The legal battle over the forged ballot papers in the Bar Council Elections for 2007/2008 in December last year began at the Kuala Lumpur High Court today with the affected parties trying to strike out the main suit.

The suit proper is by lawyer Foo Ton Hin against the Bar Council and its three election scrutineers - Inderjit Singh, Yaacob Hussain Merican and S. Radhakrishnan. He claims that the three had acted beyond the scope of the Legal Profession Act when they purportedly declared the election null and void before votes were counted.

Yaacob's lawyer, Zainur Zakaria in submitting before judge KP Gengadharan, said Foo's suit should be struck out because he had failed to establish his locus standi (legal standing).

"The plaintiff has no locus standi because he is not one of the candidates who stood for the said elections, but was just an ordinary member of the Malaysian Bar," Zainur said.

He said that Foo had also failed to show that he would suffer special 'injury' distinct from any possible 'injury' suffered by the rest of the Malaysian Bar resulting from the decision of the scrutineers.

Zainur said that as such Foo had no right to reliefs stated in his affidavit because he was not directly affected by the election which conducted on Dec 1.

"He (Foo) must establish that his legal interests are peculiarly affected, or if he suffered or will suffer special damage as a result of the defendant (scrutineers') action," he said.

'Wrongly deprived'

Zainur further argued Foo had failed to show that his interest as a voter at the elections would be 'substantially affected'.

He added that Foo had failed to show that 'he has been wrongly deprived of or has been refused something to which he is legally entitled to'.

Zainur said based on the above reasons, Foo had no legal right to compel the scrutineers to complete the counting and verifying of all ballot papers cast the Bar Council's elections.

"If the court were to grant such an order it would mean that each and every member of Malaysian Bar could dictate to the scrutineers as to what they should and should not do," said counsel.

Foo, of TH Foo and Associates, was one of the 3,370 voters who voted last month to elect 12 council members for the Bar Council's new term. However, the scrutineers discovered forged ballot papers, leading to police reports being lodged and the elections being declared null and void by them.

Foo is seeking a declaration that they had acted beyond the scope of the Legal Profession Act when they declared the elections void on Dec 1. He wants the court to instruct the scrutineers to verify the authenticity of the ballots cast by matching each against its counterfoil and excluding any that is not authentic.

Thereafter, he wants the defendants to declare the names of the persons elected according to Section 50 (5) of the LPA within seven days of the court order. In the alternative, Foo wants the court to order three partners of an international accounting firm or other persons to be appointed as scrutineers at the expense of the Bar Council.

It should then take all necessary steps to complete the elections and announce the names of those elected.

'Reasoned opinion'

Zainur, however, said that Foo's request was totally unsustainable in law. He said that no clauses under the LPA could authorise the scrutineers to verify and count the ballot papers.

"The process of authentication or verification of other possible forged ballot papers cannot be conducted simply on the basis of 'reasoned opinion' of the scrutineers," he argued.

He said that this was because detecting possible forged ballot papers required expertise which the scrutineers did not possess.

Counsel Lambert Rasa-Ratnam, representing the Bar Council, refuted Zainur's arguments, saying Foo had a legal standing in filing the case as he was a member of the Bar and had the right to question the election officers who were involved in the election process.

Gengadharan fixed Jan 19 to continue hearing arguments. Apart from the Bar Council and the three scrutineers, the other defendants in the case are Boniface Lobo, Dr Rafie Mohd Shafie, Hendon Haji Mohamed and Cecil Rajendra all of whom were candidates for the elections.