Malaysian Bar's difficulty to fulfill the one-fifth quorum requirement at its Annual General Meetings (AGM) as its membership swelled cannot justify the argument that the quota requirement is no longer a legal necessity, the Court of Appeal heard today.

Urging the court to dismiss the Bar's appeal against a High Court ruling which declared the Bar's 59th AGM that was held in the absence of a quorum 'null and void', senior lawyer Zainur Zakaria said the Bar cannot now change its legal interpretation on the issue to solve the nagging problem it is facing.

"Since 1976 no council member had ever said that the quorum requirement stated under section 67 of the Legal Profession Act 1978 is not applicable to AGM or that it only applies to EGM (Extraordinary General Meeting)," said Zainur.

"We have all accepted that this (quorum) requirement applies to all general meetings - both AGM and EGM - equally. For the last 28 years that is what we understand until one morning someone said that we were wrong in our interpretation of the law and that we must change."

He said that nobody had complained when the quota requirement was amended from 50 members to one-fifth because then it was still "a comfortable number".

"No one complained until the number grew and we face the difficulty of obtaining quorum. But difficulty is not a legal justification to say that the quorum is not needed," said Zainur who is representing the respondent Edward Louise Van Burle who successfully took the Bar Council to task for contravening the quorum requirement stated in the LPA.

Decision on July 15

He was submitting before three-member panel of judges - Denis Ong, Abdul Aziz Mohamad and James Foong- who had fixed July 15 for decision. Lawyers representing the Bar had submitted their arguments on Tuesday.

On April 27, High Court judge Raus Sharif allowed Van Buerle's application and declared that the AGM held on March 19 "completely abortive, null and void and all acts or decision to have been done, taken or made at the meeting are accordingly nugatory and invalid".

The judge also granted Van Buerle's application for declarations that the election of the 2005/2006 office bearers of the Bar Council as "invalid" and that a new AGM be held within 30 days from the date of judgment.

Raus - who also allowed a stay of execution which enables the office bearers to act as caretakers in managing the Council - in his decision said that he was unable to subscribe to the Bar's contention that the quorum requirement was applicable to general meetings but not to the AGM.

"I am of the view that the term general meeting of the Malaysia Bar refers to both annual general meeting under Section 64 and the general meeting under section 65. The fact that the meeting is termed as annual general meeting does not make it any less a general meeting," he said.

Quorum: One fifth or 51 percent?

In his arguments today, Zainur also urged the court to dismiss the Bar's understanding of the quorum requirement as " whomever present at the AGM."

"They want the court to say that the requirement quorum for an AGM shall not be less than two. This is what they want and I believe that we all have difficulties in accepting this proposal."

He said if the Bar's submissions that the quorum requirement does not apply to AGM and that only two members can validate the meeting are baseless as there was no expressively provisions to support their contention.

"There is nothing in the LPA that says that two can constitute a quorum. If their claim that there is an absence of quorum requirement for AGM - which we disagree - is to be accepted, then we have no choice but to rely on the common law.

"And what does the common law says on quorum? It says that quorum mean majority of the members which means 51 percent... So which one do they want - one fifth or 51 percent?"

Negating the Bar's argument that it was the parliament's intention not to impose the quorum requirement for AGM, Zainur handed the parliament Hansard dated Jan 13, 1970 where Hamzah Abu Samah as the then law minister who spoke on necessity to increase the quorum requirement.

He said the then minister said there was a need to increase the quorum requirement to encourage more lawyers to attend the meeting and thus show interest in the council affairs, adding that the Bar's contention would only go against this intention.

"If only two can constitute the AGM, they why should I bother to go? The president and the vice-president alone can decide for the entire Bar."

He also warned the court the danger in accepting the legal interpretation on quorum as proposed by the Bar.

"If they are allowed, it would be opening doors to danger where two, five or 10 members will be allowed to make decision on behalf of the entire Malaysian Bar. Can this court allow such an important, special and august body be allowed be represented by one or two members?"

Zainur appeared with V Arivanandhan while the Bar was represented by Sulaiman Abdullah, Cecil Abraham, Tommy Thomas and Robert Lazar.