Exceptionalism and the Malaysian Bar II
THOMAS THE ‘CONSTITUTION EXPERT’
Ambiga Srinivasan and Tommy Thomas two self proclaimed experts on the constitution and the law co-authored an ‘academic’ discourse for publication on the now defunct Nutgraph in 2009.
That piece focused singularly on the Anwar Ibrahim prosecution and was said to be presented in a constitutional law, public interest context. Amongst other things in Thomas and Ambiga’s dissertation on the subject are the following extracts:
“Is it in the national interest?: (Referring to the Anwar Ibrahim prosecution on charges of Sodomy):
“The starting point is the previous prosecution of Anwar for sodomy in 1998[,] which imposed incredible strains on our legal system, and made Malaysia the laughing stock in the legal world.”
“If Anwar were not a potential prime minister, and only an ordinary citizen, he would not face this prosecution. It is as simple, plain and obvious as that.”
“It would be sufficient to remind ourselves of the conduct of the prosecution in the 1998 case, the unfair publicity given by the mass media, the denial of bail, the ‘irrelevant’ rulings by the trial judge, the conduct of the trial itself, the amendment of the charges, the shameful parading of the mattress, the expungement of ‘inconvenient’ evidence, the finding of guilty, the lengthy sentence, the appeal to the Court of Appeal, and finally the appeal to the Federal Court.”
Thomas and Ambiga’s reasoning and their scurrilous attacks on the integrity of the courts was at best mediocre if not plainly embarrassing. At worst it was a cheap political stunt calculated to bring the courts into disrepute. At face value, it lacked any academic, intellectual or substantive value.
More importantly the pair produced no evidence or authority for their propositions about the reasons for the prosecution of Anwar Ibrahim in a constitutional framework. They merely decided that Anwar Ibrahim should not have been prosecuted. Strain on the legal system, the potential for Anwar to be a prime minister and thirdly the obligatory line that by their assessment “Malaysia had become the laughing stock of the world” does not of itself speak through the constitution of Malaysia.
Tommy Thomas is referred to by his fawning admirers at the Malaysian Bar and generously credited by the opposition as a “constitutional expert,” an undeserving tag for the man, is no constitutional ‘expert’. In fact he is no expert in any field of law from his comments on any subject on record.
A WAR CHEST- A FEEDING FRENZY -A LITANY -AND A NEST OF VIPERS
Apart from the Neo cons and a few right wing extremists no one else appeared even remotely interested in Anwar’s plight other than Anwar and his backers. The interested parties would include Karpal Singh and his entire family of lawyers and associates.None of Karpal’s associates in the opposition said anything when Karpal outed Anwar as a homosexual further alleging sexual assaults by Anwar through the cover of parliamentary privilege in 1998.
A lot of water has flowed under the bridge since. Karpal the hypocrite became one of Anwar’s most strident and vociferous backers and defenders since. A lot of money had changed hands since then, courtesy of the industrialists and NGO’s backing Anwar, not to speak of Anwar’s own significant and formidable war chest contributed to by Malaysian businessmen, the Neo Cons in Washington and a host of other undesirables.
AMBIGA AND THOMAS IN BREACH OF THEIR LEGAL AND PROFESSIONAL OBLIGATIONS
Furthermore the conduct of Ambiga and Thomas by that lecture was itself a clear breach of their sworn obligations to uphold and to preserve the dignity of the courts let alone the Act.
Neither Ambiga, Karpal Singh nor Thomas has produced any evidence at any time during the trial of Sodomy II capable of displacing the prosecution case against the Anwar Ibrahim in open court.
Interestingly and after such spectacular embarrassing failures of his analysis and constitutional arguments on his part Thomas invites the credentials of “constitutional expert. constitutional lawyer” in the media. These are credentials to which he is not properly entitled. He has demonstrated no capacity over the years to entitle himself to the use of these labels next to his name or to encourage others to when referring to him in the media to do so.
The words constitutional lawyer, constitutional expert is used improperly, is misleading and without merit to adorn an otherwise pallid set of credentials Thomas is burdened with as a lawyer “of 40 years”. It is misleading and a breach of professional conduct under the Act. It does not end there. The conduct of Thomas and Srinivasan has been an express violation of the constitutional rights of Malays, Muslims and other groups who do not subscribe to their civil societies agenda’s calling for the overthrow of government.
The Bar instead of censoring Ambiga has lent their full support to her and to Thomas and their allies against Tan Sri Shafee Abdullah.
SHAFEE’S COMMENTS OUTRAGEOUS BUT NOT AMBIGA’S TREASON
Ambiga Srinivasan is perhaps the most outstanding example of a lawyer whose breaches of the Act and the general law is legend. Her conduct over the past decade has been not only criminal but also a text book example of what Champerty and Maintenance is about.
In crude simpler terms, what Ambiga does, is to pimp the law. Her activities go beyond professional misconduct. It is treasonous, seditious, it is incitement, it is outrageous and it is unlawful. If self promotion had another name it would surely have to be Ambiga Srinivasan or Tommy Thomas.
Ambiga is a regular feature on youtube, Malaysia Kini, the Insider, the many Bar organized anti government rallies and conferences inviting self-promotion and publicity. She along with Maria Chin Abdullah, Amrick Singh Sidhu, Lateefa Koya, Steven Thiru and Sivarasah Rasiah the other lawyers with an anti government agenda on the Ambiga tail, have all made breaching the Legal Profession Act a virtuous pursuit. Yet they remain unpunished.
Ambiga and Thomas’s regular taunts of government, government agencies, their encouragement to incitement by NGO’s including the late Irene Fernandez is on record. Their modus operandi has been to litigate, to agitate for an outcome beneficial to their careers and political causes and the absence of punishment or even mention of a breach, remains the most egregious example of the Bar’s inconsistent application of its rules under sections 5, 43 and 44 of the Act where it applies to some members.
STANLEY AUGUSTINE’S 2012 INNER TEMPLE TAYLORS UNIVERSITY “BREACH”
In what could be described as a similar “offence” to that which Shafee is being persecuted by the Bar for, in 2012 at the Inner Temple annual dinner at Taylor’s university in Kuala Lumpur, lawyer (sometimes prosecutor) Stanley Augustine spoke as a guest lawyer on that occasion.
In his address Augustine made copious, sometimes crude and detailed references to a murder rape trial he successfully prosecuted earlier that year discussing the evidence in a tasteless speech.
There was no erudite academic quality to Stanley Augustine’s address that night. Augustine’s oration was pure self promotion and should have breached the language of ‘decency’ that Thomas says prevented him from repeating certain aspects of Shafee’s language to the media. But nothing was said.
Augustine in boast of his legal prowess divulged intimate and sometimes gory details such as the semen found in the victim’s genitals to his audience of ‘decent, rule abiding’ lawyers (whilst they dined on the fare serve that night).
No one from the Bar or the judiciary present at the event even batted even an eye lid at Stanley Augustine’s crude expose of what is said by the Bar’s present standards to be ‘extraordinary’ sanctionable conduct.
A High Court judge and a prominent foreign guest lawyer were amongst those present. No one complained. No one present including some of Malaysia’s more prominent lawyers remarked or commented adversely about the quality of Augustine’s speech. Perhaps that of itself says something of the quality of what the Malaysian Bar is comprised of.
What Shafee is accused of breaching under the Act is merely repeating a long held tradition amongst successful lawyers and judges the world over. Often the more successful amongst them are invited and expected to undertake discussion of matters they have presided over from time to time as part of their noblesse oblige.
Cochrane, Kharadashian Shapiro (OJ Simpson trial), Lord Denning (The Birmingham Six, Guildford Sour, Promissory Estoppels) and Harvard Law professor and active litigation lawyer Alan Dershowitz to name a few do this on a regular basis. The universities of London, Cambridge and Oxford hold special seminars and debating events for such lawyers to discuss their cases (especially the seminal ones) with their peers in order to educate. And in order to achieve this the gory details sometimes need to be aired but in a form lawyers are trained to do.
This is no criticism of Stanley Augustine’s decision to speak out about the case he prosecuted. Although some would say that his language and oration could have been delivered with a little more finesse.
“When asked today what function could be served by the discussion of Shafee’s conduct by the Bar when the Bar Council could have lodged the complaint on its own, Tommy pointed out that Shafee’s extraordinary actions required such discussion”.
It seems that to Thomas that his lawyer Ambiga’s attempts to bring down a government using foreign money and at the behest of foreign organizations is not extra ordinary. Ambiga’s conduct has never been the subject of critical discussion by the Bar or by Thomas’s colleagues in the dock.
Adopting the Bar’s position against Tan Sri Shafee; is Ambiga’s treasonous conduct not outrageous and sanctionable? is it not worthy of discussion at the same level or charge in court? is not Stanley Augustine’s public boasts “extraordinary conduct” which should be discussed? Is the Bar’s silence in the face of Ambiga’s, Thomas’s, Siddhu’s, Sivarasah’s Mariah Chin Abdullah’s and Augustine’s conduct in public not ‘exceptionalism?’
Thomas’s cherry picks the evidence he seeks to rely on in his defence against a charge of defamation by selectively ignoring his own breaches and omissions and those of his co-defendants over the years that spanned the Anwar Ibrahim trials.
DIFFERENT STROKES FOR DIFFERENT FOLKS- A DIALOGUE OF ONE
“Tommy said that while complaints against a lawyer for disciplinary action is typically private and confidential, there have been three or four occasions in his legal career when their behaviour required such attention, including the case involving lawyer V.K. Lingam”.
The unanswered question about the Lingham tapes is this: What did Lingham do apart from falling victim to an unauthorised taping of him in what is essentially a monologue by Lingham? Where were the other voices in that tape to constitute a dialogue that evidenced a conspiracy to corrupt the appointments process?
The Bar and 3 retired judges lent themselves to an incredulous investigation, an inquiry and a finding on behalf of a discredited Anwar Ibrahim reinforcing the belief that the Tommy Thomas’s of this world and those who support them are but men of straw.
The attack on Tan Sri Shafee Abdullah is personal. It has nothing to do with upholding in a consistent even handed or fair and equitable manner any law, rule or regulation of the Bar’s Professional Standards. And here is why:
When explaining further how Shafee’s conduct was said to be unprecedented, Tommy later claimed that the former had misbehaved and had brought the legal profession into disrepute.
The important question is this. How was the profession brought into disrepute by Tan Sri Shafee Abdullah’s conduct alone even if he did misconduct himself?
How reputable is the Bar and its members from the previous examples identified here. How fair and equitable is the Bar in the exercise of its powers and its discretion over its members? In order to defend one’s reputation that reputation has to be a deservingly good one. Does the Malaysian Bar by its own conduct as identified here enjoy a good reputation worth defending?
VOICES OF DISCONTENT SILENCED FROM WITHIN
Tan Peek Guat (29 January 2016 Bar) seems to think the Bar is selective and is not so fair minded when it comes to application the principles of justice and equity across the board. And he is not alone.
There are many other lawyers to whom we have spoken, who believe the Bar at its board level is stacked and politically partisan. They pick their causes which do not concern the interests of the wider membership using the Bar as its platform to pursue self interest..
Stressing that there should not be two separate rules governing one lawyer and the other members of the Bar, Tommy said “the best way for lawyers to not cross the line and committing misconduct is to avoid talking about cases they had handled.”
It would be difficult for Thomas to point to a practical example that would support his comments in this regard. He should have said that to Amrick Siddhu, to Anwar’s legal team, to those lawyers who bring the courts, their adversaries and the profession into disrepute by breaching the most fundamental legal profession rule which imposes an obligation on lawyers not to compromise or to divulge details of any live case without their client’s consent.
A lawyer is able to discuss publicly and to write about his experiences at the Bar if he has his client’s consent to do so, if his discussions are of an academic nature, where there is a public interest issue worthy of discussion and importantly where the issues or matter being discussed is already a matter on the public record and not embargoed by a court.
Exceptionalism and the Malaysian Bar II