Wednesday, March 18, 2015

No one should be judged without a fair hearing

8:00AM Mar 18, 2015
By Americk Sidhu

COMMENT One of the basic rules of boxing is that once you have floored your opponent, you are not allowed to kick him in the guts and then stand on his chest to proclaim victory.

That would be considered unsportsmanlike behaviour and you would be severely reprimanded for doing so. In fact, you would probably lose the match despite having had your gloved right hand in the air and your booted left foot on your opponent's lifeless body, declaring that dubious victory.

The same rules apply in every day civilised life. The human race has advanced to such an extent that it is now considered bad behaviour and against pure common decency to take unfair advantage of a situation to the detriment of an adversary in circumstances where that adversary is unable to retaliate.

In legal parlance, this is known as natural justice and is one of the basic tenets of the concept of human rights.

Fundamental to this entire concept is the right to be heard in defence of accusations made against you, or rather the right to a fair hearing (audi alteram partem). In other words, it is legitimately deficient to come to any conclusion unless two sides to any story are presented for adjudication.

I am of course making reference, once again, to lawyer cum prosecutor Muhammad Shafee Abdullah's notorious 'road show' held on behalf of the Umno government, subsequent to the Federal Court decision upholding Opposition Leader Anwar Ibrahim's conviction.

The absence of retaliation, because it is unobtainable, does not perfect those accusations but instead, renders them not only impotent but highly suspect as well.

Nevertheless, damage has inevitably resulted and the sufferer will be placed in an unenviable predicament of having to absorb this scandalous behaviour with nothing other than good grace.

That is not the way things are supposed to work. In human rights parlance, this is unadulterated subterfuge.

Misleading injunction

Before I begin, let me state that I have had sight of the recent claim Shafee has filed against lawyers Tommy Thomas, VC George, the entire Malaysian Bar and former Bar Council chairman Christopher Leong, in the Kuala Lumpur High Court.

The cause of action pleaded is defamation and conspiracy and in my opinion, wholly misguided, based on false presumptions and is totally unmeritorious in any event.
          
This suit was used as a launch pad to apply for and obtain an order for an interim injunction, dated March 13, 2015, preventing Tommy Thomas and VC George from moving a motion to censure Shafee for his behaviour subsequent to the Federal Court decision in Anwar Ibrahim v PP.

This injunction also prevented the members of the Bar present at the AGM on March 14, from discussing "any matter whatsoever relating to Shafee's conduct in the case of DSAI v PP in the Court of Appeal and the Federal Court".

The order granting Shafee this interim injunction was premised on the pleadings he had filed in court the day before.

Paragraph 8 of the statement of claim reads as follows:

"On 28th February 2015, the First Defendant (Tommy Thomas) seconded by the Second Defendant (Tan Sri V.C. George) published and submitted the said motion pursuant to Section 64(6) of the LPA to the Secretary of the Third Defendant (The Malaysian Bar) to discuss the conduct of the Plaintiff as DPP and advocate and solicitor in the case of Dato' Seri Anwar Ibrahim v Public Prosecutor in Criminal Appeal No: 05-47-03/2014(W) (in the Federal Court)".

This is grossly erroneous. It is also misleading.

The motion submitted for discussion very clearly stated it was Shafee's conduct after that Federal Court decision was delivered, which was in focus and not his behaviour during his tenure as deputy public prosecutor (DPP).

Therefore the grounds upon which Shafee obtained an injunction are completely incorrect.
Shafee was in possession of the motion before he filed his pleadings in court. The contents of this motion are succinctly and clearly set out in perfect English. The exact words of that motion have been reproduced by Shafee himself in his statement of claim, so there could have been no misunderstanding as to its contents.

Therefore the only conclusion I can come to is that Shafee obtained that injunction by misleading the court into believing the Bar AGM (annual general meeting) was set to discuss his behaviour as DPP in Anwar's matter before the Court of Appeal and Federal Court.

Bar effectively muted 

The reality of the situation is that the motion tabled before the Bar AGM was to discuss Shafee's behaviour after the Federal Court decision was delivered and whether that behaviour was unbecoming of a barrister, and if so, whether Shafee should be condemned for it and a complaint against him laid before the Advocates & Solicitors Disciplinary Board, by the Bar Council.

Shafee is a member of the Malaysian Bar.

Shafee therefore had every right to attend the AGM to defend himself against the motion to be tabled. He was also fully entitled to encourage members in favour of his conduct to support him in the discussions involved in that motion as well.

He was not present.

In other words, he would have been given the opportunity of explaining himself and refuting any allegations made against him. He would have had the right to be heard. This he chose not to do.

Instead he sought refuge at the High Court of Malaya at Kuala Lumpur and obtained a hastily applied for injunction which had the effect of gagging the entire AGM from discussing his behaviour, all 1,920 members present.

Remember, the motion presented was not to discuss the decision of the Federal Court. Therefore the assertions made by Shafee in his statement of claim that it would be clearly foreseeable that these discussions would be "contemptuous and seditious of the Federal Court and the Judiciary as a whole" are totally unwarranted and baseless.

Shafee is not a member of the Federal Court or the judiciary.

The boxer on the floor

I believe Shafee was afraid and embarrassed to face his peers because he knows he has behaved badly. Any reasonably minded member of the legal profession would regard Shafee's behaviour, post-Federal Court decision, as nothing less than atrocious and would have said so at that AGM.

Shafee would however have been given an opportunity to explain himself (if he had condescended to actually turn up).

He would have been given the right to be heard.

Instead, the Malaysian Bar was effectively muted against their collective will. Shafee unilaterally said everything he wanted to say with impunity, once again, and no one could retaliate, once again.

Now we know how Anwar must have felt. He is in prison. He is the boxer on the floor.

We, the members of the Malaysian Bar are all free men, yet we might as well have been behind bars as well... thanks to Shafee, the great defender of human rights.

Judge for yourselves.

This is the same man who has been a commissioner for Suhakam from 2004-2010 and is now Malaysia's representative and chairperson of the Asean Intergovernmental Commission on Human Rights (AICHR).

This same man now appears to be hell bent on ensuring no one speaks out against him whilst on his quest to ventilate, on behalf of an interested political party, much venom against that party's main opponent, who cannot be heard.

This is Shafee's version of human rights and the concept of natural justice.

Syabas Shafee. No wonder Umno loves you.



AMERICK SIDHU is a senior lawyer.
 
~ Malaysiakini

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