THE TRUE COLOURS OF THE MALAYSIAN BAR

Tan Sri (Dr.) Muhammad Shafee Abdullah

The Malaysian Bar, a body established under section 41 of the Legal Profession Act 1976 is endowed with perpetual succession, amongst other things . So whilst individual office bearers come and go, the Malaysian Bar remains the same incorporated body to account.

Yet, do the thoughts, statements and roles of its previous individual Presidents through the years always remain consistent and take the direction of voicing the cause of justice without regard to their own interests or that of the Bar, uninfluenced by fear or favour, in line with the perpetual succession of the Bar. Of paramount importance is that the Malaysian Bar must not be partisan in politically related matters. Sivarasa’s case made that point.

The acquittal of Tengku Adnan at the Court of Appeal, sometime in July this year after a verdict of conviction at the High Court did not come as a surprise, there were strong grounds in the 2:1 majority judgement supporting this . Subsequently, as is the usual course with the Prosecution, we know the Prosecution filed an Appeal to the Federal Court against the acquittal in order to compel written judgement to be provided. The latest development is that

the Prosecution has withdrawn this Appeal to the Federal Court after the written judgement became available.

The current Bar President, Kalidas, was quick to state that Tengku Adnan’s acquittal in his corruption trial was perturbing as the ruling was not unanimous and that the Attorney General (AG) himself should explain why he chose to discontinue the appeal. Kalidas’ statement would be well received if the Bar, over the years had behaved consistently in all previous decisions of the AG, in like matters, no matter who the AG or the accused were.

In this case Kalidas stated that the wide ranging discretionary powers held by the AG in his capacity as the Public Prosecutor (PP) must be weighed comprehensively against the rule of law and the administration of justice. Kalidas even went further to state that any suggestion that a public figure is able to use his/ her influence to buy himself/herself out of accountability must be avoided at all costs. This is an unfair call for inference, both to the Court of Appeal and to the AG as there is the implied suggestion that both or either the Court of Appeal or the AG may have inappropriately favoured the Appellant in the withdrawal of the Appeal.

This brings to mind the unpleasant flashback in in 2015, when Dato’ Sri Anwar Ibrahim (DSAI) was convicted by the highest court in the land, Datuk Ambiga Sreenevasan, former President of the Malaysian Bar had commented that Putrajaya/BN had made a mistake in imprisoning DSAI, (the words BN and Putrajaya were interchangeably used in the article), thus relegating the judiciary who made the decision to convict DSAI, to being BN aligned, a serious contempt by itself.

Christopher Leong, the then President of the Bar Council, had, in 2015, expressed the view of DSAI’s conviction as follows :-

“It is a strange world that we live in these glaring anomalies fuel a perception that Dato’ Seri Anwar Ibrahim has been persecuted and not prosecuted ”.

The above also suggested that the Federal Court sanctioned the persecution of DSAI in convicting DSAI, another serious contempt. Given the former Presidents’ sentiments, that the world becomes a strange place to live in when the non BN aligned politicians are convicted, does it follow that this same world resumes its normalcy if they are acquitted, thus gaining accolades from the Bar Council ? Is not the Malaysian Bar politically partisan and does it not abide to its own Charter prescribed in the Legal Profession Act 1976, and, as often boasted by them to be fiercely independent?

The Bar would do well to emulate itself to the Judiciary , to be even in the image or shadow of the Judiciary in aspects such as independence, humility and, most of all, to be a neutral body dedicated to the pursuits of justice and fairness. The Bar, just like the Judiciary, has no political or financial powers. To borrow the words of Kriegler J in The State v Russel Mamabolo, and to apply by way of analogy, the Bar has only moral authority. This moral authority is fragile and can be lost if the Bar is no longer independent and non-partisan. Its strength is very much dependent on its own independence.

“It has to depend on its own conduct to be its own vindication”.

By all accounts, we query the comment Kalidas made, firstly, about the fact that the non unanimous decision of the Court of Appeal was perturbing. By all means and measures, has the Bar gone down the route of questioning with circumspection every non unanimous decision in this country? Is the Bar President actually stepping into the hallowed realm of the judges’ minds, here, by unfairly connecting the Court of Appeal decision to acquit to the discontinuance of the Appeal by the AG , two different factors altogether.

Since when did the Bar favour quantity of the decision makers rather than quality ? In this case, the quality of the majority judgement?

Reading the majority judgement ( after reading the High Court judgement closely, and the dissenting judgement of the Court of Appeal ), there are clear and succinct reasons advanced by the majority judgement that :

a. the trial judge was “plainly wrong” in his analysis of the case in his written judgement pertaining to certain critical elements of the charge. In other words, having undertaken the close analysis of the High Court judgement, the Court of Appeal was satisfied that the High Court was “plainly wrong” in certain critical matters. The Court of Appeal re-examined the process of the evaluation of the evidence by the trial court as they are entitled to.

b. the majority judges at the Court of Appeal found conclusively that the Prosecution failed to prove that the RM 2 million was for Tengku Adnan himself , as required by one of the elements of the offence. They found overwhelming evidence that the RM 2 million was for UMNO as a political donation by the giver (the star witness of the Prosecution). Both the star witness and the Appellant confirmed this in evidence. What is mind boggling is that even the Prosecution said this in their opening statement. The investigating officer too confirmed that as early as the investigation itself the witnesses confirmed it was for political donation to UMNO for the imminent by- elections. Even the High Court judge made the finding that the star witness “had unequivocally testified” that it was political donation as such.

The Prosecution did not even re-examine that star witness on that issue. This was the key element of the charge. So, the Court of Appeal found that there were misdirections and non-directions by the trial court of the most important element and therefore the conviction became unsafe. What else is there to doubt ?

The Prosecution’s case, was “nasi sudah jadi bubur” ( to use a traditional Malay proverb).
So, the AG could and must have entertained the sound reasoning of the majority judgement and decided to withdraw the appeal. These sort of things happen randomly, but in Tengku Adnan’s case, issues were raised simply because he is in a political party that perhaps finds no favour with the majority of the Bar.

In the Riza Aziz (DS Najib’s stepson) case, the Malaysian Bar’s former Presidents attacked the erstwhile President Salim Bashir for making a clinical legal statement about Riza’s settlement with the Prosecution. They wanted Riza to be annihilated. (See my response to these former Bar Presidents in a piece called “ The making of dumb and dumber”, 30.5.2020).

But compare the harsh comments by the Bar on accused persons associated with UMNO to those non-BN aligned accused :-

(i) Lim Guan Eng’s acquittal (DAP)

Sometime ago, in 2018, the Bar Council had issued a statement through its then President George Varughese that it is not shocking for the DPP to withdraw the charges against Lim Guan Eng, at the very advanced stage of the Prosecution, as protested by the MACC themselves. Most unprecedented!

And it was during the tenure of Tommy Thomas as the then AG. We know how close Tommy was to Lim Guan Eng, and the former was the latter’s lawyer.

On this ground Varughese said that it was the absolute prerogative of the AG/PP to drop charges at any stage of a trial, before the delivery of a judgement. See the NST dated 4 September 2018 online. The Bar was clearly partisan. The Bar did not even attempt to provide an intelligent statement.

(ii) Rafizi Ramli (PKR)

In November, 2019, after Rafizi Ramli’s (PKR vice president) and former Public Bank clerk Johari Mohamad’s acquittal of disclosing the banking details belonging to the National Feedlot Corporation (NFC) and breaching the Banking and Financial Institutions Act (Bafia), the Prosecution appealed immediately against this as it was the AGC’s view that the acquittals were clearly against the clear evidence.

Yet, the then Attorney General Tommy Thomas came up with a statement that the act of the Appeal being lodged itself was made without his knowledge and he had demanded his officers to withdraw that Appeal.

This was a tense situation, with the glaring implication that the internal workings of the AGC was at odds with Tommy and that resulted in a public announcement with Tommy saying that the Appeal would be withdrawn and disciplinary action would be taken against officers who moved for the appeal . See the Malay Mail article dated 6.12.2019. The Bar Council was conspicuously silent on this, perhaps due to the embarrassment that a “former member” of theirs (AG) had behaved unreasonably.

(iii) Khalid Samad (PAS) N Surendran (PKR) R Sivarasa (PKR)

In the same year, 2019 , the AG withdrew its appeal against Federal Territories Minister Khalid Samad in September 2019 against a sedition charge. Tommy Thomas was helming the AGC back then. I do not recall any public outcry or comment by the Bar Council on this. See The Edge , September 30, 2019

The sedition charges against lawyers and MP’s N. Surendran , R. Sivarasa were over remarks related to the previous Sodomy II prosecution of Datuk Seri Anwar Ibrahim were also dropped in 2018 with no reprisals from the Bar Council. However, Datuk Seri Azalina Othman had made a comment most elegantly, that the “Trend of charges against PH leaders being dropped was worrying”.

It is obvious from the cases that the Bar is only critical of cases involving UMNO accused but, either demonstrably supports the non BN aligned accused or chooses to be silent. We are at the throes of yet another Bar Council Election. I call upon all members of the Bar who love their profession to select representatives worthy of the posts, independent and non-partisan and above all , honest and with the integrity to create a legacy we can all cherish, as proclaimed by the Bard himself ; “No legacy is so rich as honesty”

Tan Sri (Dr.) Muhammad Shafee Abdullah
Kuala Lumpur
November, 2021
(the writer is a senior legal practitioner in Kuala Lumpur)