EXCEPTIONALISM AND THE MALAYSIAN BAR III
THE MALAYSIAN BAR AND ITS DOCTRINE OF EXCEPTIONALISM
“Tommy Thomas, the senior lawyer who proposed a motion to refer Tan Sri Muhammad Shafee Abdullah to the Bar last year, explained today that he had done so because of the latter’s “extraordinary” conduct after his Federal Court victory in Datuk Seri Anwar Ibrahim’s Sodomy II case” (Star- repeated on the Malaysian Bar website)
Tommy Thomas in his evidence as republished on the Malaysian Bar (Bar) website excoriates the ‘conduct’ of Muhammad Shafee (Shafee) in the aftermath of the Anwar Sodomy II trial and the appeal that followed.
Shafee many will recall brought the curtains down on the Anwar Ibrahim soap opera . The Anwar Ibrahim trials consumed the nation (and to some extent the world) for its audacity and its polarization of an already fragile and divided nation. Relevantly Shafee’s axe revealed a stygian and iniquitous legal farce engineered by elements from within the Bar. Anwar and the Bar in this respect represented a wider conspiracy to bring down government in Malaysia.
Those elements within the Bar, Tommy Thomas and his co-defendants in the Shafee defamation suit (excepting former Appeal Court judge VC George Judge) acting in concert with Anwar Ibrahim cry foul over what they say is ‘extra ordinary’ sanctionable conduct by Shafee going public with details of the controversial and much publicized trial of Anwar Ibrahim. Their grievance against Shafee does not stop there.
The Thomas Ambiga Bar axis allege breaches of the Legal Profession Act 1978 (Act) by Shafee which they say warrants sanction against the man by a disciplinary committee of his peers.
REVISITING THE RULES OF THE 1978 ACT
Rule 5 of the Legal Profession Act 1978 deals with publicity by lawyers. Rule 43 deals with etiquette (not the right word for what the rule is intended to convey) whilst Rule 44 deals with the prohibition in carrying on “a trade” (meaning other forms of employment for gain) whilst also practising as an advocate of the High Court.
The rules within the Legal Profession Act as in its currently drafted form like much of Malaysia’s legislation is pregnant with solecism which makes interpretation difficult.
There are other forms of conduct implied in each of these 3 sections of the Act each of which we dealt with in our previous 2 articles on this topic which are analysed in context here without direct reference to the section numbers applicable to each rule.
Interestingly, as threadbare and poorly drafted as those Rules are, the Malaysian Bar appears to have found in them something by which to persecute and defame lawyer Shafee. In applying the Rules as their fig leaf to conceal a hive of incompetence and partial behavior within the Bar, Thomas and Ambiga lead the charge against Shafee.
This is a Bar that protects sedition and treason but punishes the ascendancy of truth and the law where it does not favour them or their view of the world.
Here are some reasons why the Bar Thomas, Ambiga and others in their ‘star chamber’ are being less than honourable, honest whilst being highly selective in their application and interpretation of the law.At the level of the Malaysian Bar they are the law…..so it seems. At the street level they proclaim themselves to be guardians of democracy and civil liberties.
“civil liberty is a fragile thing and, even in a democracy, political power is a dangerous elixir for some”. Sir Isaiah Berlin
WHY SINGLE OUT MUHAMMAD SHAFEE FOR A COMMON PRACTICE BY THE BAR?
At Anwar’s side throughout his ordeal were lawyers Shankar Nair, Sivarasah Rasiah (Sivarasah) and a host of other lawyers who appeared like the proverbial being from the woodpile. All of these lawyers aided and abetted in the propagation of the political ‘gospels’ of Anwar’s righteousness, professing his innocence whilst shamelessly promoting their individual careers at the expense of the truth, the facts and the Legal Profession Act. No one seemed to mind then. No one was reprimanded publicly.
Each of these lawyers by their conduct and of their own material is more guilty of breaches of the Act than Shafee and the sum total of the rest of the Bar could ever be guilty of in a lifetime of breaches of the Act.
The Anwar lawyers engaged in inappropriately attacking the judges who presided over Anwar’s trials. They also attacked the prosecution with relative impunity for over a decade. It seems that this axis group of lawyers had some undisclosed immunity from the Bar against any legal or disciplinary action being taken against them for their misconduct.
None of this axis group of lawyers saw fit to distance themselves from Anwar’s outrageous attacks on the courts and judges. None of them saw fit to correct Anwar’s outrageous remarks and those of their own against the courts and judges; and neither did any of them appreciate the grievousness of what Anwar and they as the Bar had done in attacking the courts and individual judges.
Instead lawyers like Sivarasah, Shankaran Nair, Lim Chee Wee, Karpal Singh, Deo Karpal Singh, retired judge NH Chan, Maria Abdullah Chin, Tommy Thomas, Ambiga Srinivasan, Zaid Ibrahim and the unfortunately named Lateefa Koya acting within the political wing of the Bar stood by silently in apparent approval of Anwar’s and the Bar’s misconduct.
By their collective silence they tacitly encouraged Anwar’s outrageous language and actions. In addition to this they scheduled press conferences, liberally advocating in support of Anwar’s attacks in breach of the law at every given opportunity and in breach of the Act.
It was publicity and self promotion for each of these lawyers. And any publicity as it is often said, is good for business.
WHY WAS ANWAR DEFENDED BY HIS ACCUSER
A lawyer it is said at his admission to the courts, swears to preserve and uphold the dignity of the courts at all times. Not according to Thomas and his cohorts in the Bar, nor to those who sit in the dock beside him it seems. (Again VC George is the exception……more on why he is an exception in the next installment on the Malaysian Bar).
“It was clear to me that the plaintiff’s conduct constituted serious misconduct and brought disrepute to the legal profession as a whole. Additionally, never in our history did a Public Prosecutor bring so much publicity to himself on a successful conviction” Tommy Thomas.
The hypocrisy in the Bar’s double standards evident in Thomas’ statement here.
Those same standards and rules as some in the Bar breach with impunity and apparent immunity is further manifested in the summary of events describing the misconduct of another ‘famous’ lawyer, Anwar defender, opposition parliamentarian and ‘legal expert’ appearing below:
- The late Karpal Singh’s outburst in parliament in 1998 underpinned in a statutory declaration he waved in parliament first leveled the allegation of Anwar Ibrahim’s sexuality, his sexual misconduct (sexual assault) and his homosexuality.
- None of the Bar including Tommy Thomas saw it fit to bring Karpal before the disciplinary committee of the Bar then or after that outburst.
- Karpal was after all apart from being an MP also a practicing lawyer bound by the Act and its rules.
- Anwar at that time of Karpal’s allegations of sexual assault against him did not have a case to answer before the courts.
- Karpal laid the groundwork for Anwar’s prosecution and some say persecution.
- Karpal had no legal or moral justification for his outing Anwar in 1998.
- Karpal’s conduct was a clear breach of Legal Professional Rules.
- Karpal’s conduct was Professional Misconduct the worst and of an indefensible kind.
- Karpal outed Anwar as a homosexual using parliamentary privilege to attack the same man
- The Bar, Thomas, Ambiga, Karpal and his son Deo would all later as hypocrites and mercenaries disingenuously run to defend Anwar on the same allegations made against Anwar by Karpal in parliament. Only this time the allegations would come from the DPP made possible by Karpal Singh’s disclosures in parliament.
- The Bar backed Karpal Singh
- Anwar was far more vulnerable then than the Bar claim he is now as ‘a defenseless prisoner‘ in incarceration.
Karpal’s conduct (or more appropriately misconduct) goes to the heart of the moral legal dilemma lawyers face as to when and whether they ought to defend those whose conduct they hold to be morally and legally repugnant and wrong.Karpal made his position clear in parliament.
It appears according to the Bar that Karpal could make the wrong choices and be celebrated just for it for being ‘one of them’.
LIKE FATHER LIKE SON LIKE THE MALAYSIAN BAR
Gobind Singh Deo, Karpal’s son, a sometime Anwar Ibrahim advocate and anti government agent provocateur is on record as having attempted to mislead the Teoh Beng Hock inquiry by trying to pass off at the inquiry a document purported to be an ‘unsigned letter’ said to have been authored by certain unidentified members of the MACC.
Gobind Singh Deo (on discovery the letter was a fake) nonetheless was not reprimanded for his contempt of court which is what the act of trying to pass off a false document in order to mislead the inquiry amounts to.
BALASUBRAMANIAM, AMRICK SINGH, DHILLON AND SIVARASA
One would recall lawyers Amrick Singh Siddhu, Manjeet Singh Dhillon and Sivarasah Rasiah whilst supposedly defending the late Balasubramaniam ran a series of lectures, and gave press conferences to publicise serious unfounded criminal allegations against the Prime Minister Najib Razak.
None of those press conferences and lectures could be described as anything more than publicity stunts in pursuit of self promotion and a political agenda. There was no legal or factual foundation to their claims and innuendo against the Prime Minister using Balasubramaniam as their prop and scapegoat.
Disastrously for Amrick Siddhu he admitted to being the author of the controversial Balasubramaniam statutory declaration and ‘without regard for its truth‘. (Malaysia Kini youtube July 2008).
Amrick Siddhu who authored Balasubramaniam’s statutory declaration falsely attributing the document to Balasubramaniam, committed the cardinal sin of breaching client confidentiality, placing his client and himself on a conflicted course before the law, rendering them both vulnerable to prosecution. Yet Amrick was not prosecuted, disciplined or admonished by the Malaysian Bar for his misconduct.
Amrick Singh defiantly repeated the same offences in the Kevin Morais investigation appearing once more to have more than simply witnessed a witnesses’ affidavit. This time round he appeared to have gotten away with his misconduct once again unsanctioned by his peers at the Malaysian Bar.
Amrick and his colleagues misconduct is not an isolated event. It appears to be a Bar staple practised without consequence by Thomas and his Bar colleagues.
We continue with our examples and analysis of breaches of the Legal Profession Act 1978 by other prominent lawyers that are more celebrated than Shafee which have gone unpunished unnoticed by the Bar and its disciplinary board in the next chapter of Exceptionalism and the Malaysian Bar
Part 1 of Exceptionalism and The Malaysian Bar