SD’S & THE SIDDHU FACTOR
PRIVILEGE -AMRICK SINGH SIDDHU & THE TRUTH
Whilst there is an element of truth to what Eric Paulsen (Lawyers for Liberty) suggests about protecting lawyer-client privilege his definition of privilege is misinformed, fanciful and incomplete. His definition of privilege appears to be dictated by convenience and political expediency rather than by fact.
Privilege, whether it is lawyer client privilege (which can only be waived by the client), “without-prejudice” privilege or common interest privilege may be said to be waived once it is no longer confidential.
The vast majority of Malaysian lawyers, especially those who commingle their professional obligations with their political loyalties as quasi politicians, breach their legal obligations to their clients on a daily basis by waiving privilege- their client’s privilege without their client’s consent.
Lawyers like Amrick Singh Siddhu, erode, weaken, that lawyer-client privilege on the steps of the courts, before the Press and their cameras with relative impunity and with disastrous effect to their clients. They make statements about matters that are otherwise confidential and not for public consumption. They release confidential material to the public sans their client’s consents. In the process they end up jeopardizing their clients’ causes, in the process breaching their own ethical and professional obligations as lawyers.
For many Malaysian lawyers, getting caught up in the glare of instant media fame, the pursuit of personal glory and the advancement of their political ideologies, overrides the interests of their clients and their ethical and professional obligations to them.
The majority of clients however are unfortunately blissfully ignorant of the destruction of that privilege, sacrificed by their lawyers; And sadly they are unable or unwilling do nothing about it.
The Malaysian Bar by its silence appears to condone these breaches of lawyer client privilege by lawyers like Amrick Singh Sidhu, Sivarasah Rasiah, Karpal Singh and Gobind Singh Deo. Their silence may be because the Malaysian Bar is itself ignorant of the importance of privilege, the importance of preserving it and of how that privilege can be lost through ignorance and through the negligence of lawyers.
The most recent example of such an aberration, is the Morais Statutory Declaration (SD) and the conduct of Morais’s lawyer Amrick Singh Sidhu in its aftermath.
The Charles Morais SD is now well and truly in the public domain. It contains serious, highly selective, misleading, inadmissible and damaging material against individuals named in it. It is devoid of any reference to primary or secondary evidence capable of supporting the statements contained within it.
AMRICK SINGH SIDHU- HOW AND WHEN NOT TO DRAFT AN SD OR TO BE INVOLVED IN IT
Amrick Singh has become a lightning rod for many unfounded allegations against the Prime Minister and his wife in recent times. This is largely because of Amrick’s history of being rather cavalier in his approach the law (mixing it with his political ideologies) and certainly from his conduct of late, driven by choice.Personal choice.
Sidhu has in the past made several public statements, or supported claims by others alluding to what he asserts is the culpability of the Prime Minister and his wife Rosmah in the capital offence of murder . Nothing could be more serious than alleging murder against the serving leader of a country, any country let alone Malaysia.
Amrick has further implicated himself, not once, but on several occasions when he advanced the proposition via the popular media, social and political platforms, that the Prime Minister and his wife Rosmah are in his and the Malaysian Bar’s estimation, culpable in the murder of a number of people including Altantuya Shaaribuu. None of their assertions though have been made with the minimum legal standard of proof to support. Amrick is not alone in this regard.
The most egregious example of Amrick’s conduct in this regard was the abuse of his client, the late Balasubramaniam Perumal whose “SD” he admits to having drafted in no uncertain terms with scant regard ‘for the truth or otherwise to what was contained in it’.Lawyers who engage in politics whilst in practice will have to account for their failures like everyone else. It is a risk they assume for reward.
PRIVILEGE -PROFESSIONAL RESPONSIBILITY AND EVIDENCE
There can be no privilege as claimed by Amrick or Charles Morais over the Morais SD. If Amrick on behalf of his client is claiming legal professional privilege, then he prima facie must have created that SD for a dominant purposes such as litigation (or some other dominant purpose which would necessarily attract the claim of privilege – or for providing legal advise): And in whose cause would that advise the dominant purpose of which must be litigation or advise been given for?
Once a client does what Charles Morais has done (publish a privileged document) that privilege is necessarily waived or lost. Amrick having admitted to assisting in preparation of that document has much to answer for it. For its creation and for its content.
A side note here: Lawyers are by their training required to take certain precautions when accepting instructions and interacting with their clients. In the course of that interaction they must determine how much risk they are prepared to assume especially when drafting unsubstantiated instructions (statements) as serious as the allegations Amrick appears to have drawn in the Morais SD.
Every document brought into existence between lawyer and lawyer, or lawyer and client, in any proceeding or negotiation is necessarily evidence. It is merely a question of whether or not and when the tender of that document (evidence), will be called; and whether or not it will be admitted into evidence at a hearing or trial.
A DUTY OF CARE
There is also a primary “duty of care” principle that underlies this proposition where lawyers and their conduct is concerned. It is an integral part of what is called professional conduct.
A lawyer acting prudently will always be vigilant of the content and nature of documents they bring into existence, with or without the client. These document are likely to be called for at any stage of proceedings or investigations through the regime of disclosure. And to claim privilege especially in situations such as with the Morais SD requires a very strong argument capable of persuading any competent court that a claim of privilege should apply or be upheld after privilege has been waived.
The problem for Amrick is this: what class of privilege is Amrick claiming and over what document does he claim that privilege? Whose privilege is he fighting to protect?
Amrick cannot once more (as he did with the late Balasubramaniam’s matter) claim he “was not concerned for the truth or otherwise” of what was contained in the Balasubramaniam SD. There are rules, legal, ethical, professional and moral rules that bind a lawyer in the execution of his professional obligations as much as it does the client where it concerns the truth, whether in the form of affidavits or SD’s.
It is simply not correct to assume as many lawyers do, that an SD is an instrument for their protection when accepting instructions from a client and ‘to hell with what the client says in his SD’.
THIRD PARTY PRIVILEGE AND INTERESTS TO PROTECT
Paulsen and other lawyers may scream till they are blue in the face about breaches of legal professional privilege as they allege. But Paulsen must also know who to direct his screams at in this case.
Amrick’s conduct does not attract legal-professional privilege, lawyer-client privilege or any other form of privilege including common-interest privilege. The primary maker of the statements in the Morais SD has waived any privilege by placing the SD in the public domain.
Relevantly, as the SD does affect the interests and reputations of third parties such as those who are adversely mentioned in the SD, they too (the third parties) may now claim privilege over the document in its entirety, or at least to the extent it affects their interests.
If these affected third parties do not protest against the IGP’s requests to question Amrick Singh Sidhu about the contents of the Morais SD, Amrick has nothing to hide behind and has a duty to co-operate in any investigation by the Police or other agency, into allegations made either by him, Charles through Morais or by Charles Morais through him.
IMPLICATING THE LATE KEVIN MORAIS IN CRIMINAL CONDUCT
The Charles Morais SD contains allegations of serious criminal misconduct by not only the alleged murderers of his late brother Kevin Morais. They also (by implication of statements by Charles Morais), imputes serious criminal conduct and breaches of professional conduct on his own late brother Kevin Morais.
Did Amrick Singh Sidhu caution Charles Morais or offer him advice (as he ought to have) as to the consequences of making such statements in the nature of what he advanced in his SD without the evidence to support or a reasonable belief in the truth of those statements?
Was Amrick negligent or reckless in the execution of his professional obligations to Charles Morais by failing to advise Charles or to point out to Charles the possible implications of what he was alluding to about his late brother Kevin Morais in his SD? :
Or is this another case of, as Manjit Dhillon, Amrick’s lawyer claimed at the July 2008 press conference (Malaysia Kini on your tube) of Amrick Singh Sidhu not caring about the truth or otherwise in the SD as he did with Balasubramaniam?
COMMON INTEREST PRIVILEGE AND THE TRAP FOR AMRICK SINGH SIDDHU
Let us hope that after all the effort Amrick has once more made in attempting to besmirch the reputations of politicians (in particular the PM and his wife), he is not going to claim common interest privilege over Charles Morais’ SD. There are reasons for it and I need not go into them here in any detail.
What has occurred by the actions of an over zealous over confident Amrick Singh Sidhu is the result of lawyers engaging in politics alongside their practice as lawyers and not knowing where to draw the line.
The key rule in claiming common interest privilege is to:
a) avoid co-mingling legal advice with non-legal matters or administrative tasks
b) never to refer to legal advice in non-legal documents or public statements
c) never to refer to legal advice in communications to third parties who do not share a common interest
d) retain common lawyers
e) when in doubt about whether a third party has a sufficiently-common interest in legal advice, obtain a confidentiality undertaking before disclosing the document
f) mark the words “privileged documents” as ‘[insert company or client name] claims legal professional privilege over this advice and disclosure is not permitted to anyone outside of [insert client or company name] without legal advice’.
g) finally about common-interest privilege – sharing the privilege brings with it a shared responsibility in maintaining it.
Briefly, a party to a common interest privilege claim, may destroy the privilege for itself and all of the other parties to that claim. This is what Charles Morais would have done by publishing his SD in the Sarawak Report.
SPEAKING ILL OF THE DEAD (OF KEVIN MORAIS) VIA AN SD – AMRICK’S FAILURES
When challenged, Charles Morais will have a different story altogether it may be safely assumed. It is called self preservation. And that is when Amrick will likely come undone again.
Amrick Singh Sidhu ought to have reasonably known that when Charles Morais affirmed in his SD the claims he had made via the SD it involved a further and more serious set of allegations. These allegations are:
i) That Charles’ late “beloved” brother Kevin Morais had in fact stolen or misappropriated government property unto himself without lawful authority. The theft by Kevin Morais as alleged by Charles Morais and supported by Amrick Singh will have occurred when Kevin Morais as alleged completed the downloading and dissemination of confidential government documents about a case.
ii) The allegation that Kevin Morais leaked to his brother Charles, without lawful authority; and in breach of his duty as a public prosecutor, documents that he Kevin had prepared in charges (charge sheets) against “certain high level government personalities”,then passed that (confidential) information on to Charles in a pen drive.
The allegation in this regard on the face of it is implausible as it is inculpatory of the late Kevin Morais’s misconduct as an officer of government and the courts from all accounts.
WHAT THE CLAIMS PROVE-IS THERE INDEED A PEN DRIVE?
If the Charles Morais SD is to be believed as the Malaysian Bar, Eric Paulsen and Amrick Singh appear to think, then all 3 Morais brothers appear to be tainted by their own evidence against each other. None can be believed and certainly the lawyers who assisted the Morais’ stand condemned by their own actions (and inaction) in this regard.
That information (in the pen drive) if it does exist as claimed by Charles Morais was not the property of the late Kevin Morais to download or give to anyone else for the purposes Charles Morais claims the late Kevin Morais downloaded it for (too much LA Law TV fantasies here).
Further if Charles Morais did really love his “dearly departed” brother why would he implicate him in a criminal conspiracy alleging professional misconduct in his role as an officer of the court in life?
And further still by Charles Morais making admission to possessing the information in a pen drive now he claims he has possession of, he is admitting to receiving stolen property at the very least or being complicit in the dissemination of privileged information or material possibly covered under the Official Secrets Act or its equivalent.And Amrick may well be aiding him in this regard.
Such information, if the allegations are indeed true, was not Kevin’s Charles’ or Amrick Singh Sidhu’s privilege to waive on behalf of anyone or to present to the Sarawak Report to disseminate. In participating in that process Amrick is in our view compelable and has to answer for his misconduct.
AMRICK’S DUTY AS AN OFFICER OF THE COURT AND HIS DILEMMA WHEN THE INFORMATION OF KEVIN’S ALLEGED MISCONDUCT CAME TO HIS KNOWLEDGE
i) Did Amrick Singh Siddhu advise or alert CharlesMorais (as he had a duty to do) of the consequences of firstly making a declaration in the nature of the SD Charles Morais made before him?
ii) Did Amrick act without regard for the fact, once it was drawn to his attention that he and Charles Morais were now possibly furthering an illegal enterprise; and
iii) Was Amrick paying attention to Charles Morais’s allegations or become aware at any stage of the consequences the alleged criminal conduct of the late Kevin Morais as alleged by Charles Morais (if Kevin did unlawfully download the information Charles Morais claims Kevin gave him in a pen drive) could end up in court?
iv) Was Amrick Singh Sidhu not aware that the SD could become the subject of evidence in court proceedings,
v) Was Amrick Singh Sidhu not aware that failure to properly vet the outrageous statements of Charles Morais and to seek supporting evidence from Charles Morais for his allegations in the SD before drawing up and or witnessing the SD could very likely mislead the courts?
vi) Did Amrick aid Charles Morais or anyone else in any way in conveying a copy of the Charles Morais SD to the Sarawak Report or any other third party?
Why did Amrick Singh Sidhu not withdraw from taking instructions when he was without the benefit of supporting primary or secondary evidence before drawing up and witnessing the deposition of Charles Morais in his SD? Why did he go public on the SD instead?
THE IGP’S POSITION-AMRICK’S DILEMMA
The IGP appears to have received good strategic legal advice in demanding Amrick Singh come to Dang Wangi to explain the contents and the events leading to the bringing into existence Charles Morais’s SD. He would also demand of Amrick Sidhu the purpose of that affidavit now that Charles Morais has waived privilege on the document.
The SD incorporates the use of unlawfully/ illegally obtained information, classified information protected under the Official Secrets Act and a breach of legal professional conduct and the possible concealment of a crime amongst many other breaches on Amrick’s and Charles Morais’s part.
Amrick had implicated himself previously by bringing into existence a document which made similar unsubstantiated serious allegations of a criminal nature or a document which imputes criminal conduct on the holder of the highest office in the land. It is not something anyone can claim privilege over or ignore in the IGP’s position.
CHARLES MORAIS’ SD IN A LIFE OF ITS OWN
The Charles Morais SD has now taken a life of its own and Amrick has no protection or control over it. He must answer to any inquiry by the police over its scurrilous and criminally defamatory allegations against the Prime Minister and his wife purportedly made by his client Charles Morais and yet again apparently aided by Amrick Singh Sidhu.
A lay person with little education is liable to be charged for offences that arise from publishing unsubstantiated allegations at least under the civil law. A lawyer who ought to know better is more liable and ought to have acted more responsibly and with greater care in this regard.
The police have every right to bring Amrick in and question him on the SD he is reasonably believed to have been complicit in creating for what now appears to be a wider purpose than he cares to admit to.
Amrick Singh Sidhu’s previous conduct in such matters is that proverbial albatross around his neck, come to haunt him now.