Justice Dr. R. K. Nathan granted the injunction on "one basic preliminary issue" without going into the merits of the application by lawyer K. Raja Segaran that the Bar had committed sedition and contempt of court in convening the EGM after he had asked counsel for the Bar whether it had confirmed that Datuk Rais Yatim, the Minister in the Prime Minister’s Department had in fact made the statement he was purported to have made about the Chief Justice.
Ruling that the Bar’s exhibit of a newspaper report allegedly
containing Rais’ allegations was "hearsay evidence", Nathan said:
In granting the injunction, the judge ruled:
Malaysians who are deeply concerned about upholding the principles of judicial accountability, independence, impartiality and integrity are disappointed that the EGM of the Malaysian Bar had been aborted on a technical point, without a full canvassing of the substantive merits as to whether such an EGM was seditious and contempt of court as contended by the applicant.
This is particularly the case as the veracity of Rais’ statements in his interview with ABC Radio which was broadcast on May 29, 2000 had never been a bone of contention in the court of public opinion.
Neither Rais nor Eusoff had queried the veracity of the statement made by Rais on ABC Radio in connection with the photographs which had been posted on the Internet about Eusoff’s New Zealand holiday with lawyer Datuk V.K. Lingam, where he said: "Certainly such socialising shall I say is not in keeping with the proper behaviour of a judicial personality and we have intimated to the chief justice that this is a behaviour improper and this has been intimated to him in no uncertian terms."
The transcript of Rais’ interview with ABC Radio broadcast on May 29, 2000 is available on the internet, and I have just accessed it.
Rais had never intimated that he had been misquoted or that his remarks were taken out of context. In fact, he subsequently publicly confirmed his statement with ABC Radio when he defended himself after he was "taken to task" by Eusoff on 6th June 2000. Eusoff also never doubted that Rais had made the statement concerned and questioned the accuracy of Rais’ account, claiming that Rais had never met him to discuss anything on the judiciary but instead chose to talk to the press.
In The Sun of 8th June 2000, Rais went even further to confirm the veracity of his interview with ABC Radio when he explained "how the Australian media had asked him to comment on several photographs, in particular the one of Eusoff with lawyer Datuk V.K. Lingam".
The Sun reported:
"’I replied that it was inappropriate for someone of that standing to be found in such a disposition. I could not deny the pictures as otherwise it would have reflected badly on me and the government, as being irresponsible.
"’This is not a personal vendetta,’ he said, adding that the pictures were brought to the attention of the relevant parties at that time itself."
Rais’ comment raised the question as to why the Internet photographs were only brought to the "attention of the relevant parties at that time itself" when they had been posted on the Internet for more than two years since early 1998, but this question could be deferred until later.
Rais also confirmed in the same Sun report that he and Eusoff had spoken over the phone in the past, but he did not see the need to touch on personal issues as "I think that for someone in such a high position, there is no need for me to advise on such matters".
The High Court injunction stopping the Bar from holding an EGM today has brought into greater focus the problem as to how society can uphold the principles of judicial accountability and independence, and in particular, how the Chief Justice could be made to comply with the Judges’ Code of Ethics 1994 which he had formulated himself.
The Finance Minister, Tun Daim Zainuddin, recently said that the people can make their views known if they think that judges have erred, that although the judiciary is independent, judges should not think that they cannot be criticised.
The Malaysian people are now confused and would want to know how they could legitimately criticise judges for misconduct or who failed to avoid impropriety and the appearance of impropriety in their activities when the legal profession is not able to hold an EGM on the matter.
Eusoff himself should make clear that he and the judiciary uphold and respect the right of the public to criticise judges, not for their court decisions, but for their misconduct or failure to avoid impropriety or the appearance of impropriety in all their activities.
With the injunction against the holding of an EGM, may be the 9,000 members of the Malaysian Bar should launch a mass signature campaign in the legal profession to petition for full judicial accountability by Eusoff Chin over his New Zealand holiday in December 1994, including an appeal to the Prime Minister and the Yang di Pertuan Agong for the establishment of a Judicial Tribunal into Eusoff’s controversial New Zealand holiday and that until Eusoff had cleared the cloud of judicial impropriety and misconduct over him, he should abstain from exercising the powers of the Chief Justice - whether in personally hearing cases or appeals or exercising the administrative powers over judges in distributing or rostering cases.