The Bar Council has been barred by the High Court from convening an extraordinary general meeting of the Malaysian Bar tomorrow.

Justice Dr R.K. Nathan this afternoon granted an injunction preventing the Bar from holding the EGM on the grounds that the allegations against Chief Justice Eusoff Chin which formed the basis of the decision to convene the meeting was unsubstantiated.

Nathan told a packed courtroom that as the Bar Council executive committee members had not verified whether de facto law minister Dr Rais Yatim, or anyone else, had made allegations against the Chief Justice prior to deciding to convene a meeting to discuss the allegations, there was no basis for such a meeting in the first place.

He said the Malaysian Bar, as first defendants in the case, had "listened albeit to unsupported statements allegedly attributed to the Minister in the Prime Minister's Department (Rais) and it rushed head on with its avowed aim of calling a meeting to discuss publicly, no doubt within its confines, the conduct and behaviour of the highest official of the judiciary".

"To my mind, there is no basis to call for an EGM on allegations attributed to someone who has not even been asked to verify the truth," said Nathan. "There is no need for me to ask the plaintiff to even go into the merits of his application."

Nathan held: "On this one basic preliminary issue alone, the first defendant has been unable to satisfy me. I therefore grant the plaintiff an order injuncting the first defendant or its servants or agents from convening the EGM fixed for June 23. I also order that the first defendant pay the plaintiff the costs of this application to be taxed."

Lawyer K. Raja Segaran had filed a suit against the Malaysian Bar and eleven Bar Council members seeking a declaration from the court that the meeting as well as a circular issued to council members and notice informing lawyers of the EGM is ultra-vires the Legal Profession Act, contemptuous ad seditious.

He also sought a declaration that the meeting and its proposed resolution to call for the establishment of a tribunal or royal commission of enquiry to investigate into allegations of impropriety against the Chief Justice were ultra-vires the said statute, contemptuous and seditious and would expose members of the Bar to contempt and sedition proceedings against them, and sought an injunction to stop the meeting from taking place.

When approached after the hearing, defence counsel Ambiga Sreenevasan said the defence had not decided on whether to seek an appeal on the decision.

"We have not arrived at a decision as yet. We will wait for our clients to meet and discuss whether they want to or not," she said.

Members of the Bar had filled the courtroom today and brought in extra chairs to accommodate themselves in the public gallery. Yesterday, Nathan refused to admit lawyers who did not have a place to sit in court and about 25 lawyers had to leave to make way for lawyers who were parties to the case and members of the Bar Council.

During the submissions of the parties to the case, Nathan had asked defence counsel Mohamad Ariff Yusoff if he had verified the fact that Rais had made allegations against the Chief Justice as stated in the news reports which formed the basis of their decision to call the EGM.

"To be fair to Datuk Dr Rais Yatim, has he in fact made any allegations against the Chief Justice since you have in your circular referred to the allegations made by Datuk Dr Rais Yatim?" Nathan asked.

"Have you written to Datuk Dr Rais Yatim for his confirmation that he stands by what is attributed to him as his report (as contained in) the affidavit of Haji Sulaiman Abdullah?"

Ariff answered that the defendants had not.

Nathan said the newspaper report in the New Straits Times and other press relied upon by the defendants as evidence of the fact that Rais had made those allegations constituted hearsay which is inadmissible in court.

Ariff contended that hearsay evidence in an affidavit of this nature was admissible under Order 41, rule 5(2) of the Rules of the High Court 1980 which states that "an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with sources and grounds thereof" and cited the case of Wee Choo Keong v MBF Holdings Bhd & Anor & Anor Appeal (1995) as the authority for his proposition.

However, Nathan held that although hearsay evidence was admissible in such situations as laid down by the judge in the case cited, the court is only bound to admit such statements if no injustice results from its admission".

Nathan said: "Great injustice would befall Datuk Dr Rais Yatim, the Chief Justice and all others reportedly having made statements whose quotations have been exhibited by the defendant, if they deny having made such statements.

"It would have been a simple process for the Malaysian Bar to have obtained a simple letter from Datuk Dr Rais Yatim stating that he stands by the report attributed to him."

Nathan added further that, as pointed out by counsel for the plaintiff D.P. Vijandran, the affidavit of Bar Council president Sulaiman Abdullah tendered as evidence in the proceedings did not contain a statement by him that he believes the contents of his affidavit are true.

"It seems to me that whilst the Malaysian Bar is making a serious allegation by calling for the suspension of the Chief Justice or for his removal, they are prepared to do so on mere unsupported allegations without even giving any thought to the principle of natural justice by seeking confirmation from Datuk Dr Rais Yatim if the contents of the report as contained in the newspaper cutting as attributed to him were actually spoken by him," said Nathan.

"There is no doubt that there are times when the press does not always report what was actually said," he added.

"In this case, it is obvious to me that what the Bar says is 'we say, that the newspaper says, that Dr Rais Yatim says, so and so ... this is hearsay thrice compounded'," said Nathan.

To defence counsel Ambiga Sreenevasan's contention that the Bar was not concerned with the truth or otherwise of the allegations but that they were defending the institution of the judiciary and the administration of justice by calling for a mechanism to verify the truth of the allegations against Eusoff, Nathan said that this idea was misconceived.

"If the Malaysian Bar is not concerned with the truth or otherwise of the allegations but want to have this meeting only to satiate their hunger for a public debate over the Chief Justice by wresting the discussion from the general public, and by doing so, trying to show that they are protecting the sanctity of the judiciary, it seems to me that this effort is totally misconceived," held Nathan.

Nathan had earlier dismissed the defence's preliminary objections with cost.

The defendant had objected to Nathan's hearing of this case on the grounds that: (1) the court had no jurisdiction to hear the case as all matters relating to injunctions ought to be filed at a separate division of the high court; (2) the judge should disqualify himself from hearing the case as he had heard an earlier case involving Raja Segaran and the Bar on similar grounds; and that (3) the judge should disqualify himself from hearing the case as his son is a member of the Bar.

Nathan said he had every right to hear the case as the court practice directions clearly state the authority of the court to hear cases of this nature and that while he had heard the earlier case, the issues which he was to decide upon were not entirely similar.

On the third objection, he said case law clearly states that a judge does not need to disqualify himself if the interest in question is a public interest such as this and not a private interest involving his son who is a member of the Bar.

D.P. Vijandran and P. Selvaraj represented the plaintiff while Ariff Yusoff, Ambiga Sreenevasan, Ranjit Singh, Christopher Leong and Gopal Sreevasan represented the Malaysian Bar.

The 11 other defendants were not parties to the injunction hearing as some of them had not been served with a notice to enter an appearance in the case.

Last month, Minister in the Prime Minister's Department Rais said in a radio interview in Australia that the government had intimated to Eusoff that socialising with a lawyer was "improper behaviour".

In response, Eusoff, whose photos with prominent lawyer V.K. Lingam during their New Zealand holiday six years ago were posted on the Internet since early 1988, has claimed that their meeting was coincidental.

Previous stories