Preface: Some time ago, some friends and I noticed there is no comprehensive account of our Malaysian legal history available. There is a void in our national consciousness about the history and developments of its laws, the legal environment and culture in which those developments took place in relation to the bar and bench and its significant personalities. Below is my experiment at writing a chapter about a case I thought was significant in Malaysian legal history to see what it might look like. I have split up the essay into three parts because it is long. You can find the first part here.

The application for leave to appeal in the Federal Court

That Court of Appeal Judge was Dato’ Dr Zakaria bin Mohd Yatim and that High Court Judge was Dato’ PS Gill. They agreed with and adopted Eusoff Chin’s judgment. At the Federal Court, Insas Berhad was represented by VK Lingam. Ayer Molek was represented by its earlier two lawyers with the addition of Evelyn Khoo and Ranjit Singh.

Eusoff Chin summarized what he said was the flaw in the Court of Appeal’s decision:

Since the respondents (appellants in the Court of Appeal) had in the Court of Appeal withdrawn their application for stay of the mandatory injunction, there was no more application left for the Court of Appeal to deal with, and the application should have been dismissed, and the Court of Appeal was thereafter functus officio. We agreed that Mr. S.C. Loh did the right thing because when he withdrew in the High Court his application to set aside the mandatory injunction, it is deemed that he had conceded that the mandatory injunction had been properly made. Consequently his appeal against the learned High Court Judge’s adjourning the case from 13 April 1995 to 27 April 1995 had no leg to stand on. But the Court of Appeal went on to entertain an oral application by Mr. S.C. Loh from the Bar, and to deal with the merits of the case, and granted the application. This is wholly irregular and improper. The respondents’ appeal against the High Court’s adjourning the hearing after hearing arguments from both parties from 13 April 1995 to 27 April 1995, was not even before the Court of Appeal, as it had not been fixed for hearing on that day.

VK Lingam’s reaction to the Court of Appeal’s remark against him was predictable:

The learned Counsel for the appellants Dato’ V.K. Lingam had strongly objected to the derogatory criticism by the Court of Appeal in its written judgment and to the aspersions cast on the professional conduct of the appellants’ solicitors as they were not only made without jurisdiction but are also wholly and utterly unjustified and unwarranted. He requested that all these remarks and criticism made by the three Judges of the Court of Appeal in their judgment against the High Court Judge, the applicants and their solicitors should be expunged from the judgment.

Loh Siew Cheang’s recorded replies in the judgment were disappointing:

We scrutinised the record before us to see if there is any evidence which prompted the Court of Appeal Judges to make these derogatory and unwarranted remarks. We find that these remarks had been made suo motu without any basis. We asked Mr. S.C. Loh the learned Counsel for the respondents if he had appeared at all stages of the proceedings. He replied he did. We asked him if he had ever objected to the applicants’ case being heard by the Appellate and Miscellaneous Division of the High Court. He replied he never raised any objection. We further asked him if he had ever raised any objection to the learned High Court Judge, Dato’ Azmel hearing the application, and he replied he did not. We finally asked him whether, in the Court of Appeal, he ever raised any of these objections, and again he replied that he did not do so. He also admitted and confirmed that he never at any stage of the proceedings criticised the conduct of the learned solicitors for the applicants which could cause the three learned Judges of Appeal Court to attack the appellants’ Counsels. Then why should the learned Judges of the Court of Appeal go on a frolic of their own to find fault with the High Court Judge, and criticise the conduct of the applicants’ solicitors in a very disparaging manner. Their own conduct would tend to show that they were themselves biased and taking the side of the respondents against the applicants, the High Court Judge and the applicants’ solicitors. [Emphasis mine]

Eusoffe Chin lashed the Court of Appeal as harshly as it did the High Court:

We do not find any good and sufficient reason as to why the three Judges of the Court of Appeal should launch a scathing attack on the High Court Judge for hearing the case when the learned Counsel for the respondents (defendants) in the first place had not raised any objection to the Judge or the Division proceeding with the case.

The objectionable and wholly offensive remarks made against a Court of law, the plaintiffs and their solicitors and the learned High Court Judge all of whom had had no opportunity to defend themselves in the face of such unwarranted and unjustified criticisms ought to be expunged from the judgment of the Court of Appeal as it has a tendency to bring the whole administration of law and order in the Courts into disrepute. It is judicially recognised that judicial pronouncements should be judicial in nature and not depart from sobriety, moderation, and reserve. It has been said elsewhere that the pen of a Judge should be like the knife of a surgeon which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it. A Judge should neither reward virtue nor chastise vice, and his judgment should not display emotion and intemperance as displayed in the judgment of the Court of Appeal here. [Emphasis mine]

This was the first time in Malaysia’s judicial history that certain portions of a written judgment were ordered to be expunged. The next time this was done was 8 years later in the Court of Appeal decision of Phileo Promenade Sdn Bhd & Anor v Premier Modal (M) Sdn Bhd [2003] 1 CLJ 854. Eusoff Chin concluded the case as follows:

In expunging these totally unwarranted and unjustified remarks from the judgment of the Court of Appeal written on 31 July 1995, we must place on record of our disappointment and displeasure (to put it mildly) at the conduct of the three Judges of the Court of Appeal for having without any justification criticised those who were not given the opportunity to defend or explain themselves.

We wish to remind Judges and Magistrates that where they find that an advocate handling any matter before them has grossly abused the process of Court or acted in a highly unethical manner, the proper step to be taken is for them to lodge a report with the Legal Profession Disciplinary Board established under s. 99(2) of the Legal Profession Act 1976 which will investigate the complaint and where both the accuser and the accused will be given a fair opportunity to state their cases.

The aftermath: the Public and Bar Council react

Eight days after Eusoff Chin’s written grounds were issued, on 21 August 1995, Puan Hendon bte Haji Mohamed, the Bar Council President issued a cogent and powerful critique against the decision:

The Bar Council is deeply shocked at the extraordinary events in the Ayer Molek Rubber Company case. These events are a matter of very grave concern to the commercial and corporate community and to the general public. The totally differing views and comments of the Court of Appeal and the Federal Court raise very serious questions as to the administration of justice in Malaysia. These questions demand an answer. Something is very seriously wrong.

The matter cannot be left as it is and the Council is investigating the matter further.

A week later, on 28 August 1995, the Bar Council followed that up with a statement saying the decision was a nullity because the Federal Court sitting was unconstitutional. It was not composed according to Article 122(2) of the Federal Constitution (as amended in June 1994) because PS Gill J was merely a High Court Judge and therefore not qualified to sit in the Federal Court. 

Wu Min Aun in his article Judiciary at the Crossroads in the book, Public Law in Contemporary Malaysia (Longman) gave his impression of the Bar Council’s opinion:

The Malaysian Bar …[claimed] that the Federal Court was not properly composed in accordance with the constitution. It pointed out that one of the panel members, a High Court judge, was not qualified to sit on the Federal Court bench. It was argued that apart from its permanent judges, only Court of Appeal judges could sit as Federal Court judges if the Chief Justice nominated them. The revelation that the Federal Court might not be properly constituted added fuel to further speculation that there might been an elementary mistake at best and “stacking” of judges at worst. Whichever it was, the case did enormous damage on perception of the judiciary as an impartial adjudicator. [Emphasis mine]

The New Straits Times (3/9/1995, p.13) also stated in an article that:

…questions are already being asked as to why the courts and judges are speedy in hearing commercial cases, especially when big companies and big businesses were involved, and the apparent ease with which parties choose which courts to go and which judge to seek out…This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jail for years while waiting to stand trial.

The case was discussed in the cabinet when Anwar Ibrahim raised the case at a meeting in 1996. He told his colleagues that the manner in which the Ayer Molek case was decided would have adverse effects on foreign investors. The case was such a sensation because it manifested in print the whispered rumours in the passageways of the courts about how litigants who hired the ‘right’ lawyer could arrange to have their case heard and decided by a judge favourable to them irrespective of the merits of their case.