When The Bar Is A Place To Drink

I am not sure if I am supposed to be surprised or if I should express shock at the latest statement issued by the President of the Bar Council of Malaysia, because no matter the President, they all speak like they have been doing nothing but drinking.

The courts should not refer to laws, says the Bar Council President

The currrent President, George Varughese explained that tort of misfeasance in public office is derived from British common law, which is unwritten but fully applicable in Malaysia.

“The action was therefore not brought under the Federal Constitution or any written legislation, and the High Court should therefore not have relied on either of these in determining whether the prime minister is a public officer. The nature of the powers of the office of the prime minister ought to have been examined to determine whether that office qualifies as a public office under common law,” said Varughese in a statement yesterday.

In striking out the suit, Justice Abu Bakar Jais had ruled that Najib, as the prime minister, is not a public officer and hence the suit has no cause of action. He based his decision on Article 132 of the Federal Constitution and the Interpretations Act 1948 and 1967, under which the prime minister, ministers, deputy ministers, and political secretaries are not considered public officials but as members of an administration.

This is the first time that I am hearing a call for judges not to refer to any written laws or the Constitution under which laws are made and enacted.

Firstly, Varughese himself explained that the tort of misfeasance in public office is derived from British common law, the ‘common law‘ being the operative phrase here.  Malaysia’s legal system operates three kinds of laws: the common law, the Shariah law, and the customary law.

Under the common law, what Varughese is suggesting is for Justice Abu Bakar Jais to have tried the case under primae impressionis, a legal case where there is no binding authority and the findings adjudicatory in nature.

However, the learned judge (which is why he is a judge, and the present AG also is an ex-judge) knows he is bounded by laws and the Constitution, and therefore has to make interpretations based on the laws and the Constitution of which his ratio decidendi is derived.

I see lots of negative comments have been made because of the decision of the learned judge.  Some cite American laws and interpretations of the Australian law on the definition of the”public officer” but forget that this is a Malaysian common law case applied in a Malaysian court of law.  If one wants to cite Section 3 of the Corruption, Crime and Misconduct Act 2003 of Western Australia, we might as well refer to and use the Saudi Arabian Criminal Law here and let us see if more than 95 percent of the population would wish to migrate!

This is why Justice Abu Bakar Jais is a judge, and not some gobbledydook like the commentators are.

And another gobbledydook commented that if Najib Razak is not a public officer, then he is a coolie. He would know that word. That is the occupation of his ancestors when they were brought here from Kerala to toil the rubber estates.

I cannot imagine how many judges would have been fired from their job for deciding in favour of the opposition if he is being given powers again.

Fortunately, Najib Razak is not a dictator like this coolie-descendant is.

Says the descendant of coolies

Cheap Discount 

The Discounted Lim Guan Eng

Mention the name Lim Guan Eng and two words come to mind: cheap and discount. Not only did he buy the bungalow with a cheap discount but he also takes cheap shots, while anything he says to defend himself can easily be discounted.

From the day he was released on bail after being arraigned and charged for being a corrupt official, Guan Eng, or more famously known now as Tokong has been going around for public sympathy and bad-mouthing the Attorney-General that if I were the Chief Justice, I would have issued a Writ of Mandamus to the court handling Tokong’s case to cite him for being in contempt.

Yes, contempt.

Tokong has been charged in court and a court proceeding process commences the moment the accused is arraigned. Unlike in the UK, the power to cite a person for being in contempt in Malaysia is given by statute. Attempting to influence opinions on a case that is still in process is being in contempt.

The Attorney-General has issued a warning to Tokong to stop his attacks on the former. My take on this is that the presiding judge should be firm and issue a warning to Tokong et al.

It is funny how Gobind Singh Deo, the counsel for Tokong, issued a counter-warning to the Attorney-General in support of his client’s behaviour.


I believe Gobind, a DAP office-holder, is just prodding the Attorney-General to see what ticks by making things more personal. It is just a ploy to find a reason to get the Attorney-General to be disqualified from the trial. For those who don’t know, the Attorney-General is a no-nonsense man and is a man with very few words. He is very careful with what he says and the need to say it.

Gobind is trying to say that it is within Tokong’s right to explain himself to the people, and I would like to reiterate that it is in contempt of court. I would like to bring you to an earlier event to show the hypocrisy of the DAP and also Tokong.

There was a time when government-appointed prosecutor Shafee Abdullah went on a roadshow to explain the Anwar Ibrahim’s Sodomy 2 case. The whole opposition jing-bang went to town to crucify Shafee. This included an opposition-leaning institution that is well-known for issuing statements drunkards would – aptly called the Malaysian Bar. They even wanted to disqualify Shafee from the legal profession.


Let us remember that Shafee conducted his roadshow AFTER the Sodomy 2 trial had concluded and a judgment had been made. In no way was Shafee ever in contempt as firstly he was explaining the case, and secondly he never disputed the judgment made. Tokong on the other hand had gone to town trying to vindicate himself and say that the Najib government is trying all out to oust him. And this is done while the trial is still underway and judgment has not been made.

Interesting that Gobind, as Tokong’s counsel, had asked the Attorney-General to shut up instead of giving proper legal counsel to his client. And for making public statements, I remember what the Malaysian Bar had said about Shafee:

“…holding press conferences, giving media interviews…”

I hope to see a motion by the Malaysian Bar to censure Gobind but I won’t bet on it. But I sure hope Penang Langs would discount Lim Guan Eng from being next term’s Chief Minister of Pulau Pinang.