Tuesday, March 17, 2015

Motion against Shafee Abdullah that cannot be debated at the moment by the Malaysian Bar

MARCH 16 — For those who are not aware, the Malaysian Bar held its 69th annual general meeting (AGM) on March 14, 2015. One of the motions proposed was by prominent lawyer Tommy Thomas, which was seconded by a retired Court of Appeal judge Tan Sri V. C. George, and it was pertaining to Tan Sri Shafee Abdullah’s conduct since February 10, 2015, after the Federal Court’s verdict in convicting Datuk Seri Anwar Ibrahim, in which Shafee was the lead prosecutor appointed by the Attorney General Tan Sri Abdul Gani Patail.

At the eleventh hour, i.e. sometime in the afternoon of March 13, 2015, Shafee managed to obtain an ex-parte injunction order from the Kuala Lumpur High Court, essentially stopping the motion to be debated at the AGM.
For those who do not know what “ex-parte” means, it is basically a unilateral mode of running to court by yourself to get an order from a judge to stop something or someone when time is extremely crucial and you are not really sure who are the parties involved at that moment in time and if you wait any longer irreparable damage would be caused.
The agenda for the AGM was sent out by the Bar Council on March 9, 2015, stating the proposed motion by Tommy Thomas and V.C George. All three were named as parties in the ex-parte injunction order.
It is common and public knowledge that Shafee went on nationwide road shows attempting to explain the conviction of Anwar. This is not in dispute.
So what is it about the motion that was so damaging to him that it couldn’t have been debated at the AGM that was not already public knowledge at that time?
I have read the proposed motion (which now is a public document) and therefore for the benefit of the Malaysian public who are not lawyers and who do not have access to the motion and its contents, let us see what was proposed. I am now essentially reproducing the contents of the motion. I am in no way “debating” the motion with anyone but merely stating my understanding of the motion. You would notice the word “apparently” and “it is said” appearing many times.
It is a trite principle that barristers are members of a noble and honourable profession, and are expected to behave honourably at all times. Apparently Shafee has not behaved in such a manner.
It is a trite principle that barristers are prohibited from conducting themselves in any manner that would bring the legal profession into disrepute or that is likely to diminish public confidence in the legal profession. Apparently Shafee has conducted himself in that very manner.
It is a trite principle that barristers must not permit their absolute independence and integrity to be compromised nor are they permitted to compromise their professional standards in order to please clients or for any other reason. Apparently Shafee has compromised.
Apparently, in total violation of these long established and cherished principles and values, Shafee has, from the time the Federal Court delivered its decision to convict Anwar on February 10, 2015, behaved in a repugnant and obnoxious manner that has brought the legal profession into disrepute.
Apparently since February 10, 2015, Shafee, as a lead prosecuting counsel, has wilfully and with impunity:
* held a press conference condemning Anwar, who cannot respond as a convicted prisoner serving time;
* drawn attention to his prowess, allegedly as a top-rate prosecutor;
* demeaned the accused Anwar and his legal team and the defences that were relied upon by them in court proceedings;
* given interviews to the traditional and on-line media concerning his performance as a prosecutor; and
* organised and participated in nationwide road shows, with a political party, for the purpose of insulting a convicted prisoner and bringing attention to his role in the conviction.
It is said that such extreme and outrageous conduct, unprecedented in the annals of the common law, cannot be allowed to continue and must receive strong condemnation from his peers.
It is said that a former Attorney General Tan Sri Abu Talib Othman, was quoted online on February 16 and 17, 2015, as stating that Shafee was advertising and promoting himself in the media, and called on Abdul Gani Patail to revoke Shafee’s appointment.
It is said that the totality of Shafee’s conduct since February 10, 2015, has been morally reprehensible and legally unacceptable, crossing all lines of decency.
It is said that Shafee, although supported by forces of the state, is not above the law, as Lord Denning reminded the Attorney General of the United Kingdom in 1977:
To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you ever so high, the law is above you’.”
It is said that Shafee’s conduct is in clear breach of Rules 5(a), 31, 32, 33 and 49 of the Legal Profession (Practice and Etiquette) Rules 1978.
It is said that Shafee has particularly breached Rule 33 of the 1978 Etiquette Rules, which reads:
An advocate and solicitor shall treat adverse witnesses and parties with fairness and due consideration and shall not minister to the malevolence or prejudices of a client in the conduct of a case.”
It is said that Shafee has violated the Legal Profession (Publicity) Rules 2001, Rule 591)(a)(ii) of which prohibits lawyers from publicising about themselves or their practice in any manner “that may reasonably be regarded as being… in bad taste… sensational, intrusive, offensive or in any other way unbefitting the dignity of the legal profession”.
Therefore, based on the above, a motion was proposed for the Malaysian Bar to pass a resolution to:
* Condemn, in the strongest of terms, Tan Sri Shafee Abdullah’s behaviour since February 10, 2015;
* Call on the in-coming Bar Council to immediately lodge a complaint against Tan Sri Shafee Abdullah with the Disciplinary Board;
* Urge the Bar Council to take all other steps to prevent Tan Sri Shafee Abdullah from continuing to bring the legal profession into disrepute.
However, as stated earlier, Shafee had obtained an ex-parte injunction and therefore until the injunction is lifted, the Malaysian Bar cannot debate on the conduct of Shafee.
However, I don’t see any “injunction” against the Malaysian public to debate on this and decide for themselves.
Puthan Perumal is an Advocate & Solicitor of the High Court of Malaya.
** This is the view of the individual and is not necessarily the opinion of Malay Mail Online.
- See more at: http://www.themalaymailonline.com/what-you-think/article/motion-against-shafee-abdullah-that-cannot-be-debated-at-the-moment-by-the#sthash.ImJxeu23.dpuf

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