TAN SRI ROZALI BIN ISMAIL V ABDUL HADI BIN HAMAD & ANOR [2023] 4 SHLR 10

Tan Sri Rozali bin Ismail v Abdul Hadi bin Hamad & Anor [2023] 4 ShLR 10

High Court of Kuala Lumpur

Application to strike out hakam proceeding.  

Facts of the case

1.    Tan Sri Rozali bin Ismail, the Appellant in this case and his ex-wife, Justynn Cassandra bt Mohamad Firdaus (‘Justynn Cassandra’), were the Plaintiff and Defendant, respectively, in a contentious divorce proceeding at the Kuala Lumpur Syariah Lower Court (‘Syariah divorce suit’).

2.    The two Respondents in both suits (consolidated by a Session Court order dated 7 January 2022) were the two Hakams appointed by the presiding judge of the Syariah divorce suit pursuant to Section 48 of the Islamic Family Law (Federal Territories) Act 1984 (Act 303).

3.    Plaintiff and Defendant were divorced through the hakam process administered under Section 48 of the Islamic Family Law Act (Federal Territories 1984) (Act 303).

4.    The Appellant was dissatisfied with the divorce order and filed a notice of appeal to the Kuala Lumpur Syariah High Court against the decision of the Kuala Lumpur Syariah Lower Court concerning the Syariah divorce suit.

5.    Displeased with the divorce decree in the Syariah divorce case, the plaintiff, after submitting a notice of appeal to the Kuala Lumpur Syariah High Court contesting the decision of the Kuala Lumpur Syariah Lower Court, filed two lawsuits at the Kuala Lumpur Sessions Court. The two individuals named as Defendants in both lawsuits are the two arbitrators appointed by the presiding judge of the Syariah divorce case following section 48 of the Islamic Family Law (Federal Territories) Act 1984 (Act 303).

6.    The Appellant contended that during the proceedings of the Syariah divorce suit on 9 February 2021, the Respondents, acting in their capacity as Court-appointed Hakams, articulated statements that were both malicious and false against him.  The plaintiff asserted that the Defendants’ actions, acting as court-appointed Hakam, led to the divorce decision and caused pecuniary damage and/or loss on his part.

7.    The defendants submitted a striking-out application based on Order 18, Rule 19 of the Rules of Court 2012. The primary contentions of the defendants, outlined in their written submissions in paragraph 6, are summarized as follows:

                        i.        The entire action constitutes an abuse of the court’s process, contending that the conduct of the defendants as Court-appointed Hakam falls within the jurisdiction of the Syariah Court. Accordingly, since these matters fall under the jurisdiction of the Syariah Court, the Civil Court lacks jurisdiction, rendering the entire action an abuse of the court’s process and necessitating a striking-out.

                       ii.        These two actions represent a duplicity of proceedings due to the filing of a notice of appeal to the Syariah High Court against the decision of the Syariah Court.

                      iii.        The plaintiff has subjected himself to the jurisdiction of the Syariah Court by filing an appeal and stay of execution against the decision of the Syariah Lower Court.

                     iv.        The alleged losses claimed by the plaintiff resulted from the divorce granted by the Syariah Court, and since the decision is appealable and reviewable by the Syariah High Court, the claim lacks merit.

8.    The Sessions Court Judge, Tuan Shamsudin bin Abdullah, concurred with the submissions made by the Respondents’ knowledgeable counsel, Mohd Ashraf bin Abd Hamid, and granted the motion for striking out.

9.    The Appellant subsequently appealed to the High Court following the dismissal of his two suits.

Issue

1.    Whether Hakam was protected by judicial immunity?

2.    Whether the civil suit was an abuse of the process of Court, duplicity of proceedings and having lack of jurisdiction?

3.    Whether the defence of absolute privilege based on the judicial privilege also referred to as the Courtroom privilege is available to the Hakam?

Ratios 1.    Whether Hakam was protected by judicial immunity?

(a) According to Section 14 of the Courts of Judicature Act 1964 (Act No.7 of 1964):

“ 14 Protection of Judges and other judicial officers

(1)  No judge or other person acting judicially shall be liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, nor shall any order for cost be made against him, provided that he at the time in good faith believed himself to have jurisdiction to do or order the act complained of.

(b) In accordance with Section 3 of the Courts of Judicature Act 1964, the term ‘Judge’ encompasses individuals holding positions in the Federal Court, the Court of Appeal, or the High Court, including the Chief Justice, the President, and a Chief Judge. Therefore, a Hakam is not categorised as a judge within this definition. Consequently, a Hakam does not fall under the protection outlined in the first provision of Section 14(1) of the Courts of Judicature Act 1964.

(c)  The second clause of Section 14(1) of the Courts of Judicature Act 1964 asserts that any person acting in a judicial capacity is immune from being sued in a civil Court for any action taken or ordered during the performance of their judicial duties. This immunity applies regardless of whether the action falls within their jurisdiction.    Additionally, no order for costs can be issued against them, given that, at the time, they genuinely believed they had the authority to carry out or order the act in question.

(d) The Court referenced a passage from Hodan-R Sdn Bhd v Dato’ Mohd Hishamudin Hj Mohd Yunus [2007] 2 CLJ 701

 Section 14(1) of the Malaysian Courts of Judicature Act 1964 protects both judges of the Superior Courts and other individuals acting judicially, such as Session Court judges, Magistrates, Registrars, Deputy Registrars, and Senior Assistant Registrars. This protection applies to any action taken or ordered in the discharge of their judicial duty, regardless of jurisdiction. However, to prevent misuse, individuals covered by this section must have believed in good faith at the time that they had jurisdiction to perform or order the act in question.

(e)   The Court in this case also refers to Section 14(2) of (Act No.7 of 1964):

No officer of any Court or other person bound to execute the lawful warrants or orders of any Judge or other  person  acting  judicially  shall  be liable to be sued in any civil Court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same.”

(f)     The Court clarified that the (Act No.7 of 1964) employs uppercase ‘C’ and lowercase ‘c’ for ‘court.’  Notable sections with the capital ‘C’ include Sections 7, 12(2), 14(3), 15, and 16, while sections 14(1), 14(2), 14(3), 16(b), and Schedule, paragraphs 5, 11, and 17 feature the lowercase ‘c.’  Section 14(2) explicitly uses the lowercase ‘c’ for ‘court’ because, according to Section 3 of the Courts of Judicature Act 1964, ‘Court’ refers to the Federal Court, the Court of Appeal, or the High Court.  The legislative intent is that judicial immunity extends not only to officers of these superior Courts but also to officers of ‘any Court,’ encompassing Sessions Courts, Magistrate Courts, and Syariah Courts.

(g)   The Court affirmed that a Court-appointed Hakam enjoys protection under common law judicial immunity.  It became apparent from the two statements of claim submitted by the Plaintiff in paragraph 13 that the actions complained of, performed by the Respondents in their capacity as Court-appointed Hakams, took place during the proceedings of the Syariah divorce suit.  Consequently, these actions were executed while the Respondents were acting judicially in the discharge of their judicial duty. Therefore, the Defendants are granted immunity under common law judicial principles.

2.    Whether the civil suit was an abuse of the process of Court, duplicity of proceedings and lack of jurisdiction?

(h)   The Plaintiff appealed to the Syariah High Court and sought a stay of execution against the decision of the Syariah Lower Court.  According to the Court’s perspective, the appeal is directed towards the recommendation for divorce and the alleged false statements made by the Hakams.  The Court identified a distinct instance of duplicity in the proceedings.

(i)     Due to the duplicity of proceedings, the Appeal was rejected.

 

3.    Whether the defense of absolute privilege based on the judicial privilege also referred to as the Courtroom privilege is available to the Hakam?

(j)     In this appeal, the defense invoked absolute privilege, explicitly relying on the judicial privilege, also termed as the Courtroom privilege.  This defense applied to the Hakams, as evidenced in the Plaintiff’s statements of claim, where the actions committed during the Syariah divorce suit proceedings.

(k)    The Court also referred to the rule, as explained by Sellers LJ in Lincoln v Daniels [1961] 3 All ER 740, which asserts that-

 “In a Court of law, the statements made by the judge, counsel, parties, and witnesses enjoy absolute privilege. This principle was firmly established in 1883 in Munster v Lamb, where the court, under the guidance of Fry LJ, emphasized that the rule exists not to shield malicious or untruthful individuals but to safeguard those acting in good faith.  The rule aims to prevent the vexation of defending actions against judges and witnesses discharging their duty, even in cases where malice or falsehood is not present.”

(l)     In essence, the Court concluded that individuals could not initiate legal action in a civil Court against the judge, Hakam, parties, counsel, or witnesses for any actions or statements made during a Syariah Court proceeding.  This encompasses all proceedings-related activities, including the contents of documents presented as evidence in Syariah Court proceedings.

(m)  The appeal was dismissed based on the absolute privilege stemming from the judicial privilege, also known as the Courtroom privilege.

Decision

1.    The Court dismissed the appeal with costs subject to allocatur.

 

Key Take Away

1.    Regarding the statutory judicial immunity, the Court found that the Hakam, who arbitrated disputes between married couples and decides whether they should be granted a divorce or otherwise, is considered as a person acting judicially in the Syariah Court proceedings.  This determination is based on the authority given by Section 48 of Act 303 and the Syariah Court Practice Direction No 1 of 2006 on the Hakam’s role and responsibilities.

2.    As a matter of fact, the principle of judicial immunity existed under Common Law.  In so far, as the Malaysia Legal System is concerned, the legislation establishing such principle is as per Section 14 of the Courts of Judicature Act 1964 (Act No.7 of 1964).

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