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.
MIS
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.
MIS
