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©New Sunday Times
 The (Malaysian) Bar will reconvene its 59th annual general meeting on Saturday after the Federal Court’s October 7 decision not to grant the Bar leave to appeal against the Court of Appeal’s decision which upheld the High Court’s May 27 decision of declaring the Bar’s March 19 AGM null and void.
The decision has far-reaching consequences. It not only affects acts, resolutions and decisions taken at the invalidated March 19 AGM, but also (casts) doubts over the legality of the 994, 2000 and 2004 adjourned AGMs presided over, respectively, by Zainur Zakaria, R.R. Chelvarajah and Khutubul Zaman Bukhari as they were held without the 1/5th quorum. Likewise the acts and decisions of the Bar Councils and its Committees during these terms are now questionable.
The last occasion when the Bar hit the headlines like this was probably the abrupt resignation of the then president of the Malaysian Bar, Manjeet Singh Dhillion, during its 46th AGM on March 14, 1992. He did the honourable thing of resigning over disagreements with the majority of Bar Councillors who took a different stand, not supporting the motions put before the general body urging lawyers to recognise Tun Hamid as the Lord President. The first resolution to set aside any previous policy of withholding any courtesy and respect to Hamid was thrown out with 809 lawyers voting against it and only 52 supporting it. As a result, lawyers who appeared the day after the AGM before Hamid were asked whether they would recognise him as the Lord President before they could be granted the right of audience in his court.
With the end of the quorum saga, the various groups which hold differing views should now close ranks in the spirit of camaraderie, and the ‘vindicated interpreters’ should desist from embarking on a witch-hunt.
In his open letter to members of Bar Council 2004-2005 and 2005-2006, senior lawyer Datuk Param Cumuraswamy called on those responsible for “leading the profession in this appalling and undignified state of affairs (to) take full responsibility and account for the defiant and irresponsible conduct over the last few months.” Param said they should not “seek re-election to hold any office in the Bar Council in the future” and that they should be “man enough to admit” their wrong.
Param’s gravamen is that the now invalidated office bearers should not have prolonged the quorum saga, and should have just called for a fresh AGM after the High Court ruled against the Bar on May 27.
It is, of course, easy to say that if only one were blessed with prognostication skills. It appears that the wrong committed, if any, by the office bearers was for having the temerity to proceed with the appeal.
Two important points must be noted. First, the decision to hold the March 19 AGM without the one-fifth quorum was the collective decision of the Bar Council 2004/2005. Secondly, it is axiomatic that a litigant is always entitled to exhaust the due process of law. A fortiori, when granting the stay order, the High Court judge himself remarked that the point in question was contentious and ought to be ventilated in the higher court. The Court of Appeal too granted a stay pending an appeal to the Federal Court despite very strong objection from the respondent, Louis Edward Van Buerle.
But with the High Court’s decision requiring one-fifth quorum having the devastating effect, unless overruled, on all past and future AGMs of the Bar held without the one-fifth quorum, the office-bearers cannot be faulted for referring the matter up to the higher court. In the interest of the Bar, they could not have denied the Bar a chance of a successful appeal, thereby also depriving the Bar of a chance of benefiting from this hitherto unexplored avenue of circumventing the quorum requirement which has become a perennial problem.
This reminds me of the extraordinary general meeting which the Bar wanted to hold on Nov 20, 1999 to discuss serious allegations of impropriety against certain members of the judiciary despite objection from lawyer Raja Segaran. The Bar was then also taken to court and it lost at the High Court and the Court of Appeal. On Oct 11, the Federal Court dismissed with costs the Bar’s application for leave to appeal against the Court of Appeal’s decision. The possibility of the Bar now being mulcted in and impoverished by costs is very real.
But in these two cases, the office bearers involved felt passionately, whether rightly or wrongly, about the cause which they were defending (which) was later taken up by succeeding Councils. Each group of them had hoped that the apex court would finally make a pronouncement in favour of the Bar. But alas, that was not the case. While it is now up to posterity to decide whether the apex court had erred in refusing leave in these two cases, it has never been the tradition of the Bar to punish the office-bearers personally for decisions taken collectively by the council duly elected by the members. If at all the office-bearers in these two cases should be barred from contesting in future elections, then all the council members involved in making that decision should be similarly disbarred.
It follows that the decision on who should be elected as office-bearers of the Bar Council is in law the prerogative of council members. At the 53rd Bar AGM on March 20, 1999, lawyer Zainur Zakaria proposed a resolution which was carried with 675 lawyers voting in favour and 159 against, that Raja Aziz Addruse and Sulaiman Abdullah be elected the president and vice-president of the Malaysian Bar. However, in the elections which took place shortly after the said AGM, council members elected instead R.R. Chelvarajah and Mah Weng Kwai as the president and vice-president respectively.
It is hoped that the 12,000 lawyers will no longer envelope themselves in an air of insouciance by not attending the AGM on Oct 22 and future AGMs because without a valid AGM and a properly constituted council, no practising certificate can be issued to any lawyer simply because there is no president to sign it! Unless the Legal Profession Act is amended, the Bar will now have to keep calling for an AGM until the one-fifth quorum is met.
It is hoped, too, that members will use the Oct 22 AGM to rally around and move forward as a united body, upholding the statutory objects of this professional body.
The members’ sangfroid as opposed to their cantankerousness should be the order of the day if the business of the Bar is to return to normal.
How true indeed as I look at the words engraved onto the plug on my table, “When I am right no one remembers, when I am wrong no one forgets!”
*The writer is a member of the Bar Council 2005/2006 which, due to the May 27 High Court decision, will only take office after the Oct 22 AGM.
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