Mahadev Shankar J

The plaintiffs are applying for a declaration to annul the suspension of their union membership, and the sixth biennial delegates' conference ('the sixth BDC') held shortly thereafter.

The defendant union ('the Union') covers the newspaper workers employed in several companies which publish almost all the Bahasa Malaysia, English, Chinese and Tamil newspapers in Peninsular Malaysia. This case concerns the problems between the Union's executive council ('exco') and the branch representatives of the New Straits Times Group ('the NST group').

Rule 26(1) of the Union's constitution provides for intra-Union disputes to be jointly referred to the Director General of Trade Unions with the consent of all parties to the dispute. Failing that, the aggrieved party could, under r 26(3) choose three arbitrators from a panel of five. This panel was appointed by the fifth biennial delegates' conference ('the fifth BDC'). Vacancies could be filled at subsequent delegates' conferences. The first five so appointed were Encik Zainal Rampak, Dr V David, Dr PP Narayanan, Encik A Ragunathan and Encik Mohd Abas.

By r 12, the exco comprised eight principal officers who were elected biennially and one representative from each branch. By r 29, branch committees were to consist of four office bearers and eight committee members, who were elected biennially at the branch general meeting ('the BGM'). Of the 12 so elected, eight were designated as the branch representatives entitled to attend the biennial delegates' conference which followed.

On 24 May 1990, Encik A Ramadasoo, the general secretary of the Union, submitted the Union's proposals for its collective agreement with the NST management. The existing collective agreement was due to expire on 31 July 1990.

On 26 June 1990, the NST branch held its BGM. The incumbent branch chairman and branch secretary were both unseated. Only three of the remaining committee members were re-elected. The rest were all new faces. The new branch chairman and branch secretary are the first and second plaintiffs. The other committee members are the third to twelfth plaintiffs in this action.

A day before the BGM, the general secretary had directed the outgoing and incoming committee to stand by for a committee meeting after the election.

At this committee meeting, the president and general secretary of the Union required the incoming committee to sign two oaths. One was the oath of office. The other was the oath of secrecy. The plaintiffs took their oath of office. They declined to take the oath of secrecy, on the ground that it was unconstitutional and not provided for in the Union's constitution. No immediate protest was raised by the Union president or its general secretary about this.

On 2 August, the general secretary gave notice of an exco meeting on 14 August 1990. One of the items on the agenda was the oath of secrecy for newly-elected exco representatives.

But the branch secretary was in Australia on leave from 31 July to 29 August. In accordance with the order of precedence laid down by r 12(2), the branch secretary was the person designated as the branch representative on the exco. The rule suggests but does not specify that in the absence of the branch secretary, the branch chairman or others lower down in the order of precedence are entitled to step into his place and attend the meeting. In the event, the branch chairman wrote to the general secretary on 13 August expressing his regrets that the NST branch would be without representation at this exco meeting. The general secretary, who had prior notice of the branch secretary's departure, did not invite the branch chairman to attend nor did he apply for leave for him to do so. The exco meeting therefore proceeded as scheduled, with the NST branch representative absent.

On 29 August 1990, the general secretary on behalf of the exco issued a formal notice that the sixth BDC would be held on 27 September 1990. The same day, the gener