Suffian LP:

This is an application by the appellant for conditional leave to appeal to His Majesty from a judgment of this Court.

The appellant is a teacher at Sekolah Rendah Jenis Kebangsaan (China) Naam Kheung, Batu 3½, Jalan Cheras, Kuala Lumpur. He was ordered to go on transfer to Sekolah Rendah Jenis Kebangsaan (China) Chung Hwa, Jerteh, Trengganu. He refused to comply with the transfer order. He appealed to the education authority to cancel the order, but was not successful. On 11 April 1980, the Secretary General of the Ministry of Education directed him to present himself to the Headmaster of the school in Jerteh as early as possible. He again refused.

On 14 April 1980, he filed a suit in the High Court, Kuala Lumpur, asking for a number of declarations, the main one being a declaration that the purported transfer was void and of no effect. While the suit was still pending the Education Service Commission on 9 June 1980, sent him a notice to show cause why he should not be dismissed from the teaching service. The notice also carried several charges against him relating to acts allegedly in violation of several provisions of the Public Officer (Behaviour and Discipline) Regulations, also known as General Orders Cap. D. The several charges against the appellant are concerned primarily with his not complying with the transfer order and with his subsequent conduct.

On 29 September 1980, the appellant applied to the High Court under O. 52 r. 3 of the Rules of the High Court 1980 to commit the eight members of the Education Service Commission, the respondents, for alleged contempt of Court. The grounds for the application for committal can be summarized briefly as follows:

(1) knowing that there was a pending suit in the High Court for declarations on the purported order of transfer, the respondents had by sending the Notice to show cause prejudged the issues the subject matter of the pending suit;

(2) the action of the respondents clearly interfered with the true course of justice and the lawful process of Court;

(3) the actions of the respondents were clearly calculated to hinder the Court in the administration of justice, adversely affecting the authority and dignity of the Court; and

(4) the action of the respondents clearly prejudiced the merits of the applicant's case pending before the Court.

Wan Suleiman, FJ who sat in the High Court to hear the application held:

that on the score of the restricted scope of publication alone, there cannot be contempt for by no stretch of the imagination can such publication pose any sort of risk of interference with the proper administration of justice. What was called by applicant's Counsel publication was in fact intimation to the applicant of charges of a departmental character proposed to be brought against him.

And in another passage of his judgment he said:

Examined in the light of Lord Diplock's definition of contempt of Court cited earlier [i.e. Attorney-General v. Times NewspaperLtd. [1973] 3 All ER 54] the conduct of the Education Service Commission in relation to the civil suit (which) applicant has filed neither tends to undermine the system for the administration of justice by Courts of law and the maintenance of public confidence in it nor does it inhibit citizens from availing themselves of that system for the settlement of their disputes.

On appeal the Federal Court agreed with the learned trial Judge.

The appellant being dissatisfied is desirous of appealing further to His Majesty - hence this application for leave to so appeal.

Mr. Lim Beng Choon for the respondents opposed the application on the ground that the decision appealed from was a decision as to the effect of the Constitution and therefore barred by s. 74 (3)(a) of the Courts of Judicature Act. Alternatively he argued that the decision was one relating to a criminal matter and therefore, since the repeal by Act A328 in 1976 of para. (c) of sub-section (2) of s. 74, no longer appealable to His Maj