper behavior”. This sparked off a public exchange in the media between Tun Eusoff and Dr Rais with other public figures weighing in, predominantly in favour of Dr Rais’ position.

The Bar Council took a decision that this fresh development was sufficient basis for it to make fresh moves towards calling for a Royal Commission of Enquiry. It called for a fresh EGM of the Bar to discuss these developments. Raja Segaran commenced fresh proceedings and sought a further injunction. This was Raja Segaran 2, the case in which Justice Hishamudin delivered his judgment.

In the forthright and direct style that the Bar has come to expect of His Lordship, Justice Hishamudin firstly found that Raja Segaran had not established that he had been specifically aggrieved by the decision to convene the EGM, in part by reason of his having failed to appear at the trial to give evidence, Raja Segaran did not have the requisite standing in law, or locus standi, to commence the proceedings.

Justice Hishamudin then went on to observe that he would be failing in his duty as a judge if he did not touch on a matter that he considered to be of constitutional importance. Considering the same constitutional provisions that had been relied upon by the Court of Appeal in the Raja Segaran appeals, the judge concluded that the reasoning of the Court of Appeal was “far-fetched” as the constitutional provisions relied upon by the Court of Appeal in the said appeals to shut out any discussion by the Bar only went so far as to prohibit parliamentary debate on judicial conduct without a substantive motion. Significantly, Justice Hishamudin observed that the “restriction or the prohibition is not imposed on the general public” and that he “could not fathom how such a conclusion (with its startling consequences) can be arrived at by the Court of Appeal.”.

Rightly so. The Federal Constitution guarantees the freedom of association and expression. The Legal Profession Act enumerates the object of the Malaysian Bar. These can be resolved to one primary object: upholding the rule of law. The conduct of Tun Eusoff Chin and V K Lingam was clearly questionable and, if left unaddressed would have undermined the administration of justice. The Lingam Commission report has vindicated the Bar’s position. We would have not got there if the Bar had not marched and if it had not convened an EGM to underscore its demands for a commission of enquiry.

The Lingam Commission report was however merely that, a report. The recommendations regrettably do not have the force of law and matters have been left to the Attorney General. We have yet to hear of what steps have been taken and what the Attorney General proposes to do. One could not be faulted for thinking that nothing much is going to be done perhaps in the hope that time will dim our collective memory of events.

And perhaps it will. Though the promises of reform have been welcome, they they do not indicate that for those of us who champion the rule of law, the struggle has ended or that victory has been secured.

It for this reason that the Bar and this nation owe a debt of gratitude to Justice Hishamudin, not only for having had the courage to state the obvious but for having stated for posterity what needed to be said. In doing so, he has reminded us that though judges and lawyers come and go, though regimes change, the rule of law remains if we wish it to.



Anonymous said...

Indeed, regarding the gratitude the nation owes to Justice Dato’ Hishamudin Mohd Yunus.

As a layperson to law, I see many cases of national and fundamental importance go against the simple logical judgment or conclusion. For me, it created the almost hopeless state of our judiciary. But occassionally, I noted with delight some judgments that appear to be "out of the world" of Malaysian judiciary. Upon some research, I realised that these cases were all presided by the same judge, which is none other than Justice Hishamudin Mohd Yunus. Cases I have on record include (1) Abdul Malik Hussin case against government's torture in his ISA detention; (2) libel case by VK Lingam vs. International Commercial Litigation journal; (3) ISA detention case of Abdul Ghani bin Haroon vs. Ketua Polis Negara; (4) libel case against author Khalid Jafri in his book 50 Dalil Mengapa Anwar Tak Boleh Jadi PM.

Justice Hishamudin becomes a glimmer of hope for the Malaysian judiciary. More so if you imagine he has to stand firm against the mainstream, forgo many promotion opportunities and sustain pressure from his surrounding.

Malaysians will always remember you!

Anonymous said...

The government has got it right to have the RC. I sincerely hope that the forces pushing for reform will be more resilient. In the midst of every political chaos, the hope to uphold ideals such as the rule of law should never be muddled.

Donplaypuks® said...

Justice Hishamuddin is a Judge who makes us feel proud that we have one such as him the echelons of our much tainted Judiciary.

And the real beauty of it all is that he has proven himself consisitently to be a man of the highest integrity, from that time several years ago when he ruled against ISA.

He has answered the question of 'Who guards the Guardians.' If public disquite about a bent judiciary or peculiar legal decision cannot be voiced without being charged with contempt or Sedition, then we are dead!

It was established as long ago as in the 19th century by Zola in his thrilling 'J'accuse' that no judge is above the law or public opprobium.

The Raja Segaran's of this world, please take note. In the end, Judges, Prime Ministers and elected are answerable to us, The People!!

Anonymous said...

how many of justice hishamudin is left in the judiciary? perception is that there are more fairuz around than such upright judges, no?
may God always give Justice Hishamudin the strength to uphold the law without fear or favour. As for fairuz and eusoff, enough said. Let them live with their own conscience, if there is any left. And the "CORRECT CORRECT CORRECT" episode will never be repeated itself.
And will the PM in waiting ensure that laws are amended back to the days before Mahatir to ensure that judiciary will remain always independent? The nation has sufferred enough at the hands of a dictator who broods no opposition.

Mr. Smith said...

Raja Segaran is surely the fall guy sent to defend, not the judiciary, but the scums in it.
All the previous judgements fall flat in the face on this one by Justice Dato Hisham (May God bless and protect him against marauding wolves around him). I hope he will pay hefty costs.
Going by Raja's action, any member of any oganization can go to court to stop his legitimately elected office bearers from holding an EGM .
As to the actions against the scums mentioned in the Lingam inquiry, nothing will happen unless Gani is removed.
What is the difference between Gani and Raja?

Steven Foong said...


I have a question that I hope you will enlighten a layperson like myself on:

Since Dato' Hisham sits in the High Court, was he proper to question the constitutional basis from which the Courts of Appeal (a higher court) made its decision?


Anonymous said...

i am no legal eagle but if the judgement is so manifestly wrong, its not right to follow whether by law or conscience.
malik, your comments too pls.

Old Fart said...

What really is Raja Segaran's beef? Or should I ask, whose poodle is he? Obviously he is somebody's poodle as that somebody obviously has gained from the delay caused by the injunctions that he secured through slime balls within the system.Since that somebody does not seem to point to this Raja Segaran, he obviously acted the poodle to that somebody. Obviously Raja can claim otherwise. That is his privilege.

Malik Imtiaz Sarwar said...


anonymous @ 11.34 pm is right. If a judgment is patently wrong, a lower court is not bound by it under what lawyers refer to as the "per incuriam" rule (by mistake).

Justice Hishamudin's observations are also just that, observations. The legal reasoning underlying the dismissal of Raja Segaran's suit was the claimant's lack of legal standing. The observations of the judge pertaining to the right to discuss judicial conduct do not, strictly speaking, go to the crux of his decision. Notwithstanding, the observations are of great value.


Anonymous said...

"We would have not got there if the Bar had not marched and if it had not convened an EGM to underscore its demands for a commission of enquiry."

Can you enlight me also as a layperson:

1. Was the march in Sept 2007, being endorsed by an AGM or EGM of the Bar?
2. Was that for the calling of more involvement of Bar in the suggestion or appointment of Judges than specifically on the Lingam case?
3. Were most members of the RCI being critized as unappropriate before the march? And, therefore, was the march designated or being awared by all members, at least those in the march, to accept the nomination of the RCI? Was the statement made at the end of the march "Give him a Chance" a personal or an official statement?
4. Were the procedures so conducted meeting the minimum expection of law with consideration of professional ethics and related?
5. Should RCI be conducted on basis of Police, AGA and Bar investigtion reports? And, had these been done?

To me, it is sad that we have only a "crippled" judge (with due respects) with circumstances that he can only use "words" to give observations and not "sword" to cut the evils!

9 or more years on a "show hand" play between judiciary and Bar. What are we going to expect on the Lingam case or other "sweat and blood" cases?

A SAD day to see only ONE judge can only help to put a knot on the bandage of those deadly wounded! A RIP! At least the 4th one as referred to the posting of pratamad.