Gopal Sri Ram JCA:

The Background

[1] This appeal raises an important point of practice and procedure in the context of the doctrine of immunity from suit. The matter arose in this way.

[2] There is a magazine called "International Commercial Litigation". Though published in the United Kingdom, it has worldwide circulation. There appeared in the November issue of this magazine an article about our justice system. It was headed"Malaysian justice on trial". One David Samuels authored it. The article carried references to certain cases that had been dealt with by the courts of this country. Among these cases was one in which the plaintiffs (respondents in the appeal) were concerned. The article also reproduced, in direct quotes, words spoken by the defendant (the appellant in this appeal).

[3] The plaintiffs took umbrage over the words published by the defendant. They formed the view that the defendant had injured their reputation. They issued writ for defamation. The defendant took advantage of the provisions of O 12 r 7 of the Rules of the High 1980 ('the Rules'). He entered conditional appearance with leave of Court. Then, within the time limited by that rule, he took out a summons to set aside the writ on the ground that the Court had no jurisdiction over his person because he was immune from suit. The defendant's claim for immunity rests on the ground that he was, at the material time, the United Nations Special Rapporteur on the Independence of Judges and Lawyers. In support of his claim, he relied, among other matters, on a letter written by the Secretary General of the United Nations and a certificate issued by the Honourable the Minister for Foreign Affairs of Malaysia ('the Minister'). These will be referred to later in this judgment.

The Judicial Commissioner's Approach

[4] The defendant's summons came up before the learned judicial commissioner. After a hearing spread over several days, she reserved judgment. In a carefully considered judgment, she came to the conclusion that the defendant's immunity was a matter that was not capable of resolution in a summary manner. She therefore dismissed the summons and directed the defendant to deliver his defence. She also left it open to the defendant to raise in his statement of defence the immunity question for determination at the trial of the action. This is how she put it:

Having regard to the matter in its entirety it is inevitable that I need to postulate that at this interlocutory stage, it is not for me to determine whether the said words imputed to the defendant are defamatory or not. Only the question of jurisdiction looms large.

Towards that end, I must assume that all the allegations as enclosed in the statement of claim are true without deciding it to be so.

To do this I have to see whether the facts placed before me and the relevant laws cited to me oust the jurisdiction of this Court.

It is a fact that the defendant is a Special Rapporteur with the United Nations. It is a fact that he made the statement to the magazine.

Even assuming for a moment that the statement is damning and consequently defamatory, I would have to ascertain whether it would exclude the defendant from the jurisdiction of this Court.

On the first point there is no dispute. Even on the second, the Court's jurisdiction is not ousted even if Mazilu's case points otherwise, since the ICJ's decision is not binding on this Court on a point of public international law and in any event, on the facts made available to me at this interlocutory stage, there is no evidence to suggest that the test set out in Mazilu's case have been met.

Therefore hackneyed as it may sound, I must reiterate that for purposes of determining jurisdiction I must assume the allegation in the plaintiffs' statement of claim is true and:

Since lack of jurisdiction has the consequence that the Court has no right to enter upon the enquiry as to whether there exist a state of facts which would entitle the Court to grant to the plaintif