The Malaysian Bar violated statutory duty by addressing member misconduct complaints via AGM motions instead of referring them to the Disciplinary Board as required by law.

Abdul Rahman Sebli FCJ:

The Questions Of Law

[1] This appeal concerns the procedure to be followed by the Malaysian Bar (3rd respondent) and its members in dealing with complaints of misconduct by fellow members. This court had allowed the following questions of law to be pursued by the appellant, who is an advocate and solicitor of the High court of Malaya and a senior member of the Malaysian Bar:

Question 1(a)

In a specific matter pertaining to the allegation of breaches of discipline by an advocate and solicitor, can a member/s of the Bar, having moved by way of a motion pursuant to s 64(6) of the Legal Profession Act 1976 to resolve at the AGM that the Bar Council lodge a complaint against the advocate and solicitor to the Disciplinary Board pursuant to inter alias 94 read with s 99 of the same, simultaneously move for a resolution to, inter alia, condemn in the strongest terms the advocate & solicitor's same alleged breach of discipline at the same AGM?

Question 1(b)

In the above said circumstances, would not the Rule of Natural Justice be offended, particularly when:

(i) predetermination of the culpability of the advocate & solicitor's conduct is being sought for summary condemnation?

(ii) Would not the subsequent disciplinary proceedings that is pursued against the advocate & solicitor be tainted with bias and prejudice as a result of the attempted predetermination of the culpability of the advocate & solicitor?

Question 1(c)

In the circumstances as in (a) & (b) above, would not the members proposing the motion through the Bar Council who, having received the proposed motion and published it to members at large for purposes of deliberating and possible carrying of the motion at the AGM be acting ultra vires the powers of the Bar Council and the Malaysian Bar in the face of s 94 read with s 99 of the LPA 1976?

Question 1(d)

In the circumstances as in (a), (b) and (c) above, is not the Bar Council acting in breach of statutory duty by tabling the motion for the members' deliberation rather than to simply refer the motion as a complaint to the Disciplinary Board?

Question 1 (e)

Is not the motion proposed against the appellant dated 28 February 2015, a "complaint" in substance within the meaning of s 99 of the LPA 1976?

The Factual Matrix

[2] The appellant's claim against the respondents arose from the publication and dissemination of the motion titled "Motion against Shafee Abdullah" dated 28 February 2015 which was submitted by the 1st respondent and seconded by the 2nd respondent, both members of the Malaysian Bar, to the Secretary of the Bar on 2 March 2015. For the most part of this judgment, we shall for convenience refer to the 1st and 2nd respondents by name.

[3] On 9 March 2015, the Malaysian Bar and the 4th respondent, its then President, caused the motion in its entirety and with all its intended defamatory meaning, to be published on the Malaysian Bar website at http://www. malaysianbar.org.my titled "Agenda and Motions for the 69th Annual General Meeting of the Malaysian Bar" which according to the appellant, and which the respondents did not dispute, was accessible to some 15,000 members of the Malaysian Bar. The motion was slated to be tabled at the upcoming 69th Annual General Meeting ("AGM") of the Bar scheduled to take place on 14 March 2015.

[4] The object of the motion was to condemn the appellant "in the strongest terms" before lodging a complaint with the Disciplinary Board. This was admitted by Tommy Thomas in his evidence at the trial when he said: "There is no doubt in our minds that they wanted the floor to condemn...We thought that you cannot invite the Malaysian Bar to lodge a complaint unless you condemn first. We must be satisfied, in our mind, at a peer meeting."

[5] Clearly, the thinking was that the Malaysian Bar could only be "invited" to lodge a complaint of misconduct by an advocate and solicitor with the Disciplinary Board after the advocate and solicitor had been condemned by fellow members