MBf Capital Bhd v Cumaraswamy

• Jurisdiction: Malaysia
• Judgment Date: 07 July 2000
• Date: 07 July 2000
• Court: High Court (Malaysia)

Malaysia, High Court.

(Kamalanathan Ratnam J)

Insas Bhd and Another

and

Dato' Param Cumaraswamy1

International organizations United Nations Officials Immunity Scope Convention on the Privileges and Immunities of the United Nations, 1946, Article VI, Section 22 Diplomatic Privileges (United Nations and International Court of Justice) Order 1949, Article 12 Defamation proceedings United Nations Special Rapporteur Whether immune from suit Whether defendant making alleged defamatory statements in his capacity as Special Rapporteur Whether certificates issued by Secretary-General of United Nations and Minister of Foreign Affairs conclusive evidence of defendant's immunity Role of national courts in questions of immunity

Relationship of international law and municipal law Treaties Convention on the Privileges and Immunities of the United Nations, 1946 Whether defendant immune from legal process United Nations and Government of Malaysia having different views on question Section 30 of Convention United Nations and Government of Malaysia agreeing to refer question to International Court of Justice for Advisory Opinion Whether Advisory Opinion having binding effect The law of Malaysia

Summary: The facts:The facts and background to this case can be found at pp. 368 and 406 above. Following the Advisory Opinion of the International Court of Justice (p. 408 above), the defendant applied to have the plaintiffs' writ of summons set aside and/or struck out. On 18 October 1999 the senior assistant registrar dismissed the defendant's application. The defendant appealed.

Held:The appeal was allowed.

(1) Although the Malaysian courts had decided that the defendant's immunity was a question for trial, the Malaysian Government had voluntarily consented to be bound by the Advisory Opinion of the International Court of Justice (pp. 4689).

(2) The opinion of the International Court of Justice thus prevailed even though the Court disagreed with certain aspects of its decision. Having decided that the Malaysian courts were obliged to deal with the immunity question as a preliminary issue, the International Court of Justice should have then remitted the question to the Malaysian courts to decide (pp. 46971).

(3) Although the Advisory Opinion had binding effect in this case, this case was not a set precedent for all future cases (p. 470).

The following is the text of the judgment of the Court:

Facts

The first plaintiff was and is a public listed company and at all material times wholly owed by the second plaintiff which was a licensed stock broking company. The defendant was at all material times a very senior member of the Malaysian Bar. The defendant was also appointed by the United Nations as the Special Rapporteur on the Independence of judges and lawyers of the United Nations Commission on Human Rights.

Terms of reference

At its 15th session, the Commission on Human Rights in resolution 1994/ 41, noting both the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights, requested the Chairman of the

Commission to appoint, for a period of three years, a special rapporteur whose mandate would consist of the following tasks:

• (a) To inquire into any substantial allegations transmitted to him or her and report his or her conclusions thereon;

• (b) To identify and record not only attacks on the independence of the judiciary, lawyers and court officials but also progress achieved in protecting and enhancing their independence, and make concrete recommendations including the provision of advisory services or technical assistance when they were requested by the State concerned;

• (c) To study, for the purpose of making proposals, important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary and lawyers.

The alleged defamatory statement

Between about September and November 1995, the defendant spoke and thereby published to one David Samuels, a staff writer of the International Commercial Litigation magazine (the magazine) and/or other representatives of the magazine, of and concerning the plaintiffs, and of and concerning them in the way of their said business and in relation to their conduct therein the following words alleged to be defamatory in the circumstances, set out below:

In answer to questions from the said representatives about the cases in which Dato' VK Lingam represented Insas Bhd and Megapolitan Nominees Sdn Bhd against the Ayer Molek Rubber Co Bhd, Malaysia Borneo Finance Holdings (MBfH) and its subsidiaries against the East Asiatic Co (EAC), Tan Sri Dato' Vincent Tan Chee Yioun against the publishers of the Malaysian Industry and others and Berjaya Industrial Bhd and Berjaya Corp (Cayman) Bhd against CS First Boston; and about the alleged abuse of judicial procedures and/or about the alleged corruption of the judiciary by Dato' VK Lingam and his clients in those cases the defendant said:

It would be unfair to name any names, but there is some concern about all this among foreign businessmen based in Malaysia, particularly among those who have litigation pending.

I do not think that Malaysia would be able to repeat the result when its system of justice was ranked at the beginning of 1995 by the World Economic Forum in the top 25 systems in the world on the basis of...