Thursday, June 22, 2006

Human Resource Management Tale1

One day while walking down the street a highly successful Human Resources Manager was tragically hit by a bus and she died. Her soul arrived up in heaven where she was met at the Pearly Gates by St. Peter himself.

"Welcome to Heaven," said St. Peter. "Before you get settled in though, it seems we have a problem. You see, strangely enough, we've never once had a Human Resources Manager make it this far and we're not really sure what to do with you."

"No problem, just let me in," said the woman.

"Well, I'd like to, but I have higher orders. What we're going to do is let you have a day in Hell and a day in Heaven and then you can choose whichever one you want to spend an eternity in."

"Actually, I think I've made up my mind, I prefer to stay in Heaven", said the woman

"Sorry, we have rules..."

And with that St. Peter put the executive in an elevator and it went down-down-down to hell. The doors opened and she found herself stepping out onto the putting green of a beautiful golf course. In the distance was a country club and standing in front of her were all her friends - fellow executives that she had worked with and they were well dressed in evening gowns and cheering for her. They ran up and kissed her on both cheeks and they talked about old times. They played an excellent round of golf and at night went to the country club where she enjoyed an excellent steak and lobster dinner.

She met the Devil who was actually a really nice guy (kind of cute) and she had a great time telling jokes and dancing. She was having such a good time that before she knew it, it was time to leave. Everybody shook her hand and waved goodbye as she got on the elevator.

The elevator went up-up-up and opened back up at the Pearly Gates and found St. Peter waiting for her.

"Now it's time to spend a day in heaven," he said. So she spent the next 24 hours lounging around on clouds and playing the harp and singing. She had great time and before she knew it her 24 hours were up and St. Peter came and got her.

"So, you've spent a day in hell and you've spent a day in heaven. Now you must choose your eternity,"

The woman paused for a second and then replied,

"Well, I never thought I'd say this, I mean, Heaven has been really great and all, but I think I had a better time in Hell."

So St. Peter escorted her to the elevator and again she went down-down-down back to Hell. When the doors of the elevator opened she found herself standing in a desolate wasteland covered in garbage and filth. She saw her friends were dressed in rags and were picking up the garbage and putting it in sacks.

The Devil came up to her and put his arm around her.

"I don't understand," stammered the woman, "yesterday I was here and there was a golf course and a country club and we ate lobster and we danced and had a great time. Now all there is a wasteland of garbage and all my friends look miserable."

The Devil looked at her smiled and told...

"Yesterday we were recruiting you, today you're an Employee.."

Contributed by : Yongsn

Thursday, September 29, 2005

Fraudster gadget at Bank ATM

A team of organized criminals are installing equipment on legitimate bank ATM's in at least 2 regions to steal both the ATM card number and the PIN. The team sits nearby in a car receiving the information transmitted wirelessly over weekends and evenings from equipment they install on the front of the ATM (see photos). If you see an attachment like this, do not use the ATM and report it immediately to the bank using the phone on the front of the ATM.

The equipment used to capture your ATM card number and PIN are cleverly disguised to look like normal ATM equipment. A "skimmer" is mounted to the front of the normal ATM card slot that reads the ATM card number and transmits it to the criminals sitting in a nearby car.

At the same time, a wireless camera is disguised to look like a leaflet holder and is mounted in a position to view ATM PIN entries.

The thieves copy the cards and use the PIN numbers to withdraw thousands from many accounts in a very short time directly from the bank ATM.

Equipment being installed on front of existing bank card slot.

The equipment as it appears installed over the normal ATM bank slot.

The PIN reading camera being installed on the ATM is housed in an innocent looking leaflet enclosure.

The camera shown installed and ready to capture PIN's by looking down on the keypad as you enter your PIN

Thursday, September 22, 2005

Bitching about White Ants

You don’t know they are there until it’s too late.

They are the unseen enemy.

Each year, the damages caused by this insects are more than the total damages from floods and fires combined.

On September 11, 2005, teacher Chan Boon Heng of SRJK (C) Keat Hwa (K) in Jalan Seberang Perak dies of internal injuries when he plunged 15 feet down due to the collapse of the plywood floorboard in the school which had been infested by white ants.

Chan was at the school’s office located on the first floor at 7.30am when the rotting wooden plywood floorboard suddenly gave way, and he plunged 15 feet down onto the hard cement floor below. He was rushed to a nearby private hospital where he died of internal injuries.

As our governmental system are basically reactive, on September 20, Education Minister Datuk Seri Hishamuddin announced that the government has now approved RM10 million for repairs and upgrading of schools following the death of teacher Chan Boon Heng.

Hishamuddin said the number of schools that needed repair were huge which is why schools deemed “really dangerous” would be given priority. He said he did not blame anyone for the insufficient allocation.

“We have already spent a lot on equipments and computer laboratories."

So, we now hear the mourning over the fact that billions are spent building computer labs, installing Astro and paying multi-millions for the TV programmes and building hostels worth hundreds of millions; but no money to repair and upkeep schools, in particular, national-type schools and religious schools, and no money to repair delapidated bridges in kampungs too.

What caused the plywood floorboards to rot and yet is not visible to the naked eyes?

Termites! White-ants!

Read more here

Balanced Scorecard for the Unbalanced

As requested by my readers, here is a synopsis of Balanced Scorecard.

Harvard Business Review published the article “The Balanced Scorecard – Measures That Drive Performance” which was jointly written by Dr. David Norton (the then CEO of Nolan-Norton and now President of Balanced Scorecard Collaborative-BSCol) and Professor Dr. Robert Kaplan of the Harvard Business School.

The article summarized the findings from an in-depth study of 12 manufacturing and service companies that was carried out in 1990.

The research program set out to design a new approach to performance measurement that dealt with a growing managerial problem – that accounting, or financial, measures were increasingly being found wanting in assessing and managing organizational performance.

Norton and Kaplan premised that what business leaders required was a new mechanism with which it can take a holistic view of organizational performance, thus, providing more than the lagging financial metrics on which most organizations had based their decisions.

Consequently, Norton and Kaplan introduced a new performance measurement framework, which they anmed it: The Balanced Scorecard

Click here to read more on Scorecard

Saturday, August 06, 2005

Contempt of Court

Current Trends in Malaysian Public Law Contempt of Court :
Freedom of Expression and Rights of the Accused

© Chew Swee Yoke
Advocate & Solicitor
S.Y. Chew & Co.

11th Malaysian Law Conference
8-10 November 2001
Kuala Lumpur, Malaysia


1. Between 1991 and 1998, the Bar Council noticed a marked increase in the exercise of the Court's discretion against lawyers, in which there were several cases of custodial sentences being imposed in addition to fines while several other lawyers were placed under threat of contempt proceedings . At one point, the Chief Justice issued a statement that contempt powers could be invoked against lawyers who failed to attend court on the scheduled date of hearing.

2. Against this background, the Bar Council Special Committee on Contempt Against Lawyers was set up in January 1999 which conducted a survey of cases of contempt involving lawyers in the Commonwealth from 1996 onwards. The end result was a Memorandum on "The Need to Define the Law of Contempt and To Provide for Certainty in Its Application and Enforcement". The Memorandum also included a Draft Contempt of Courts Act 1999. The Draft Act sought to define the law of contempt, the scope of punishment and comprehensive procedure for dealing with contempt. The Memorandum was submitted to the Prime Minister on 30th July 1999, to the Attorney-General on 9th August 1999 and to the Deputy Prime Minister on 10th August 1999. To-date, however, there is still no Act enacted.

The Bar Under Siege

3. The year 2000 was a low point in the bizarre development of contempt cases in Malaysia and saw a sinister assault on our fundamental right of freedom of speech.

In the case of Raja Segaran a/l Krishnan v. Bar Council & 2 Ors (hereinafter called "Raja Segaran No.1") reported in [2000] 1 AMR 540, a member of the Bar was granted a interlocutory injunction to restrain the holding of the EGM of the Malaysian Bar and with this, what restrained the Bar was the consequential penalty for contempt of court if the Bar were to proceed with the EGM.

The plaintiff even threatened to apply for another injunction if the Bar Council went ahead with a proposed discussion on 20th January 2000 with some 25 members of the Bar on this decision. The Bar Council replied to the plaintiff "that the proposed discussion is a private discussion confined to 25 members of the Bar who are also litigants and as such the discussion is, therefore, not contempt of court". Of course the plaintiff had to back down, The Bar Council had called his bluff. But it is a sign of the times that he even contemplated it in the first place! That, however, was not the end of this sad period of the history of the Bar .

The first injunction obtained by the said plaintiff was granted in November 1999 to stop the Bar EGM from discussing allegations against Judges and the Judiciary (Raja Segaran No.1). He obtained a second injunction in a second suit against Bar Malaysia & 11 Ors reported in [2000] 4 AMR 4971, to stop the EGM scheduled for 23rd June 2000 from discussing the integrity and independence of the Judiciary (hereinafter called "Raja Segaran No. 2"). The EGM was to discuss the motion that the Government set up a tribunal or a Royal Commission of Inquiry to investigate the alleged improper conduct of the then Chief Justice Tun Mohd Eusoff Chin's holiday in New Zealand, purportedly with lawyer Datuk V.K. Lingam. A preliminary objection was raised in Raja Segaran No. 2 on the ground that the judge should not hear the case as his son was a member of the Bar and he therefore had a vested interest. In support of this, counsel for the Bar Council cited the English case of Lockabail (UK) Ltd v. Bayfield Properties [2000] 2 WLR 870 at page 882 which reads:

"In any case where the Judge's interest is said to derive from the interest of the spouse, partner or other family member, the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the Judge himself".

Now follows the extraordinary part of the hearing. The judge asked if all the defendants had instructed the counsel to cite the case. The Bar President Haji Sulaiman admitted that he as the Chief Executive Officer of the Bar had instructed counsel to submit on this point. For this, he was cited for contempt of court! Subsequently, the judge did not make any finding of contempt against the Bar President. It is difficult to understand how he could have cited the Bar President for contempt of court in the said circumstances, and how he could have justified it, if he did indeed find the President guilty of contempt .

In March 2000, a lawyer who appeared in court without a practising certificate was asked to show cause why he should not be committed for contempt in the face of the court. He was found guilty of contempt and sentenced to 6 months imprisonment . This case shook a lot of lawyers who had taken things for granted. Too many busy lawyers had too often overlooked the important requirement of applying and obtaining a practising certificate in good time. This was another low point for the Bar but in a different sense from the earlier episodes cited.

4. In my view, the above episodes (not including the case regarding the lawyer without a practising certificate) illustrate an insidious assault on the freedom of speech of the Bar as a whole and of the citizens of this country. These episodes made a mockery of Article 10 of the Constitution on freedom of speech.

In Appendix 6 of the IBA Special Issue on "Justice in Jeopardy: Malaysia 2000" Andrew Nicol QC's comment on the use of the contempt power in Malaysia in the context of international human rights law, said this enthusiastic use of the power to punish for contempt conflicts with two vital principles which are universally recognized in international human rights instruments - the right to a fair trial and the right to freedom of expression. He cited Article 14(1) of the International Covenant on Civil and Political Rights which guarantees a fair and public hearing by a competent, independent and impartial tribunal and reminded that a criminal defendant has an express right to defend himself through a legal representative of his own choosing and the same is implicitly contained in the right of civil litigants to a fair hearing. He says:

"There can be no fair hearing and legal representation cannot be effective unless a party's advocate is free to advance all arguments and lead admissible evidence which can reasonably be said to support the client's case. It is the recognition that lawyers must have this freedom which lies behind the absolute privilege which they enjoy (in the common law system at least) against actions for defamation for anything said or done in court.

… As Lord Atkin said in Ambard v Attorney-General for Trinidad & Tobago [1936] AC 322, 335: 'Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even outspoken, comments of ordinary men.' An advocate who is properly conducting himself may sometimes need to argue that the judge has been guilty of unjudicious conduct, but this is not to be automatically equated with contempt of court. Likewise, it must be open to a litigant or advocate to make reasoned submissions as to why a particular judge will either be actually biased or why there may be the appearance of bias. Without this, there would be no effective remedy for a potential infringement of the right to an "impartial tribunal."

Andrew Nicol also cited the Judicial Committee of the Privy Council in Abnee v. DPP [1999] 2 IU/C 1305 on the offence of "scandalising the court" where Lord Steyn reminded that the offence was solely to protect the administration of justice rather than the feelings of judges, and goes on to say :

"There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern. There is available to a defendant a defence based on the right of criticising, in good faith in private or public, the public act done in the seat of justice…The classic imputation of such an offence is the imputation of improper motives to a judge. But so far as Ambard's case may suggest that such conduct invariably be an offence their Lordships consider that such an absolute statement is not nowadays acceptable. For example, if a judge descends into the arena and embarks on extensive and plainly biased questioning of a defendant in a criminal trial, a criticism of bias may not be an offence. The exposure and criticism of such conduct would be in the public interest. On this point their Lordships prefer the view of the Australian courts that such conduct is not necessarily an offence: R v. Nicholls [1911] 12 CLR 280."

Andrew Nicol has pointed out that scandalizing the court is controversial because it is often invoked by summary procedure whereby the judge acts as prosecutor and judge in a more or less immediate trial of the accused contemnor, and that it is very difficult to reconcile this with Article 14 of the International Covenant on Civil and Political Rights and the comparable Article 6 of the European Convention of Human Rights.

5. The citation of contempt in some of the Malaysian cases highlighted in Appendix A have arisen in circumstances in which the conduct of the judge has been highly questionable. This immediately brings to mind Chapter XI of the Malaysian Penal Code under the heading 'Offences Against Public Justice' under which there are the following interesting sections:

Section 219 "Whoever being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with a term of imprisonment for a term which may extend to seven years, or with fine, or with both."
Section 218 deals with a public servant framing an incorrect record or writing with intent to save a person from punishment or property from forfeiture.

Section 204 deals with destruction of document to prevent its production as evidence.
Section 21 defines "public servant" to include "every judge".

Section 19 states that the word "judge" denotes not only every person who is officially designated as a judge but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a judgement.

Section 16 in India's Contempt of Court Act 1971 enables a judge, Magistrate or any person acting judicially to be charged with the offence of contempt of court, and in Malaysia, under the above sections from the Penal Code, a judge may be charged with the offence against public justice .

Balancing Act

6. While it is obvious that the administration of justice must be preserved free from improper interference and obstruction and the courts have a significant role in that, there is also the need to preserve the fundamental liberties of the citizen who is caught in the wheels of justice. This is the fine balancing act. Probably the courts will use the same balancing act which they have done so in other situations involving conflicting interests such as the balancing referred to by Sedley LJ in Douglas, Zeta-Jones v. Hello! [2001] 1 FLR 982 where at Paragraphs 136 and 137 he said that the balance is to be struck "…articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on counter-railing or qualified rights…tested by, among other things, the standard of what is necessary in a democratic society…the outcome…is determined principally by consideration of proportionality.

Those principles were also applied in Clibbery v. Allan [2001] 2 FLR 819 and by Dame Elizabeth Butler-Sloss P in Thompson and Venables v. News Group Newspaper [2001] 1 FLR 791 at Paragraphs (40), (42) and (51). In these cases, the court tried to strike a "fair balance" or a "proper balance".

In the Raja Segaran cases cited above, one would have thought the balancing act would have been much simpler if the judge had consciously tried to do so by balancing the need to preserve the dignity of the Chief Justice with the need for the public to judge the conduct of the Chief Justice complained of, and then to test it by the standard of what is necessary in a democratic society. Unfortunately, he seems to have done no balancing act at all in his decision-making.

7. In America, the contempt power has been much more narrowly defined by comparison with the British position. The Supreme Court has applied the Constitution's First Amendment guarantees of freedom of speech and of the press strictly against exercises of the contempt power. In Bridges v. California 314 US 252 [1941] the Court held (by 5-4) that utterances can only be punished as contempt where there is a clear and present danger to the orderly and fair administration of justice in relation to pending litigation, saying:

"The substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished (per Black at page 263). A reasonable tendency is not sufficient."

Subsequent cases have shown that the law of contempt is virtually a dead letter in protecting the trial process from prejudicial comment ("sub judice" principles).

8. In P.P v. Ooi Kee Saik [1971] 2 MLJ 108 the competing interests were between the right to freedom of speech and sedition. Justice Raja Azlan Shah said a line had to be drawn and in this country the court draws the line. But in attempting to draw the line, the problem is that the drawing board (the Constitution) has various built-in paradoxes. On the one hand, we have Article 10 on freedom of speech. On the other hand, we have Article 149 which allows Parliament to pass laws against subversion, actions prejudicial to public order, etc. Because of this, it is not surprising that we find Justice Raja Azlan Shah justifying a drawing of the line by saying in the Ooi Kee Saik case:

"We must resist the tendency to regard right to freedom of speech as self-subsistent or absolute…A line must therefore be drawn between the right to freedom of speech and sedition….when does free political criticism end and sedition begin? In my view, the right to free speech ceases at the point where it comes within the mischief of Section 3 of the Sedition Act." (At Pages 111-112 of the Law Report)

9. That has been the common thread in all the cases where our courts have had to do the balancing act. For years, our courts have failed us because they have forgotten what should have been the paramount consideration: that this country prides itself on being a democracy. In his paper "Fundamental Rights and The Rule of Law: Their Protection by Judges" for the 12th Commonwealth Law Conference, Raja Aziz Addruse lamented that in considering the scope and extent of fundamental rights, our courts appear to have been content to focus on the restrictions on those rights, as imposed by Parliament, rather than examine the purport and intent of the rights themselves. Through the years, we have become desensitivised to an assault by Parliament on the traditional meaning of democracy. Over the years, various laws have been passed which have taken away the fundamental liberties supposedly granted by our Constitution.

A New Balancing Act Required

10. We should remember the pre-Khawaja days in preventive detention cases in Britain when Liversidge v. Anderson was used to justify the interpretation of the Secretary of State's "reasonable cause to believe" as meaning "if the Secretary of State is satisfied" and that it was not for the court to question the "satisfaction' of the Secretary of State. Everywhere in the Commonwealth including Karam Singh v. Menteri Hal Ehwal [1969] 2 MLJ 129 in Malaysia, Liversidge v. Anderson became the rock that sank the ship for many a detainee. Then along came Khawaja v. Home Secretary [1984] AC 74 and suddenly the dissenting judgement of Lord Atkin in Liversidge v. Anderson became the law of the land in the Commonwealth. With due respect, it is time our courts did a Khawaja: adopt a new balancing act so as to be true to democracy. The center of gravity is the Constitution. When considering a conflict between the freedom of speech and contempt of court considerations, our Courts must focus on the Constitution as a starting point and in drawing the line, must look at any given set of circumstances within the larger picture of democracy.

11. In Zainur Zakaria's case, the decision by the Federal Court [2001] 3 AMR 3149 will be hailed as a watershed for many years to come. But I submit that the Federal Court judges should have also seized the opportunity to spell out the importance of the freedom of speech (Article 10) read with Article 5 under which no person shall be deprived of his life or personal liberty save in accordance with law. Zainur's client, Dato' Seri Anwar Ibrahim, had filed a notice of motion with a supporting affidavit to pray for an order that two DPP's in the prosecution team, be discharged from further prosecuting the case and that the matter of their conduct be referred to the Attorney-General with a view to such action as may be appropriate being taken against them. In a dialogue highlighted by Justice Abdul Malek Ahmad, FCJ (Page 3187 of report) the trial judge Justice Augustine Paul told Zainur: "This notice of motion has been filed by you and you have to assume full responsibility for it." That was the basis of the contempt case against Zainur. In an extraordinary statement of "justice" the trial judge said (Page 3190):

"This application with its Affidavit-In-Support is an interference with the course of justice as it has no basis. It therefore amounts to a pre-emptive step to undermine the integrity of a trial in progress. The object is to project an impression that the prosecution is anchored on fabricated evidence. This is a serious contempt and I have to act on it with all urgency to preserve the integrity of this trial. As I said in the early stage of this trial I will not hesitate to flex every inch of my judicial muscle to ensure that this trial proceeds smoothly. It is my duty to guarantee that persons who are following this trial are not hoodwinked in any way. With the application of this nature to muddy the smooth flow of justice, I would not be surprised if a similar application is made to have me disqualified from hearing this case. In the light of the baseless application filed by you which is totally unsupported by the documents exhibited by you, I propose to cite you for contempt for having attempted to undermine the integrity of this trial. Before I do so this court will show mercy towards you by dropping all further proceedings if you tender an unconditional apology to this court, to the Attorney-General, to Dato Gani Patail and to Encik Azhar for filing an application which is absolutely baseless and which is an abuse of the process of court."

When invited to address the court, the Attorney-General said (Page 3192 of report):
"My brief answer is that this contempt is contempt in the face of the court….it must be dealt with immediately. This contempt derails justice and requires immediate action."

Zainur was asked to go into the witness box and he said (Page 3193 of report):

"The application was filed upon instructions of my client….I did so in the discharge of my professional duty….Section 42 (Legal Profession Act) requires an advocate and solicitor to uphold justice without fear or favour…."

When found guilty of contempt almost immediately after that, Zainur was asked to address the Court on sentence. He said:

"It was not the intention to commit contempt. When the defence team studied the application before filing it was based on the documents exhibited. Our instructions were based on the documents. In the interest of justice it was felt this matter must be brought to attention of court."

When Zainur refused to apologise, he was sentenced to 3 months' imprisonment

12. The above reads like a passage from Franz Kafka's "The Trial". Fortunately, the Federal Court corrected the scandalous position and set aside the conviction and sentence and in a chilling rebuke, Justice Abdul Malek, FCJ said (Page 3203):

"In the light of all observations made, the conduct of the learned trial Judge himself had vitiated the contempt proceedings. It is obvious that the Court of Appeal, in merely agreeing with the trial judge, fell into the same error."

13. Justice Haidar Mohd Noor, FCJ said (Page 3206 of report) that it was not enough for a lawyer to say he had taken steps on client's instructions. He must also say if his client had the right to take that step. If a client insisted on taking a wrong step, the lawyer must advise him and if the client persists, the lawyer must stop acting for the client. In Justice Haidar's view, the client in this case (Dato Seri Anwar) was prima facie justified in filing his application and hence there could be no question of Zainur being liable for contempt of court for acting on his client's instructions.

14. Various passages from U.K. cases quoted by Justice Abdul Malek are interesting because they refer to the meaning of contempt of court and in some, to the necessary balancing act . Lord Morris of Borth-Y-Gest in Attorney-General v. Times [1973] 3 AER 54 said that the decision will depend on whether one aspect of the public interest definitely outweighs another aspect of the public interest. Lord Diplock in the same case enumerated the three requirements of due administration of justice as: (a) unhindered access to courts, (b) reliance on decisions free from bias and based only on facts proved, and (c) no usurpation by any other person of the function of the court to decide according to law. On these three requirements alone, Justine Augustine Paul's decision against Zainur sadly failed, even without touching on the rules of natural justice.

15. It is implicit in Zainur's duty as an advocate and in Dato Seri Anwar's right to file his application that both of them must be able to exercise their freedom of speech. Which is the larger picture that concerned the court in Zainur's case? The administration of justice or the right to freedom of speech under the Constitution? In my humble view, both elements constituted the larger picture. So the balancing act that should be have been clear to Mr. Justice Augustine Paul was between the prosecutors' dignity and the delay to the court caused by the application (as mentioned by him) on one side as opposed to the aforesaid larger picture on the other side. How could he have decided the way he did? Like Mr Justice Kamalanathan Ratnam in Raja Segaran No. 2, Justice Augustine Paul had done no balancing act at all.

16. I would venture to suggest that every judge who threatens any litigant or advocate with contempt of court citation should pause for a while and ask himself or herself whether there is a necessary balancing act to be done and if so, in which way the balance would tilt, and then decide in favour of that side of the balance. In cases of contempt which threaten the citizen's fundamental right to freedom of speech, the effect is as chilling on the freedom of speech as heavy defamation damages.

Rights of the Accused

17. The contempt power gives rise to concern on various points: uncertainty of scope, undue inhibitions on freedom of speech and a summary process lacking in qualities of procedural fairness thought essential for orthodox criminal proceedings. Because of these concerns, many of the proposals of the Phillimore Committee on Contempt of Court (Cmnd.5794, 1974) eventually took form in the Contempt of Court Act 1981 in the U.K.

18. The following summarises matters which could be said to pertain to the rights of the accused in contempt proceedings:

(a) Standard of Proof: Where the contempt alleged may result in the accused/defendant being committed to prison, it must be proved to the same standard as a criminal charge: Re Bramblevale Ltd [1970] Ch.128, Arlidge, Eady & Smith on Contempt (2nd Ed., 1999, Page 130).

(b) No one is bound to incriminate himself: Redfern v. Redfern [1891] P. 139 at 149.

(c) An alleged contemnor is not a compellable witness even in proceedings for civil contempt but if an affidavit is filed the deponent, when threatened with cross-examination, cannot withdraw it: Re Quartz Hill [1882] 21 Ch.D. 642. As the proceedings are in the nature of a criminal charge it is within the discretion of the court to refuse to allow the cross examination: Comet Products v. Hawkex Plastics [1971] 2 QB 67.

(d) Where it is sought to enforce obedience to a judgement or order, the court will only commit if satisfied that the breach of the judgement or order was wilful. An applicant who seeks to commit a person for breach of an injunction must establish deliberate or wilful breach beyond reasonable doubt. It is therefore a defence to show that the respondent had no knowledge of the order or that the breach was accidental: Fairclough v. Manchester Ship Canal Co. [1897] WN7. Accordingly, personal service of the judgement or order or a copy thereof (Order 45, Rule 7(2) of the Rules of High Court, 1980) and of any supplementary orders (Phonographic Performance v. Tsang [1985] LS Gaz R2331) is always necessary except in the following cases:

i. when an order for substituted service has been obtained;

ii. where the order alleged to have been disobeyed requires a person to abstain from doing an act (i.e. a prohibitory not a mandatory order), it may, pending proper service, be enforced if the person sought to be committed was present when the order was made or has been notified of the order by telephone, telegram or otherwise;

iii. where it is sought to commit a person for breach of an undertaking given to the court by that person;

iv. service on the solicitor of any party against whom an order for discovery or interrogatories is made is sufficient to base an application for the committal of the person disobeying the order;

v. where the court thinks it just to dispense with service.

Mens Rea: It must be shown that the accused intended to do the act in question. At Common Law it was uncertain whether it was necessary to prove in addition an intention to interfere with the course of justice (Attorney-General v. Butterworth [1963] 1 QB 696, Borrie & Lowe at Pages 53-54, 274, 275). Such intention must be shown where it is sought to hold an advocate or witness in contempt for failure to attend court: Weston v. Central Criminal Court Courts' Administrator [1977] QB 32, 43 per Denning; In Re Dr. A.S. Rayan [1983] 148 JP 569, DC. The contempt of Court Act 1981, U.K. in limiting the scope of strict liability in relation to conduct alleged to interfere with the course of justice in particular proceedings now imports a full Mens Rea requirement for contempt in the face of the Court: See Borrie & Lowe, ibid.

(e) If at the hearing the respondent expresses a wish to give oral evidence on his own behalf, he is entitled to do so.

(f) In contempt proceedings under the Rules of Court (Order 52 of Rules of High Court, 1980 and Order 34 of Subordinate Courts Rules, 1980), there must be strict compliance with the Rules: See Sykt. M. Mohd v. Mahindapal Singh [1991] 2 MLJ 112 at Page 113, Paragraph E-F (right-hand column). For example, the alleged contemnor can be discharged if the order for committal proceedings was made in Chambers and not in Open Court: Order 52, Rule 2(2) of High Court Rules and see the case of Chan Sang v. Golden Century [1995] 1 MLJ 92; followed in Tan Gin Seng v. Chua Kiam Hong [1999] 1 MLJ 29 at 31, Paragraph F-G. Under Order 52 new Rules 1A and 1B (w.e.f. 22nd September 2000) for contempt in the face of the Court, it is not necessary to serve formal notice to show cause but for other cases of contempt, formal notice must be served requiring the alleged contemnor to show cause.

(g) The order committing the contemnor must specify the contempt (Chiltern D.C. v. Keane [1985] 2 AER 118) and make clear to whom the order is directed and what must be done to comply with it: Re C (A Minor) (Contempt) [1986] 1 FLR 578. The particulars of the contempt in the order must not refer to matters not included in the affidavits in support of the application for committal: Tabone v. Seguna [1986] 1 FLR 591. If the order does not provide for imprisonment for a fixed term it will be unlawful: Linnett v. Coles [1987] QB 555. If service of the order is dispensed with, this should be recorded in the order: Nguyen v. Phung [1984] FLR 773.

(h) Rules of natural justice must be observed in summary contempt proceedings. The defendant must be given the chance to defend himself and in appropriate cases, should be given the opportunity of being legally represented. In R v. K [1983] 78 Cr App Rep 82, K refused to testify against a fellow inmate of Camp Hill Prison at the latter's trial on a charge of wounding K: the judge did not offer him legal representation, brusquely prevented him from giving any explanation for his refusal and sentenced him to a further three months' imprisonment. The Court of Appeal quashed the conviction. In fact, K could have presented evidence of duress which might have constituted a valid defence. See also In Re Dr. A.S. Rayan [1983] 148 JP 569 and R. v. Chowdhury [1984] Times 29 March.

Habeas Corpus In Aid of Contemnor Committed to Prison: A Suggestion

19. In those cases where an alleged contemnor has been committed to prison in circumstances which show his fundamental liberties have been breached, it is possible to resort to habeas corpus to secure his freedom. The source of this interesting argument can be found firstly in Paragraph 1, Schedule of the Courts of Judicature Act 1964 on "Additional Powers of High Court" which gives the Court:

"Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose."

20. The writ of Habeas Corpus occupies a special place in English constitutional law as the most efficient protection for the liberty of the subject. The use of this great remedy rooted in early English medieval legal history has great potential for the protection of citizens against erosion of their right to be free from unlawful restraints on their personal liberty . If for example, a court sentenced an alleged contemnor for contempt in the face of the court and against the rules of natural justice in, say, the circumstances described in R. v. K in Paragraph 11(h) above, it is arguable that the prisoner could resort to habeas corpus because his detention is unlawful.

21. Traditionally the writ of habeas corpus has been used to secure the release of a person from illegal detention. In Canada, a series of cases have shown that the current view is that the restraints on individual liberty which are remedied by habeas corpus are no longer confined solely to cases of illegal detention. It is now available to challenge even threatened deprivation of liberty: Idziak v. Canada (Minister of Justice) [1992] 77 C.C.C. (3d) 65 (S.C.C.): where the applicant was subject to an outstanding warrant of detention. In Ooi Ah Phua v. Officer-in-Charge Criminal Investigation [1975] 2 MLJ 198, the Federal Court rejected habeas corpus as an appropriate remedy for one denied access to his lawyer. In the light of the reasoning in the Canadian cases, it is submitted that the Federal Court was wrong. Being denied access to his lawyer is a denial of a fundamental right under Article 5.

22. The authors of "The Criminal Lawyers' Guide to Extraordinary Remedies" state that a significant issue which arises from R. v. Gamble is the extent to which inmates convicted under Criminal Code provisions which are subsequently declared unconstitutional may challenge the legality of their continued detention by way of habeas corpus . According to the said authors, by expanding the scope of the writ, R. v. Gamble appears to create an exception to this rule where the application is based on an infringement of the applicant's rights under the Canadian Charter of Rights & Freedom .

23. If a person was wrongly detained for contempt of court which was alleged to arise in circumstances showing there was an Order of Court and his freedom of speech was somehow denied (Raja Segaran situation), could he not challenge his detention by a writ of habeas corpus? I humbly submit that he could, even without exhausting his right to appeal. As the authors of "The Criminal Lawyers' Guide to Extraordinary Remedies" point out, in contrast with certiorari, mandamus and prohibition, the writ of habeas corpus is not a discretionary remedy and as a general rule, the availability of an alternative remedy is not sufficient reason for a court to refuse to issue the writ, although it makes the remedy less appropriate. If however institutional delays are so serious as to render the alternative remedy inadequate, the habeas corpus remedy would be more readily granted: Fraser v. Kent Institution [1997] 130 C.C.C. (3d) 393 (B.C.C.A.).

24. The purposive approach in R. v. Gamble was a clear departure from the restrictive common law rules governing the availability of the writ of habeas corpus. Justice Wilson said that where habeas corpus is sought as a Charter remedy, the courts should not be bound to limited categories or definitions of jurisdictional review when the liberty of the subject is at stake. She reminded that the remedy has traditionally been used for the protection of the citizen's fundamental right to liberty and that the Superior Courts in Canada have in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus as a Charter remedy. As stated in R. v. Domm [1996] 31 O.R. (3d) 540 at Page 553 (C.A.), the attempt to "modify traditional common law remedies such as habeas corpus to ensure relief against constitutional violations" is part of a larger theme in Charter jurisprudence to provide "an effective remedy to right a constitutional wrong" .

25. One cannot speculate or foresee all the situations in which the detention of an alleged contemnor has involved a denial of his fundamental or civil liberties. We can speculate for example in the Raja Segaran cases what could happen if for example the Bar Council and members of the Bar went ahead to hold the EGMs despite the Injunctions issued by Mr Justice Kamalanathan Ratnam. They would probably be committed to prison for contempt of court. They could plead that their fundamental right to freedom of speech under Article 10 of the Constitution has been denied unjustly. Their lawyers could file for Writs of Habeas Corpus. "Clear and Present Danger: The Bar Behind Bars". Any takers for the movie rights to such a splendid scenario? Does anyone dare to say it is a hopeless case to argue?


(Extract from Special Issue on "Justice in Jeopardy: Malaysia 2000")
by the International Bar Association

Contempt Cases

The use and threatened use of the contempt power in certain cases in Malaysia has given concern as to the true independence of the judiciary. It also gives concern as to the ability of lawyers to render their services freely.

Attorney General, Malaysia v Manjeet Singh Dhillon [1991] 1 M.L.J 167

It may reasonably be said that this was the first case of the chain which has led to the present situation. The Supreme Court, by a 2-1 majority, found the defendant, a lawyer, guilty of contempt of court. The case arose out of the crisis of 1988, at the time when the then Lord President had been suspended. There was an Acting Lord President in place who, by the time of the case, had been appointed Lord President. The defendant affirmed an affidavit on behalf of the Bar Council in his capacity as secretary. The affidavit was filed in support of an application for leave for an order of committal to prison of the Acting Lord President. It was alleged that he was guilty of contempt of the Supreme Court by attempting to prevent, frustrate and interfere with a sitting of the Court, thus abusing his official position. The defendant, who admitted that he had affirmed the affidavit in his representative capacity, was found guilty of contempt of court. Although it was noted that similar criticisms of the Acting Lord President were made by the Malaysian Bar, no proceedings were initiated against the Bar. The fact that the defendant's responsibility was vicarious was no defence to the charge, but was regarded as a mitigating factor. For these reasons a fine of $5,000 (in default of three months' imprisonment) was thought appropriate as a sentence. Irrespective of the merits of this decision, the judgement conveyed the hint that the real culprit was not the defendant himself but the Malaysian Bar Council. The warning having been given, judicial sentiment and apprehensions were satisfied in the circumstances by a fine. But, as messages go, the message was clear. The term "contempt of court" acquired a new significance for lawyers in relation to their work.

Further cases followed. Three of the more recent ones were brought to the attention of the mission.

Mbf Capital Bhd & Anor v. Tommy Thomas & Anor [1999] 1 M.L.J. 139

In November 1995, David Samuels wrote an article entitled "Malaysian Justice on Trial" in a legal journal called "The International Commercial Litigation". The article examined recent cases and legal incidents in Malaysia and quoted from various lawyers, including Mr Tommy Thomas, then Secretary of the Bar Council, and a partner of Skrine & Co, a firm of advocates and solicitors. Profiled for special discussion in this article were (i) Ayer Molek case (Insas Bhd & Anor v. Ayer Molek Rubber Co Bhd & Ors) which concerned an ultimately successful court action to bring to force a rectification of Ayer Molek's share register; and (ii) the case of Malaysia Borneo Finance Holdings (MBfH) v. East Asiatic Company (EAC) which concerned multiple actions simultaneously brought before the Civil and Commercial Divisions of the High Court and two different judges of the Commercial Division. The comments quoted in the article by Mr Tommy Thomas, among others, had been critical of certain aspects of each of these cases. The publication of these remarks in the article gave rise to a number of separate actions for defamation including against Mr Thomas and Skrine & Co. The total sum claimed was over RM 200 million, which by Malaysian standards, was a huge sum. The action, however, gave rise to further controversies of more direct concern at this point.

Before the action could proceed to trial, the insurers of the defendants brokered a settlement whereby the latter agreed to retract their statements, offer unconditional apologies and settle payment of a substantial undisclosed sum to the plaintiffs. On 21 October 1998, judgement was handed down in terms of a settlement with the judge further chastising the defendants for making false statements. Mr Thomas, however, felt strongly that he had been pressured into the settlement by his insurers and he made a statement to the press in which he said that the settlement "was initiated, brokered and insisted upon entirely by the insurers. The actions were settled despite my express objections". This statement was published on 22 October 1998 in the same newspaper report that reported on the settlement. No sooner had it been published than Mr Thomas realized his mistake and retracted his statement. The retraction was published on 24 October 1998. The court, however, issued Mr Thomas with a notice to show cause why he should not be cited for contempt. At the hearing which followed, Mr Thomas did not oppose the notice but sought only to mitigate sentence. He filed an affidavit tendering an unconditional apology to the court and an explanation that his remarks were not intended in any way to embarrass or offend the court, but were directed towards the insurers and the way in which the settlement of the various defamation actions had been reached. Despite a plea by his counsel that, given the immediate apology, a custodial sentence should not be imposed Mr Thomas was sentenced to six months' imprisonment.

In his judgement Mr Justice Kamalanathan Ratnam rejected in unequivocal terms the apology and explanation which Mr Thomas had given. Despite the fact that remorse and contrition had been expressed, the judge found that Mr Thomas

"has not been honest with the court. He has, in my view, not come clean. His explanation that the press statement which said that 'the actions were settled despite my express objections' was meant for the insurers, rang so hollow that it was almost an insult to the intelligence of the court to expect this court to be so gullible as to accept that explanation."

He continued that it was

"patently clear that by making an immediate statement in the pressthat the settlement was effected despite his express objections, Mr Tommy Thomas intended to portray to the world at large that he was never a willing party to the settlement.… (He) was a besotted adversary who would not sheath his sword until he had had the last say….Even to the very end, he is not prepared to come clean, bare his soul and then seek the court's compassion."

This decision was appealed. The IBA observed the proceedings. The final verdict is awaited.

This report has explored this case because it raises a number of different issues. In addition to the issue of contempt, during the hearing there had been a long and protracted discussion about whether the Bar Council could have a watching brief in light of its general duties under the section 42 of the Legal Profession Act 1976. The judge took the view that the Bar Council did not have sufficient interest, and a watching brief might cause a conflict of interests if the Bar Council was called upon to take disciplinary proceedings against Mr Thomas. It is unfortunate that the judge denied the Bar Council intervention in this case. Although the watching brief procedure is not comment to all legal systems, it is a useful tool in controversial and difficult cases.

The arguments regarding the mitigation of sentence were also significant in this case. Although Mr Thomas offered what could be considered a full apology, the judge did not accept it. He expressed his view forthrightly in the words quoted above. Furthermore, Mr Thomas had not sought mercy from the Attorney-General. This was considered to be a factor in light of the case of Anthony Ratos s/o Domingos Ratos v. City Specialist Centre Sdn Bhd (a City Medical Centre) (Attorney-General, Intervene) [1996] 3 M.L.J. 349. This highlights the active role played by the Attorney-General's office in such cases.

Skrine & Co's plea for recusal

This was another matter which developed from the defamation case referred to above. In December 1997, at an earlier hearing in the case the judge, Mr Justice Kamalanathan Ratnam, had declined to frame a preliminary issue upon the liability of the partners of the firm of Skrine & Co because it was his "finding that the alleged defamatory words spoken and published by the first defendant Mr Tommy Thomas, one of the partners of Skrine & Co, are both intrinsically and inextricably linked and knotted with the second defendants' (Skrine & Co) ordinary course of business, so much so that the first and second defendant are to my mind joint and several defendants to this action". Mr Chin Yoong Chong, a partner in Skrine, filed an application for an order that the judge "be disqualified from presiding over all further proceedings in this action including the trial of this action" because he had

"made what is in effect a pre-judgement of the most pivotal issue affecting the second defendant at a stage when he was not called upon to decide the issue….(and) there would be a reasonable suspicion of, or alternatively a real likelihood that a fair trial of this action before the Honourable Mr Justice Kamalanathan Ratnam will no longer be possible and that therefore there is an appearance of, though not actual, bias, however much the Honourable Judge may judiciously strive to avoid it."

It was averred that the judge's "finding" undermined the substantive defence of the partners of Skrine & Co. under sections 7 and 12 of the Partnership Act 1961. Broadly, the affidavit of the answering defendants in reply to the application disputed the interpretation given to the "finding" made by the judge and alleged that "there has been inexorable and inordinate delay in making this application and it was not made in good faith".

On 30 March 1998, the judge accepted that the delay in making the application for his recusal was inordinately long, especially as he had conducted two case managements since the order of 15 December 1997 had been passed. He dismissed the application with costs, adding that he had left the defences available to the applicants under section 7 and 12 of Partnership Act intact, obviating any suggestion of bias. He took the view that the delay, the fact that senior counsel's advice was taken and that the applicant had toyed with whether the application should be filed showed that it lacked bona fides. The judge said that he felt baffled that "senior and leading counsel who were….adroit in the art of pleading" had simultaneously alleged bias and expressed confidence in the court. Lawyers who spoke to the mission felt that the issue was not a personal one, but simply whether a judge who had, perhaps pre-judged a critical issue should continue with the case. The contrary argument was that refusal to frame a preliminary issue was not a pre-judgement but a deferment until the trial of the issues. In any event, those acting for Skrine & Co decided to appeal.

The judges of the Court of Appeal took the view that if application was not immediately withdrawn, notices for contempt would follow because the application was misconceived and intemperate. The lawyers appearing before the Court of Appeal said that they felt a sense of panic at this. They met over lunch and the decision was made to withdraw the appeal. In the course of discussions, the mission was invited to examine the memorandum of appeal in this case. It did so and its view was that, with respect to the Court of Appeal, whatever may be said as to whether the application was misconceived, it was at a loss to see how it could be said to have been couched in intemperate language. On the contrary, it seemed to the mission that it was couched in entirely appropriate language.

Whether the application was misconceived is not the issue in the present context. However, the threatened use of the contempt power has to be taken seriously. So seriously, in fact, that instructions had to be sought and taken over lunch from Mr Chin with the result that a decision was taken not to proceed with the action because of the threat which had been made. The appeal was therefore withdrawn. We are in no doubt that as a result of this case lawyers may have just cause to be apprehensive that the contempt power may be used if they make an application, even in appropriate language, for a judge to recuse himself. That amounts, in our view, to real causes for concern that in such cases lawyers may not be able to render their services freely.

The Zainur Zakaria case

Mr Zakaria was one of the lawyers defending the former Deputy Prime Minister Datuk Seri Anwar Ibrahim, whose case will be considered later. Mr Anwar's trial had started on 2 November 1998. On 29 November, an application was made to the court on behalf of Mr Anwar by Mr Zakaria to have two of the prosecutors excluded from the case on the ground that they had attempted to fabricate evidence against him. In support of the allegation, Mr Anwar had lodged an affidavit alleging that they had tried to persuade a colleague of his to fabricate evidence against him. The affidavit itself was based on a letter written by the colleague's lawyer in which he protested that his client was being prevailed upon by the prosecutors to give information about Mr Anwar in exchange for dropping a capital charge against him (the colleague) in favour of a charge carrying a lesser sentence. Declining to consider this application on its merits, the trial judge not only ruled that the application was misconceived but that it was also an abuse of process of the kind that interfered with the due administration of justice. It amounted to a preemptive step to undermine the integrity of a trial in progress and amounted to a serious contempt of court. The judge decided that he had to act with all urgency. After announcing that he proposed to cite Mr Zakaria for contempt, he added that Mr Zakaria could put an end to the proceedings by giving an unconditional apology to the court, the Attorney-General and the two prosecutors. He refused to adjourn the matter for preparation of any defence for more than half an hour. Moreover, the judge refused to allow the lawyer who had written the letter to be called as a witness and he refused to allow the President of the Bar Council a watching brief.

During the half-hour recess, Mr Zakaria consulted other members of Mr Anwar's defence team. He came to the conclusion that to apologise to the court and admit that the application was without foundation would be contrary to the interests of his client.

On the following day, the judge sentenced Mr Zakaria to three months' imprisonment for contempt. He ordered that the sentence run from 4.00 pm on that day. An application made by Raja Aziz Addruse, who was the leader of Mr Anwar's defence team, for a stay of execution of sentence pending appeal was refused. So was an application for a stay of execution until the next day to enable Mr Zakaria to sort out his personal affairs. Raja Aziz Addruse and his colleagues immediately went to see the President of the Court of Appeal and there obtained a temporary stay of execution until a formal application for a stay pending appeal could be made. On 4 December, Mr Zakaria appeared in the dock before three judges of the Court of Appeal to appeal against the refusal by the trial judge to grant a stay of execution of sentence pending appeal. After hearing submissions, this appeal was allowed subject to bail being posted by Mr Zakaria at RM10,000 in one surety.

Current Trends in Malaysian Public Law

By Dato' Gopal Sri Ram
Judge, Court of Appeal, Malaysia

This paper was first delivered on August 20th 2003, at the inauguration of the Tun Abdul Hamid Omar lectures

If there is one aspect of Malaysian jurisprudence that has to be identified as having undergone fundamental change over the past three decades it must be public law. The change has occurred in such matters as classification and nomenclature, grounds of intervention, remedies and procedure, and last, but not least, standing. Thus, the division between constitutional and administrative law has all but virtually ceased. Both now come under the broad title of public law. The old restrictive concept of error on the face of the record has gone. It has been replaced by the dual grounds of intervention, namely, substantive and procedural error. The separate prerogative orders of certiorari, mandamus, prohibition and quo warranto as well as the separate remedy of declaration have now been subsumed under the single broader remedy of judicial review. Procedural advancements include the right to discovery in judicial review proceedings1 and the power to award compensation in addition to or in lieu of the other remedies. So far as locus standi is concerned, the decision of the Court of Appeal in the Bar Council case2 clearly marks a departure from the traditional approach to standing. This will be dealt with later in this paper.

There has been encouraging forward, as well as unfortunate retrogressive, movement in the sphere of public law. This paper deals with some of the more important changes and highlights some of the current trends.

The first area of public law that calls for attention is legislative attempts to insulate decisions of public decision-takers from scrutiny by the courts. This is done by the rather simple process of introducing into an Act of Parliament a privative or ouster clause, often drafted in the widest possible of terms. An example is a clause in a statute that reads:

“Any decision by the Minister under this section shall be final and conclusive, and no such decision shall be challenged, appealed against, reviewed, quashed, or called in question in any court and shall not be subject to certiorari, prohibition, mandamus or injunction in any court on any account.”

Now, from the outset our courts took the view that such a clause did not prevent a decision being quashed by certiorari once there was jurisdictional error or an error of law on the face of the record3 So, in Lian Yit Engineering Works Sdn Bhd v Loh Ah Fon4 Abdul Hamid J. (as he then was) said:

“It is, I think, well established law that this court has power to issue an order of certiorari to quash an Industrial Court’s decision which, on the face of it, is wrong in law.”

That was a case under the Industrial Relations Act 1967 which housed and still houses an ouster clause of wide amplitude.

The high level watermark was the decision in Kannan & Anor v Menteri Buruh dan Tenaga Rakyat & Ors5 where Syed Othman J held that a decision by a public decision-maker not in accordance with law was not immunised from certiorari by a widely drafted ouster clause. After reviewing several authorities on the subject, his lordship said:

“From all these authorities, I am inclined to think that the better view of the law is that a plea that the court cannot interfere with a decision by reason of an ouster clause will only be accepted if the decision was reached according to the law. If the decision is not according to law, the court would invariably interfere with it. To my mind, a decision not according to law is no decision at all. (Emphasis added.)

This proactive approach of our courts was reversed by the Privy Council in a judgment that may best be described as ill-considered. In South East Asia Firebricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees’ Union6 the Board held that an ouster clause had the effect of immunising decisions made within jurisdiction however wrong that decision may be. In short, it drew a distinction between errors that go to jurisdiction and errors that do not. So, an error made within jurisdiction was protected from judicial intervention however wrong it was. The citizen was remediless in those circumstances and the court had to fold its arms in abject submission. This unrealistic distinction between errors within and without jurisdiction created by the Firebricks case held the field for about 15 years. During the intervening period the decision was subjected to much criticism. Courts were hard put to decide which errors fell within the jurisdiction of a public decision-maker and which were not. There was an air of unreality and artificiality as the profession went about trying to place a given case in the one basket or the other. In Enesty Sdn Bhd v Transport Workers Union & Anor7 Mohamed Azmi SCJ envisaged some future case in which Firebricks might be put to rest once and for all.

The opportunity came in 1995. It came in a case called Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union8. (The SKMK case). In that case we in the Court of Appeal refused to follow the Privy Council in Firebricks and instead held that the Malaysian cases that had been overruled by the Board were rightly decided. This is what I said:

“With great respect to Lord Fraser, neither the passage in the judgment of Syed Othman J in Kannann or that in the judgment of Abdul Hamid J in Lian Yit Engineering deserved the treatment it received in the hands of the Privy Council. Indeed, I would go so far as to say that the Malaysian cases may not have met the fate that they did, and the administrative law of this country would not have taken a step backwards, if the Board in Fire Bricks had truly understood and appreciated the effect of the decision in Anisminic.
In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision-making authority, whether exercising a quasi-judicial function or purely an administrative function, has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision-taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded, where resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis9), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision.

It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.

Since an inferior tribunal has no jurisdiction to make an error of law, its decisions will not be immunized from judicial review by an ouster clause however widely drafted.

It follows, from what I have said, that the decision of the Board in Fire Bricks and all those cases approved by it are no longer good law. By the same token, Kannan and Lian Yit Engineering Works, though disapproved of or overruled by the Board, must now be taken to have always correctly stated the law.”

And so in this way we restored the position correctly established by our courts. The Federal Court in two cases10 upheld what we did in the SKMK case.

Having thus returned our common law on ouster clauses to its proper place, we moved a step further by placing emphasis on the right of an aggrieved party to have access to justice. In this context it is important to bear in mind what Cappellatti11 said about access to justice:

“The need for access to justice may be said to be two fold; first, we must ensure that the rights of citizens should be recognised and made effective for otherwise they would not be real but merely illusory; and secondly we must enable legal disputes, conflicts and complaints which inevitably arise in society, to be resolved in an orderly way according to the justice of the case, so as to promote harmony and peace in society, lest they foster and breed discontent and disturbance. In truth, the phrase itself, ‘access to justice’, is a profound and powerful expression of a social need which is imperative, urgent and more widespread than is generally acknowledged.”

In Sugumar Balakrishnan v Director of Immigration, Sabah12 we recognised the importance of this principle and held access to justice to be a constitutional right. . The route by which we arrived at this conclusion is as follows. The right of a litigant to seek redress from a court is part of his or her personal liberty within Article 5(1) and hence a fundamental liberty. Parliament cannot therefore legislate to limit or restrict such right. An ouster of jurisdiction by an Act of Parliament would therefore be prima facie void. However, by resort to the rule of harmonious construction, such an ouster would only prevent judicial review of a public law decision that is made in accordance with law in the Anisminic13 sense.
And this is how we put it:

“The fundamental liberty of free access to an independent judiciary to obtain redress is apparently inconsistent with a provision in a statute that seeks to preclude that right by ousting the power of judicial review. This apparent inconsistency is resolved by permitting an ouster clause in a statute to immunize from judicial review only those administrative acts and decisions that are not infected by an error of law. Such an approach is in accordance with the well-established principle of legislative interpretation known as the rule of harmonious construction whereby the court, instead of striking down a statutory provision altogether as being unconstitutional, prefers to permit the impugned provision to operate in harmony with the Constitution. (see Tasmania v The Commonwealth (1904) 1 CLR 329, 357; Sri Venkataramana Devaru v State of Mysore [1958] SCR 895 at p 918).”

The Federal Court reversed us in the Sugumar case. They held the ouster in that case to be complete. The judgment of the Federal Court in that case has attracted and continues to attract severe criticism. The case is hardly cited in argument. The profession did not hide its dislike for it. A symposium was convened by the Bar to discuss the negative consequences of the judgment. It was the unanimous view of those who participated in the symposium that the decision is wrong. I will say something more about the Federal Court judgment in that case a little later. But what requires emphasis is that nowhere in its judgment did the Federal Court say that access to justice is not a fundamental right. So, very recently, in Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd14 we re-affirmed our earlier stand that access to justice is a fundamental right but this time under Article 8(1) of the Constitution. That decision is now the subject of an application for leave to appeal before the Federal Court.

The second area which requires mention concerns constitutional interpretation. The decided cases on the point may be very roughly likened to the graph of a fluctuating curve. In the early years of our constitutional jurisprudence, our courts adopted a strict or literal approach to the interpretation of the fundamental liberties provisions enshrined in Part II of the Federal Constitution. As a result these liberties became a dead letter. However, a while later, a more liberal approach prevailed.

The lowest point in the curve is represented by the decision of the Full Bench15 of the former Federal Court in Government of Malaysia v Loh Wai Kong16.. That was an extraordinary case. It was a case in which the appellant, the Government of Malaysia, (who was the defendant in the suit) had succeeded in the High Court. The plaintiff had failed in the action. But the trial judge17 had made certain observations on the expression “personal liberty” appearing in Article 5(1) of the Constitution. He had adopted the wider interpretation given by the Supreme Court of India in Maneka Gandhi v Union of India18 to the identical phrase appearing in Article 21 of the Indian Constitution. Those advising the Government were unhappy with the observations of the learned trial judge. There was an appeal to the Federal Court. But it was an incompetent appeal. It was incompetent because the Federal Court only had jurisdiction to hear appeals by a litigant against whom an order or decision had been made. It had no jurisdiction to hear an appeal by a successful party to litigation. That is elementary law19. Yet the point appears to have been missed all round. That is why I called it an exceptional case.

As it happened, the Federal Court, in the absence of any statutory authority to do so, went on to hear the appeal and to deliver judgment. Suffian LP who delivered the judgment of the Court said:

“Article 5(1) speaks of personal liberty, not of liberty simpliciter. Does personal liberty include the three liberties? It is well-settled that the meaning of words used in any portion of a statute — and the same principle applies to a constitution — depends on the context in which they are placed, that words used in an Act take their colour from the context in which they appear and that they may be given a wider or more restricted meaning than they ordinarily bear if the context requires it. In the light of this principle, in construing “personal liberty” in article 5(1) one must look at the other clauses of the article, and doing so we are convinced that the article only guarantees a person, citizen or otherwise, except an enemy alien, freedom from being “unlawfully detained”; the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer; the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and the right not to be further detained in custody without the magistrate’s authority.” (The emphasis is mine).

It may be seen at once that the entire reasoning of the learned Lord President in arriving at his conclusion on the issue of interpretation was based on the premise that the same principles of construction apply with equal force both to a statute and a Constitution. Indeed he treats the proposition as “well-settled”. But the weight of authority, current at the time of the pronouncement was against the principle contended for. For, just three years earlier, Lord Diplock had said in Hinds v The Queen20 :

“To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their Lordships’ view, be misleading.”

It is significant that the narrow approach to constitutional interpretation adopted in Loh Wai Kong was repudiated in two later cases of primary importance which are often overlooked. These two cases mark the high point in the graph.

In Dato Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus 21. Raja Azlan Shah Ag LP said:

“In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way — “with less rigidity and more generosity than other Acts” (see Minister of Home Affairs v Fisher 22. A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: “A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” The principle of interpreting constitutions “with less rigidity and more generosity” was again applied by the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637, [1979] 3 All ER 129, [1980] 2 WLR 271.”
It is in the light of this kind of ambulatory approach that we must construe our Constitution.”

The second case is a landmark in the sphere of constitutional law. It is the decision of the Full Bench of the Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor23. In that case, Abdul Hamid Omar LP who delivered the leading judgment, adopted the approach of Lord Wilberforce in Minister of Home Affairs v Fisher 24 and held, following the judgment of Dr, Anand J (later Chief Justice of India) in Mian Bashir Ahmad & Ors v The State25 and Maneka Gandhi’s case that:

“in testing the validity of state action with regard to fundamental rights, what the court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ‘ineffective or illusory.’”

This is a marked departure from the former inflexible doctrinaire approach of classification as the test of the validity of State action in relation to the fundamental liberties Articles contained in Part II of the Constitution and expressed in cases such as Datuk Haji Harun bin Haji Idris v Public Prosecutor 26. The broad, and liberal approach to constitutional interpretation adopted by Abdul Hamid Omar LP in Nordin bin Salleh is in keeping with trend in other jurisdictions.

In my view, the prismatic method is the correct approach to the interpretation of a written constitution such as ours, particularly to those provisions that guarantee fundamental rights. Just as a ray of light when passed through a prism reveals its constituent colours, so too when the provisions of our Constitution are subjected to prismatic treatment, they will reveal the several concepts that are housed within their language.

My own views on the subject are so well expressed in the dissenting opinion of Lord Nicholls of Birkenhead and Lord Hope of Craighead in Prince Pinder v The Queen27 that I find it sufficient to quote from them:

It should never be forgotten that courts are the guardians of constitutional rights. A vitally important function of courts is to interpret constitutional provisions conferring rights with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford. Provisos derogating from the scope of guaranteed rights are to be read restrictively. In the ordinary course they are to be given ‘strict and narrow, rather than broad, constructions’: see State v Petrus 28, per Aguda JA in the Court of Appeal of Botswana, applied by their Lordships’ Board in R v Hughes 29.

It is also important to bear in mind the words of Lord Woolf LCJ in R v Lambert30:

“[I]t is necessary to have in mind the nature of the convention as an instrument for the protection of fundamental rights. This justifies the adoption of the approach vividly described by Lord Wilberforce in relation to the provisions of a written constitution in Minister of Home Affairs v Fisher 31. It involves giving a broad and purposive approach, not a rigid approach, to the language of the convention, an approach which will make the convention a valuable protection of the fundamental rights of individual members of the public as well as society as a whole.” (Emphasis added.)

So, when Article 5(1) says “life”, it does not mean mere animal existence. It has a much wider meaning and includes all elements that constitute the quality of life. This is the approach we adopted in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor 32. But the approach that commended itself to us found no favour with the Federal Court in Sugumar’s case. Dzaiddin CJ in a judgment in which Abdul Malek Ahmad FCJ concurred (Wan Adnan (CJ, Malaya) having died after judgment had been reserved), held that neither “life” nor “personal liberty” in Article 5(1) of the Constitution have any wider meaning. And in support of this conclusion, the learned Chief Justice relied on Loh Wai Kong’s case. There was no reference to the powerful views expressed in the judgments in Dato Menteri Othman bin Baginda or Nordin bin Salleh or to the several Privy Council cases decided before and after Loh Wai Kong. Neither did the Chief Justice alert his mind to the basic defect in Loh Wai Kong, namely that it was the view of a court that had no authority whatsoever to deal with the case. With respect, the conclusion on the point of interpretation expressed in his judgment by the Chief Justice is entitled to no weight whatsoever.

In my view, the time has come to treat the Federal Court’s pronouncement in Sugumar as bad authority. It is a wholly erroneous decision. It is inconsistent with other decisions of high authority, which it does not even attempt to address. These decisions include the Federal Court case of Dato Menteri Othman Baginda and the Supreme Court case of Nordin Salleh. The court in Sugumar was a two Bench division and is therefore entitled to very little weight. Last, but not least, the decision is contrary to well-established principles.

It is appropriate now to turn to the next topic. This concerns the grounds on which a court will grant judicial review.

The traditional English approach to judicial review is that a court is primarily concerned with the decision-making process and not with the merits of the decision itself33. But that is only the general rule. As Edgar Joseph Jr. FCJ pointed out in R Rama Chandran v Industrial Court34:

“It is often said that judicial review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v Evans 35 ). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in judicial review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v Minister36 for the Civil Service , where the impugned decision is flawed on the ground of procedural impropriety.

But Lord Diplock’s other grounds for impugning a decision susceptible to judicial review make it abundantly clear that such a decision is also open to challenge on grounds of ‘illegality’ and ‘irrationality’ and, in practice, this permits the courts to scrutinize such decisions not only for process, but also for substance.”

In Chief Constable of the North Wales Police v Evans 37, Lord Hailsham criticised the judgments of the Court of Appeal in that case, in particular that of Lord Denning MR. He said:

“There are passages in the judgment of Lord Denning MR (and perhaps in the other judgments of the Court of Appeal) in the instant case and quoted by my noble and learned friend which might be read as giving the courts carte blanche to review the decision of the authority on the basis of what the courts themselves consider fair and reasonable on the merits. I am not sure whether Lord Denning MR really intended his remarks to be construed in such a way as to permit the court to examine, as for instance in the present case, the reasoning of the subordinate authority with a view to substituting its own opinion. If so, I do not think this is a correct statement of principle. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.”

However, in Kumpulan Perangsang Selangor Bhd v Zaid bin Hj Mohd Noh38 the Federal Court expressly preferred the views of Lord Denning in the Court of Appeal in to those of Lord Hailsham in the House of Lords. This is what the Court said:

“In our judgment, the correct approach to the ‘Wednesbury unreasonableness’ and the proportionality tests is that adopted by Lord Denning MR in the Court of Appeal in Evans. We therefore find the criticism of his approach by the House to be unwarranted. The continued reluctance of English courts to come to grips with the practical realities of applying the ‘Wednesbury unreasonableness’ test (see, for example, R v Secretary of State for the Home Department, ex p Brind39) in no way deters us from accepting as correct the view expressed by Edgar Joseph Jr FCJ in Rama Chandran. An examination of the merits of a decision followed by a result that no reasonable person or body similarly circumstanced could have come to the conclusion in question and a making of the decision that ought to have been made in the first place, does not, in our view, occasion an abuse of judicial power by an unjustified or unauthorized assumption of appellate power in certiorari proceedings.”

There is nothing strange or novel about these pronouncements. They merely meet with the realities of those principles that have been part of the common law jurisprudence for a great many years. Anyone with a passing familiarity with English administrative law will remember what Lord Greene said in the Wednesbury case40. Put shortly, one ground on which a court may quash a public law decision is that it is unreasonable in the sense that no reasonable decision-maker armed with the relevant facts would have done what the particular decision-maker did in the given case. Now, to determine whether a decision is objectively reasonable, it is mandatory for the court to go into the merits of the particular case. In the event, the examination of the decision is on grounds of substance and not mere procedure. In Sugumar, the Court of Appeal held that a public law decision could be impugned on grounds of substance and not merely procedure. We simply applied what Edgar Joseph Jr FCJ had said in Rama Chandran. Yet, the Chief Justice in his judgment in Sugumar’s case reversed us. After quoting the same passage we had quoted from the judgment of Edgar Joseph Jr FCJ he found it possible to say:

“[W]e cannot agree with the Court of Appeal that the doctrine of substantive fairness can be invoked as a separate or additional ground of judicial review of an administrative decision.”

It is now settled beyond argument that there are a number of grounds on which a public law decision may be invalidated. These grounds are better known better by the shorthand title, “Anisminic errors” 41. Hence, it is now beyond argument that there are a number of grounds on which a public law decision may be attacked, some of which may go to impugn the fairness of the procedure employed whilst others may go to impugn the substantive fairness of the decision itself. Which of the grounds, if any of them, would apply to invalidate a particular decision would depend on the facts and circumstances of the given case. If a decision is reasonable, then it passes the substantive fairness test. Yet it may be flawed in that the particular supplicant was denied procedural fairness. These two propositions though inverted would equally produce the same result.

The last topic is the issue of standing or locus standi. There are two stages at which standing falls to be tested. The first is at the point of initiation of proceedings. The question here is whether the applicant has the necessary locus standi to commence the proceedings. This is known as threshold locus standi. The second stage is at the close of the proceedings. Here the question is whether the applicant has a sufficient interest to receive the remedy claimed or whether there is some person who is more directly affected to whom the remedy may more appropriately be granted. This is known as substantive locus standi.

At common law, threshold locus standi simply means that it is only a person who has a real interest in a suit may bring it. The concept has been described as follows:

“A litigant is said to have locus standi, in effect standing to sue in a court of law, if that court recognizes his or her ability to institute and maintain proceedings before it.” 42

The rule governing locus standi is a judge-made rule of practice designed to keep busybodies away from the doors of the court. Because it is a judge-made rule, it is fairly flexible. So, whether the law confers standing to sue upon a litigant depends on how widely or narrowly the courts are prepared to read the requirement of “real interest”.

The policy of the courts to grant locus standi depends on whether a claim is made in private law or in public law. The test for locus standi in private actions is very strict. Only a party who has suffered the harm in question may sue. In private law it is illustrated by the rule in Attwool v Merryweather43, although it is more familiar to students and the profession as the rule in Foss v Harbottle 44. In Prudential Assurance v Newman Industries 45, the Court of Appeal said that it is an

“elementary principle that A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and therefore the person in whom the cause of action is vested. This is sometimes referred to as the rule in Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 when applied to corporations, but it has a wider scope and is fundamental to any rational system of jurisprudence.”

By contrast, in public law the courts apply a far more liberal rule of standing. This is illustrated by Tan Sri Haji Othman Saat v Mohamed bin Ismail 46. It is a case of paramount importance. The facts of that case are quite notorious.

Nevertheless, it is necessary to recall them in brief to appreciate the points that will fall to be made later. The applicant in that case was a fisherman. The respondent was the Menteri Besar (or Chief Minister) of the State of Johore. The applicant and 183 others had applied for a piece of land. They heard nothing of their application for many years. The applicant then discovered that the land in question had been alienated to several persons, including the respondent and other personages in the upper echelon of the State Government. There appeared prima facie to have been an abuse of power. The applicant then instituted proceedings challenging the alienation. His standing to maintain the action was challenged at the very outset. The High Court ruled in the applicant’s favour. The respondent appealed to the Federal Court which, when dismissing the appeal, said:

“The sensible approach in the matter of locus standi in injunctions and declarations would be that as a matter of jurisdiction, an assertion of an infringement of a contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute which affects the plaintiff's interests substantially or where the plaintiff has some genuine interest in having his legal position declared, even though he could get no other relief, should suffice. When it comes however to the question of discretion on a consideration of the substantive application, it may well be proper in particular cases to refuse a remedy to persons who, though they may have standing as a matter of jurisdiction on the lines we have indicated, do not merit it, perhaps because, inter alia, others are more directly affected, or the plaintiff himself is fundamentally not.”

What has given rise in the past to considerable difficulty in cases concerning locus standi is the question of classification of the particular action as a private or public law proceeding. This was in the main caused by plaintiffs having resort to the private law remedies of declaration and injunction in what in essence were public law challenges. These remedies brought with them their own special difficulties about the scope of their application in the public law environment. As a result, plaintiff’s’ ran the risk of their suit being classified as a private interest action and having the strict locus standi rule applied to them.

This is what happened in Government of Malaysia v Lim Kit Siang 47. In that case, the Supreme Court, by a bare majority of 3:2, denied standing to a plaintiff who asserted title to sue in several capacities, including as a road user and a taxpayer, in an action challenging the privatisation of the North-South Highway. The majority applied the common law rule of standing laid down by Buckley J in Boyce v Paddington Borough Council 48 and approved by the House of Lords in Gouriet v Union of Post Office Workers 49. Abdul Hamid CJ (Malaya) when delivering one of the majority judgments summarised the court’s approach to the issue of standing to sue as follows:

“Put in a nutshell, the law of standing to sue has two fundamental rules. First, apart from certain cases in which standing to sue is in the discretion of the court, the plaintiff must possess an interest in the issues raised in the proceedings. Second, where the private plaintiff relies on an interest in the enforcement of a public right and not of a private right, standing will be denied unless the Attorney-General consents to a relator action, or the plaintiff can demonstrate some special interest beyond that possessed by the public generally.”

In private interest litigation the motive for instituting an action is private interest. And if that interest is found lacking in a suit classified by a court as a private law action, then the plaintiff is bound to fail for want of threshold standing. This is brought out clearly in the following passage in the judgment of Abdul Hamid CJ (Malaya) in the Lim Kit Siang case:

“A justification for standing rules relates to standing as a function of the adversary system. Self-interest is seen as the motivating force that will ensure that the parties present their respective positions in the best possible light. If the motivation of self-interest is non-existent so that the ensuing dispute is not with respect to contested rights and obligations of the parties themselves, then the assurance of diligent preparation and argument cannot exist.”

By contrast the position is quite the opposite in respect of public interest litigation. Indeed, a piece of litigation will fail as public interest litigation if the court finds a private interest motive. As was pointed out by the Supreme Court of India 50:

“[P]ublic interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected, it would be bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated.”

The difficulties in classification of an action as private or public interest litigation was caused by the former adjectival law governing the remedies. Once again it is necessary to quote from the judgment of Abdul Hamid CJ (Malaya) in the Lim Kit Siang case:

“Finally, I would like to refer to a query that was raised in the course of the appeal in relation to section 29 of the Government Proceedings Ordinance 1956 considered in the light of Reg v Secretary of State for the Home Department & Anor, ex parte Herbage 51. The respondents’ answer to the point raised was that Ex parte Herbage did not apply in view of our Order 53. And that the definition of “civil proceedings” in section 2(2) of the Ordinance should refer to the position as it stood in 1956 when the Ordinance was enacted and should not therefore be affected by changes brought about to the English Order 53 in 1977.

Tan Sri Eusoffe Abdoolcader S.C.J. said that there was a lack of substance in this proposition. The question is was there really? It is to be observed that the changes brought about by the English Order 53 in 1977 resulted in an omnibus provision to include not only the prerogative orders of mandamus, prohibition and certiorari, but also the remedies of declarations, injunctions, etc. It may well be argued that the correct answers is to be found in the so-called principle that a statute is to be treated as always speaking and that the exception in section 2(2) of the Ordinance is an on-going statutory provision. The elementary point to note, however, as regards section 29 of the Ordinance is that it affords a defence to the Government or a servant of the Government to a claim for an injunction subject to compliance with the requirements therein stated. The section therefore deals with rights and not procedure.

That being so, the question which arises is whether such a defence, which cannot be said to be available if the point had arisen for decision prior to 1977, can be said to have been taken away by the simple expedient of an amendment to a rule of court made subsequently in a foreign jurisdiction. I regret I find myself unable to subscribe to this proposition since not only are we an independent sovereign country whose Parliament has seen fit to repeal the right of appeal to the Judicial Committee of the Privy Council in all matters but also because we have our own Order 53 which is limited to prerogative orders only and does not extend to claims for declaration, injunction or damages. Clearly, any lengthy discussion on section 29 should not have overlooked this crucial factor.

I would accordingly hold that the exception to the definition of “civil proceedings” in section 2(2) of the Ordinance which reads “or such proceedings as would in England be brought on the Crown side of the Queen’s Bench Division” must refer to the prerogative jurisdiction of the Queen’s Bench Division in England as at the date of the coming into force of the Ordinance and which was then limited to the granting of orders of mandamus, prohibition and certiorari only.

Consequently, as the claim in the present case was for a declaration and injunction it fell fairly and squarely within the four walls of the definition of “civil proceedings” appearing in section 2(2) of the Ordinance. It follows that the defence under section 29 applies and the case of Ex parte Herbage is, therefore, wholly inapplicable.”

The current position is that the problems cause by the adjectival law governing public law remedies have ceased to exist after the amendment to Order 53 of the Rules of the High Court 1980. Today, a litigant who wishes to pursue a cause of action in public law may claim any or all of the prerogative orders available under the former Order 53 in an Application for Judicial Review.. He or she may also add a claim for a declaration or injunction in the same proceeding. More importantly, the court is not confined to the relief claimed by the applicant and may instead mould a remedy that is appropriate to justice of the case. In appropriate cases, compensation in addition to or in lieu of a specific remedy may be granted. Further, the only requirement to confer standing is that the applicant should be adversely affected by a decision of a public authority. This is far more flexible than the Buckley test.

Comfort may be derived from the fact that the current trend is to interpret Order 53 liberally as it is a curative provision. That is what we did in Sivarasa Rasiah v Badan Peguam Malaysia & Anor 52. And this is what we said in that case:

“It must not be forgotten that O 53 of the RHC in its present form was introduced to cure the mischief of its precursor, which was much narrower and more restrictive. Two points may be noted when considering our present Ord 53 of the RHC. First, that it begins by referring to the powerful and enabling provision introduced for the first time in our law by Parliament in paragraph 1 of Courts of Judicature Act 1964 (‘the CJA’). Pausing for a moment, let me remind myself of the historical background against which paragraph 1 was enacted.

Until 1964, the statute that governed the judicial arm of Government was the Courts Ordinance 1948 (‘the Ordinance’). That Ordinance was passed by our colonial masters under whose yoke we lived until 31 August 1957. On 31 August 1957, we inherited a dynamic Federal Constitution (‘the Constitution’) which conferred upon our citizens some of the most cherished and valuable rights that any human being can aspire for. Among these are the fundamental liberties enshrined in Part II. It was obvious to the meanest of intelligence that in the face of such a dynamic document the outdated, archaic and arcane provisions of a medieval society that fashion remedies to meet its needs were wholly inappropriate. Of what use to us are such ancient self-fettering remedies like certiorari, quo warranto and the like? Something had to be done to bring federal law in line with dynamism of the Constitution. And so Parliament acted. It repealed the Ordinance and replaced it with the CJA into which it incorporated paragraph 1 conferring upon our High Courts powers much wider than those vested in Queens Bench Division in England. But our courts were limping behind Parliament in the procedural sector. We still clung on to the shackles and fetters imposed upon us by English adjectival law. We forgot all about paragraph 1. And then finally, the Rules Committee acted to keep in tandem with the CJA. Accordingly, O 53 of the RHC, in its present form was introduced.

To return to the construction to be given to O 53 of the RHC, I turn to the second point I wish to make. It is the principle which governs the construction of rules of courts. A rule of court should not be interpreted in such a way as to result in unfairness or produce a manifest injustice: Bank of America National Trust and Savings Associations v Chai Yen 53; Sim Seoh Beng & Anor v Koperasi Tunas Muda Sungai Ara Bhd 54. So here, a manifest injustice would occur if O 53 of the RHC is read restrictively so as to permit an applicant to claim a declaration only where he applies for it jointly with some other remedy.

I might add that under paragraph 1 of the Schedule to the CJA, which is drawn from art 226 of the Indian Constitution and to which in material parts it is identical, our courts have power to issue such orders and grant such relief as is appropriate to the particular circumstances of a given case.”

The procedural liberalisation of threshold locus standi in the sphere of public law remedies has been accompanied by forward movement in the sphere of substantive locus standi as well. The decision in Raja Segaran v Bar Council Malaysia 55 has had a positive effect in this area. To recall, the court in that case was moved in a suit, inter alia, for declaratory relief on the ground that the proceedings of a general meeting that the Bar proposed to hold to discuss the judicial conduct of the then Chief Justice would constitute contempt of court and violate certain provisions of the Constitution. The defendant moved to strike.

If the High Court had adhered to precedent, then, following Lim Kit Siang and Imperial Tobacco Ltd v A-G 56 it would have struck out the action on the ground that it was not appropriate in the circumstances for the plaintiff to bring proceedings claiming for a declaration that the defendant’s proposed conduct was unlawful57. But, as it happened, the High Court declined to strike out the action. And the Court of Appeal affirmed.

This constitutes a departure from the principle in Lim Kit Siang. It must not be forgotten that part of the plaintiff’s pleaded case in Lim Kit Siang was that the defendants’ proposed venture was bad because certain members of Government had committed corrupt practice within section 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970 in relation to the venture. One of the grounds on which the plaintiff’s claim was struck out was that the plaintiff’s pleaded case disclosed no reasonable cause of action as it sought a declaration that was based on alleged criminal conduct. If there was criminal conduct then that was a matter for the Public Prosecutor to deal with and it could not constitute the subject matter of a declaration.

One final point. Whether a citizen is to be accorded locus standi to move under RHC Order 53 as a person adversely affected depends very much on the approach one takes to the interpretation of those fundamental rights guaranteed by Part II of the Constitution, in particular Article 5(2) which protects both life and liberty. Once a broad, liberal and generous interpretation is given 58 to the expressions “life” and “personal liberty” in Article 5(2), it will be possible to accommodate within Order 53 as a person adversely affected, an applicant who complains that a public authority has failed to enforce the law, for example on the ground that no action has been taken against those who engage in unlawful activities that harm the environment.