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 its own making by demanding, that a hearing into allegations of professional misconduct against Cecil Abraham, a lawyer of their own ranks, be held in public.
Cecil Abraham is alleged to have, in short, ‘concocted’ the Statutory Declaration (SD) made by the controversial late Balasubramaniam Perumal (Bala) a private investigator who claimed to have known everything behind the life and death of Mongolian prostitute Altantuya Sharibu.
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 into 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 the woman called Altantuya.
Bala also claimed to have had first hand knowledge of the circumstances surrounding the mysterious and controversial death of Altantuya Sharibu.
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. He provided no proof of his assertions nor did any of the evidence in the courts on the trial of the two people convicted of murdering Altantuya corroborate Bala’s exaggerations and fanciful stories.
Bala’s recollection of events, “facts” and “statements” about the Altantuya affair, whenever presented an opportunity to air “his role” as a bodyguard of Razak Baginda and his time with Altantuya were at best irrelevant, inconsistent or hazy the second time round. Much of his recollections on reflection were made up by the man caught up in the spotlight of someone else’s misery.
BALA-AMRICK SINGH SIDDHU-SIVARASA 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 to also in the process author and edit its contents.
There are words in the Bala SD that did not belong in Bala’s limited vocabulary. Siddhu, with Sivarasah and Dhillon in the now infamous “press briefings” of 4 July 2008 admit to their part in crafting Bala’s litany of lies they call his SD. Lies because Bala’s statements have not been proved to be anything else and appear to have no basis at all 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 any hearing against Cecil Abraham be seen and for it to be impartial and fair, the Malaysian Bar and Abraham should not have any part in the selection process of the panel to conduct that hearing.
The Malaysian Bar, because it is a political organization and their call for investigating Cecil Abraham a political exercise.
Cecil Abraham on the other hand should have no part in the selection of the panel for the lesser reason that he is the accused, the subject of disciplinary proceedings brought against him by the Malaysian Bar.
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 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 self 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. (and 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. (underlined for emphasis by the author)
“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 statement by Siddhu made on his behalf by his lawyer Dhillon does not constitute professional misconduct, professional negligence or misleading conduct by Siddhu, Dhillon and Sivarasa then the tribunal and the Malaysian Bar have a serious problem which goes to their credibility and competence.
Such a statement as that made by Dhillon on Siddhu’s behalf and not withdrawn or retracted by Siddhu or Dhillon at the earliest possible opportunity to do so and within a reasonable time, incriminates Siddhu in a material particular in so far as the offence of professional misconduct and professional negligence is concerned.
In Siddhu’s case, he either knew very well what the purpose of the Bala SD was drawn and sworn for or at the very least he was reckless as to what Bala and his handler’s were attempting to achieve by that SD. Dhillon corroborates this point very well and willingly at the press briefing referred to here.
Siddhu 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 or any other document he draws up on behalf of a client.
An SD of the Bala variety was intended and used as evidence to further allegations against Malaysia’s Prime Minister and his wife in an attempt to falsely implicate them in the murder of prostitute Altantuya Sharibu.
Knowing or reckless as to whether the contents of the evidence (being the material in the SD) was true or otherwise is an explicit admission to misleading conduct. And it misled many an agency, the public and distorted the truth about Altantuya and how she died.
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. Amrick Singh appears to have avoided that duty of his as a lawyer assisting Bala.
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, accurate in the circumstances, reliable and 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.
Amrick Singh Siddhu wantonly and deliberately avoided all of his professional responsibilities in this respect.
WHO DID BALA BELONG TO?
At law, no one has property over a witness. This is especially true as concerns a witness like Bala in court 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 and be satisfied that there was an unconflicted relationship between Bala and his interests as a client of Siddhu. Siddhu must demonstrate the unconflicted interests of his and those of with Sivarasah and Dhillon in a given matter or retainer.
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.
Further still it must also be shown and satisfactory to the tribunal that those interests of Bala’s for which Siddhu is said to have originally been retained by Bala (if in fact he was) did not conflict with any of Abraham’s ethical obligations to Siddhu as a lawyer when he is said to have taken on a retainer from Bala.
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 by 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 against him. He does this by demonstrating that the matter Bala came to retain him for (the controverted second Statutory Declaration) did not in fact place him Abraham (and not Siddhu) in a position of potential conflict with his (Abraham’s) ethical obligations to Siddhu under 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, Dhillon, Sivarasah or Siddhu.
If such a relationship arose through Bala’s ‘lawyer shopping’ 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 or declared to exist or claimed by Bala, Siddhu or Abraham.
If such a conflict (or potential for conflict) did exist, it has not been placed in evidence before the tribunal or any other tribunal from our knowledge. The Malaysian Bar as a starting point should because of its own rules have been informed by Siddhu of that conflict. The Bar it appears was not.
However and judging from the Malaysian Bar’s recent history of direct involvement in politics, and amongst other matters, the Altantuya matter, it could well have been aware of Siddhu’s conflict but chose instead to ignore it.
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. Siddhu after all by his trade mark conduct would have compromised any lawyer client privilege by going public with matters relating to Bala, his evidence and matters relating to his alleged involvement in the Altantuya affair.
There is another possibility: Bala may have felt that the Siddhu drafted SD was not a reflection of what he Bala had intended to put down in a Statutory Declaration and wanted the SD rectified or withdrawn and replaced with a new SD that more accurately reflected what he had to depose to under oath.
In such circumstances as described above, all that was needed was for Bala to formalize the termination of his retainer with Siddhu by putting it in writing, or for Abraham to write to Siddhu with a note from Bala confirming his instructions that he Bala would be terminating his retainer with Siddhu in favour of the new retainer with Abraham.
At this point the relationship between the parties changes. Siddhu becomes a potential witness in a criminal matter involving Bala and his SD. Such a situation carries with it professional misconduct and criminal implications and possible sanctions against both Bala and Siddhu, possibly vis a vis each other.
Further still in circumstances as sensitive and controversial as that which Bala had made previously 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 (retainer).
He would have logically waited perhaps, after receiving advise from the police, to who Abraham should have reported Bala’s personal safety concerns. (which would include informing the police of Bala approaching him over his complaint and the personal safety issues).
Given the circumstances of Bala’s history of duplicity and contradictions and his paranoia of the police it would be excusable if he instructed Abraham not to contact the police. But that of itself does not exonerate Siddhu, Dhillon and Sivarasa.