A PUBLIC INQUIRY INTO A STATUTORY DECLARATION DRAWN BY CECIL ABRAHAM
In what may be a case of over playing their hand, the Malaysian Bar may have unwittingly created then walked into a trap of their own making by demanding, that a hearing into allegations of professional misconduct against Cecil Abraham a lawyer of their own ranks be conducted in public.
Cecil Abraham is alleged to have, in short, ‘concocted’ the a Statutory Declaration (SD) made by the late Balasubramaniam Perumal (Bala). In addition to this, Abraham is alleged to have coerced the late Bala into signing a retraction of an earlier SD Bala swore, courtesy of his handlers, lawyers Amrick Singh Siddhu and another lawyer Sivarasa MP.
BALASUBRAMANIAM A TICKING TIME BOMB-AN UNMITIGATED LIAR
Bala came to notoriety after having made several claims which he later retracted, amended or materially changed about his involvement in and his engagement with those allegedly involved with Altantuya. He also claimed to have had first hand knowledge of the circumstances surrounding her mysterious and controversial death.
Notably none of Bala’s claims about the Altantuya affair and the surrounding peripheral issues that kept the story and media attention on him alive were consistent.
Bala’s recollection of events, facts and statements about the Altantuya affair, whenever presented an opportunity to wax and wane over his role as a bodyguard of Razak Baginda and his with Altantuya were at best irrelevant, inconsistent or hazy the second time round.
BALA-AMRICK SINGH SIDDHU-SIVARASAH AND MANJIT DHILLON-BIRDS OF A FEATHER?
Balasubramaniam and his lawyers, Amrick Singh Siddhu and Sivarasah have both of their own material made admissions in public on the record to having ‘assisted’ Bala, a semi literate man, not only to prepare his SD but also in the process to author and edit its contents. There are words in the Bala SD that do not belong in his vocabulary.
Siddhu, with Sivarasah and Dhillon in the now infamous “press briefings” of 4 July 2008 admits to his part in crafting Bala’s litany of lies they call his SD. Lies because Bala’s statements have been not been proved to be anything else and have no basis in the truth.
AN IMPARTIAL TRIBUNAL? NOT THE MALAYSIAN BAR
The call by the Malaysian Bar for Cecil Abraham to have the proverbial torch put to his belly in a public circus they intend to choreograph over Bala’s SD is something Abraham and his lawyers ought to welcome and encourage. However in order that a hearing against Cecil Abraham be seen to be impartial and fair, the Malaysian Bar and Abraham must have no part in the selection process of the panel to conduct that hearing.The Malaysian Bar because it is a political organization. Cecil Abraham on the other hand for the lesser reason that he is the accused the subject of disciplinary proceedings brought against him.
OPEN TRIBUNALS TO CHECK CONSPIRACIES AND LIES
Self regulation even in the hands of trusted and highly learned men and women of the professional classes is subject to the frailties and weaknesses of human nature. And no better example of self regulation falling victim to the frailties of human nature can be found anywhere else than in the recent history of the Malaysian Bar.
JUST FOR THE RECORD-LEST WE FORGET
In 4 July of 2008 the following event occurred staged by the protagonists featured in a youtube recording of a press briefing by Siddhu, Sivarasa and Dhillon about the Bala SD.
In this press briefing is a taped Malaysia Kini press conference called by Siddhu, Sivarasa MP and Manjeet Dhillon to explain the circumstances in which Bala’s SD was created. In that briefing Dhillon referring to himself as Siddhu’s lawyer provides critical admissions with his destructive inculpatory testimony of Siddhu’s conduct in the drafting of Bala’s SD. (A point to note here. Sivarasah does not come to the conference armed with a lawyer but Siddhu does. Why?)
The following is a transcript of the final minutes of that press briefing called by Siddhu, Sivarasa and Dhillon recorded by Malaysia Kini uploaded 4 July 2008 given by Siddhu, Sivarasa and Siddhu’s lawyer Manjeet Singh Dhillon.
In that press conference Siddhu’s legal representative, lawyer Manjeet Singh Dhillon takes to the microphone to defend Siddhu by making the following statements appearing below in italics. (Notably none of the lawyers present rebutted any of the statement below issued by Dhillon:)
Fatally, lawyer Sivarasa’s contribution to the conference implicates him as well in what has always been suspected to be a politically motivated conspiracy (the Altantuya affair) by members of the Malaysian Bar on behalf of Anwar Ibrahim and the opposition political parties:
Manjeet Singh Dhillon commenting on Balasubramaniam’s affidavit and Siddhu’s role in the July 4 press briefing in 2008 says thus.
“As far as Amrick is concerned he is (sic) discharging his duties as lawyer. He was basically helping to prepare and format the document (in context the Balasubramaniam SD).
He was not concerned with the truth or otherwise of the document. The document was presented…information on the document was coming from his client and he merely put it in the necessary language of the SD. That declaration was then sworn voluntarily before a commissioner of oaths. Mr. Amrick Singh’s position was that is was a voluntary document……..”
A LAWYER’S DUTY TO HIS CLIENT THE LAW AND THE COURTS
Critically Siddhu says through Dhillon his lawyer ‘he was not concerned with the truth or otherwise of the document’ (meaning Balas statements in the controversial Bala SD). If that does not constitute professional misconduct or potentially misleading conduct by Siddhu and Sivarasa then the tribunal has a problem which goes to its own credibility and competence.
Such a statement as that made by Dhillon on Siddhu’s behalf and not withdrawn or retracted by Siddhu or Dhillon within a reasonable time incriminates Siddhu in a material particular in so far as the offence of professional misconduct is concerned.
In Siddhu’s case he knew well what the purpose of the Bala SD was drawn and sworn for. He cannot deny that knowledge now having for so many years been embedded in the heart of the political circus now know as the Altantuya affair.
A lawyer as an officer of the court cannot afford to be negligent, callous or unconcerned about the truth or otherwise (meaning falsehoods) of a statutory declaration he draws up on behalf of a client.
A lawyer has a duty to caution his client (the deponent) about the penalties for falsehoods and the consequences of perjury, make every reasonable effort to determine the veracity and the truth of the statements the deponent swears to before him (especially where he assists in drafting it contents) as an SD.
Where the lawyer does not witness the signing of the deposition in the SD, then he ought to at least be certain that what he has drawn in the SD on behalf of the deponent is as far as he is able to reasonably ascertain, the truth.
A lawyer has an overriding obligation to ensure the document is neither false, over stated nor made without regard for the truth or prospect of proof being reasonably deduced out of what is deposed to in the SD. It is after all evidence.
WHO DID BALA BELONG TO?
A client as Bala is no one’s property especially as a witness in proceedings. In order to demonstrate there was an ongoing exclusive relationship between lawyer and client in Siddhu’s case, the panel of inquiry must be shown that there was an unconflicted relationship between Bala and his interests as a client of Siddhu and Siddhu.
Conversely with Abraham the panel must be shown there existed an unconflicted relationship between Bala and Abraham at that point of time that Bala approached Abraham to act for him on. Further it must be shown to the tribunal that those interests of Bala’s for which Siddhu is said to have originally been retained by Bala to act on his behalf (if in fact he was) did not conflict with any of Abrahams ethical obligations to Siddhu as a lawyer.
WHOSE CLIENT WAS BALA AND WHEN DOES A RETAINER TERMINATE?
Critically the relationship between Bala and Siddhu can only be resolved by Siddhu placing before the tribunal evidence of the written retainer he claims between himself, his firm and Bala signed by the parties. Equally important a question will be how Siddhu was paid for his services to Bala a man said to be impecunious (and subjected to the torments of temptation with bribery by many).
Once that element of the professional lawyer client relationship between Siddhu and Bala is established as proof of what it purports to be, it is then open to Abraham to rebut Siddhu’s claim by demonstrating that the matter Bala came to see him for (the controverted later Statutory Declaration) did not in fact place him, Abraham (and not Siddhu) in a position of potential conflict with his ethical obligations to Siddhu and the legal profession act.
This simply means that at the time Bala approached Cecil Abraham, Abraham did not have an existing retainer to say act for Siddhu in some other matter: or that Abraham was not engaged in a matter with a nexus to Siddhu’s interests conflicting with Bala’s instructions to Abraham or Siddhu.
If such a relationship arose through Bala lawyer hopping it could well have breached Abraham’s ethical obligations to both client (Bala) and Siddhu under the Legal Profession Act. No such conflict is known to have existed. If it did it has not been placed in evidence before the tribunal from our knowledge.
If Abraham is to be believed, then Abraham was dealing with a matter that necessarily by implication of Bala’s conduct in approaching him, ended the retainer between Bala and Siddhu.
TERMINATION OF RETAINER- MOVING FROM CIVIL TO CRIMINAL
In approaching Abraham over the issue of the SD, Bala is necessarily and by implication of his conduct suggesting that there was a problem with his previous SD drafted by Siddhu. It is implied that something caused Bala to either loose his confidence in Siddhu or feel that he needed to end his retainer with Siddhu.
In such circumstances as described above all that needs be done then is for Bala to formalize the termination of his retainer with Siddhu in writing or for Abraham to write to Siddhu with a note from Bala confirming his instructions he is terminating his retainer with Siddhu.
What is important to note at this point is that the relationship now changes and Siddhu becomes a potential witness in a criminal matter involving Bala and his SD with professional misconduct implications attached to it.
Further still in circumstances as sensitive and controversial as that Bala had made out about his personal security and safety, it would not have been unprofessional or unethical for Abraham not to have informed Siddhu immediately or at all about the change of Bala’s circumstances until perhaps after receiving advise from the police to who he Abraham should have reported Bala’s approach to him over his complaint.
Given the circumstances of Balas history of duplicity and contradictions and his paranoia of the police it would be excusable if he instructed Abraham not to contact the police.