23.06.2000

Judge R.K.Nathan granted an injunction to prevent the Bar from holding an EGM,
based on his own preliminary objection, and without allowing the Plaintiff to
present his Application.

The ground of Nathan's Judgment is that the Bar had not obtained verification
from Minister Rais Yatim on his allegation on Chief Justice Eusoff.  Quoting the
concluding part of Nathin's Judgment:

"To my mind there is no basis to call for an Extraordinary General Meeting on
allegations attributed to someone who has not even been asked to verify its
truth.  There is no need for me to ask the Plaintiff to even go into the merits
of his application.  On this one basic preliminary issue alone the 1st defendant
has been unable to satisfy me.  I therefore grant the plaintiff an order
injuncting the 1st defendant from convening the Extraordinary General Meeting
fixed for 23.6.2000."

Since Nathan has made Yatim's allegation on Eusoff as the central issue of his
Judgment, let us look at what Yatim's allegation is.

Referring to the photographs showing the Eusoffs and the Lingams together in New
Zealand, Rais commented in a radio interview on 29th May that Eusoff's
behaviour was improper.

In reply to Rais's criticism, Eusoff denied in a press conference on 6th June
that his being photographed with Lingam was improper.  He explained that he had
merely "bumped" accidentally into Lingam in N.Z. on his way to the zoo, and
obliged the latter by having photographs taken of them together.

Then explicit details of the families of Eusoff and Lingam journeying and
holidaying together to N.Z. surfaced in the Internet and the press.  These
details include itenarary, names of accompanying children, air ticket
counterfoils, activities at various tourist destinations etc.  They first
appeared on various websites on 9th June, and later at the Asian Wall Street
Journal and Malaysiakini.com on 14th June.  The latter attributed its source of
information from U.K. private eye Bowman Investigations, which was commissioned
by insurance companies and a law firm to uncover corruption and improprieties by
Malaysian judiciary in connection with a litigation.

These detailed revelations directly contradicted Eusoff's claims of an
accidental meeting with Lingam, and if these are proven, would confirm the Chief
Justice of having publicly lied to the Nation to cover up an improper conduct by
himself.  Worse, it would also arouse suspicion of larger offences of a criminal
nature being committed, on the premise that a person of such a high status as
the chief justice of a country would not have gone to the extreme of publicly
lying to the nation, unless it is intended to hide wrong-doings of a more
serious nature than just improper socializing.

DAP Chairman and other Opposition leaders have repeatedly called on Eusoff to
state his stand on these stunning new revelations, which had directly
contradicted Eusoff's press statement on 6th June.  Eusoff has not replied to
these calls, neither has he made any statement to clarify his position.

Having looked at Yatim's allegation and the circumstances surrounding it, we
return to see how Nathan dealt with this issue.

Nathan said various press reports submitted by the Bar as evidence were
"inadmissible", as they constituted "hearsay" evidence.

To which, defence lawyer Ariff Yussof contended that hearsay evidence in an
affidavit of this nature was admissible under Order 41, rule 5(2) of the Rules
of the High Court 1980, citing the case of Wee Choo Keong v MBF Holdings Bhd &
Anor & Anor Appeal (1995) as the authority for saying so.

However, Nathan pointed out that in the Supreme Court hearing cited above, Chong
Siew Fai, CJ of Sabah and Sarawak, though agreeing hearsay evidence under Order
41, rule 5(2) of the RHC was admissible, qualified it by saying "the Court
should ensure that no injustice results from its admission."  Nathan said in
his Judgment "I whole-heartedly accept this view.  Great injustice would befall
Datuk Dr. Rais Yatim, the Chief Justice and all others reportedly having made
statements whose quotations have been exhibited by the defendant, if they deny
having made such."

In the first place, it was wrong for Nathan to adopt Justice Chong's said
qualification on admission of hearsay evidence to this hearing, because the two
hearings are totally different in nature.  The Supreme Court hearing by Chong
was concerning the ascertainment of guilt of the defendant, whereas the present
Nathan hearing is to decide whether to stop a pending EGM of the Bar.  Hence,
the yardstick used by Chong to determine admissibility of evidence, be it
hearsay or otherwise, cannot be adopted wholesale by Nathan to his Court.
Nathan can only do so if the present Court is to hear charges on Eusoff.  It is
therefore wrong for Nathan to rule that press reports were inadmissible.

In the second place, how could Nathan justify his statement that "great
injustice would befall Rais, Eusoff etc if they denied having made such
statements as exhibited by the Bar?"  Supposing Rais and Eusoff deny they have
made those statements reported in the press, what does that mean?  Can the Court
be certain that Rais and Eusof are telling the truth, that they are right and
the newspapers are wrong?  If not, then how can Nathan claim that "great
injustice" would have befallen them?   And supposing Rais and Eusoff do not
deny these press reports, which in all probability is the case (they would have
denied long ago if they did not make those statements), then where does that
leave Nathan's Judgment?

The foregoing series of questions only demonstrate the necessity to start a
proper enquiry, not to silence one.  As it is, Eusoff's reputation is already
badly damaged, more so when he keeps his silence.  If he is innocent, an enquiry
will exonerate him, not crucify him.  In crying "great injustice," Nathan was
obviously jumping to conclusion that the Bar was out to do Eusoff in.  The fact
is the Bar was merely calling for a meeting to discuss whether a tribunal was
necessary.

Nathan's total reliance on the lack of verification from Rais as the basis of
his Judgment, and his total failure to pay attention to the circumstances
surrounding the Eusoff issue and to the objective of the Bar EGM, turned his
Judgment into one built completely on technicality, and invite query as to his
motive for doing so.  And even that technicality is faulted.

Was Nathan justified in throwing out the entire defence merely because the Bar
had not obtained verification from Rais?   Was that point so crucial?  What
about the many statements made by Rais to the press, particularly those after
Eusoff's retorts on 6th June, during which Eusoff denied the allegation and
ridiculed Rais in retaliation?  Never for once did Rais point out any inaccuracy
in any of the reports circulated in the press and the Internet.  Neither has
Eusoff made any correction to any of the press reports.

The crucial statements are Rais criticism of Eusoff in Australia on 29th May and
Eusoff's retorts on 6th June.  If there had been material inaccuracy in press
reports of Rais' criticism on 29th May, then it followed that Eusoff's retorts
on the 6th June would have been misfired.  And that would have triggered an
instant clarification from Rais, as the quarrel between the two was just due to
misunderstanding arising from wrong press reports.  And Eusoff would also have
followed with another statement to tone down his previous position.  None of
this happened.

An important point to note was Eusoff had admitted the photographs were genuine.
His dispute was on the circumstances of his meeting with Lingam.  The vital
issue to consider then was: Did the Eusoffs and the Lingams holiday together in
N.Z. or just met by chance?  Evidences circulated in the press point to the
former.

Had Nathan directed his mind on any of these deliberations?

The full circumstances of the case were such that they pointed irresistibly to
the existence of a scandal involving the Chief Justice that warranted a proper
enquiry, with or without Rais verifying on the press reports.  Nathan was wrong
to outright reject the defence based solely on the point of non-verification by
Rais, particularly when the issue of the hearing was not on Eusoff's guilt, but
on an Application to stop the Bar from holding a meeting.  Only in grave
circumstances, not on such technicality, should the Court stop the Bar from
holding its EGM.

Kim Quek