PUTRAJAYA (Oct 20): Senior lawyer Tan Sri Muhammad Shafee Abdullah is entitled to get damages from the Malaysian Bar for breach of its statutory duty in allowing and publishing a motion of condemnation against him in its annual general meeting (AGM) in 2015 without first lodging the complaint with the disciplinary board.
The condemnation sought by the person who made the motion, Tommy Thomas (now Tan Sri), and seconded by former Court of Appeal judge Tan Sri VC George followed Shafee having the infamous roadshow to explain the conviction of opposition leader Datuk Seri Anwar Ibrahim for sodomy II.
The Federal Court's three-member panel chaired by Tan Sri Rohana Yusuf set aside the decision of the High Court and the Court of Appeal in ruling earlier that no damages should be given to Shafee.
Following this, the apex court directed that assessment of damages be decided by the High Court.
Federal Court Judge Datuk Abdul Rahman Sebli who wrote the unanimous decision said the Malaysian Bar should have before tabling and publishing the motion against Shafee — for all 15,000 members to view — make a complaint against the senior lawyer for misconduct as stipulated under Section 99 (1) of the Legal Profession Act 1976 (LPA) to the disciplinary board.
The fact that the motion was accepted — published in February 2015 — and made known to its members for it to be debated in the AGM despite Shafee obtaining an injunction to stop it affected his reputation before the matter was brought to the disciplinary board.
Thus, Justice Abdul Rahman ruled that Shafee is entitled to claim for defamation.
“It is not for this court to find the appellant guilty for misconduct in the ongoing disciplinary proceedings. But we find the Malaysian Bar breached its statutory duty in acting on the motion by publishing it, and [putting it on the agenda] for the AGM, before lodging a complaint with the disciplinary board.
“This may have prejudiced the appellant's (Shafee's) case in the ongoing disciplinary board proceedings. Hence, the appeal [by Shafee] is allowed, with no order as to costs. The assessment of damages will be done by a High Court judge,” Justice Abdul Rahman said.
The third judge in the unanimous decision was Datuk Vernon Ong Lam Kiat.
Role of Malaysian Bar has changed since 1992
The apex court, however, did not make any decision on Tommy who submitted the motion and George who supported the motion as Justice Abdul Rahman said they were not part of the statutory body.
Justice Abdul Rahman also noted that the role of the Malaysian Bar had changed since the formulation of the LPA, where the task to discipline its members was given to the disciplinary board since 1992 and not the Malaysian Bar.
Section 99 (1) of the LPA states: Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall in the first place be made or referred to the disciplinary board, which shall deal with such complaint in accordance with such rules as may from time to time be made under this Part.
Justice Abdul Rahman also said the Malaysian Bar is not legally bound to act on motions with seditious tendency or considered sub judice.
The Federal Court judge pointed to the 67th Malaysian Bar AGM minutes earlier, that when Datuk Ambiga Sreenevasan was leading the Malaysian Bar, she rejected a motion against a member of the Bar who had disciplinary complaints on the grounds that the complaints had not been made to the disciplinary board.
She, Justice Abdul Rahman said, noticed that it would set a terrible precedent if the Bar were to be brought (into the disciplinary proceedings) by way of a motion and having it published.
“It was the wrong procedure in the particular instance [for Ambiga to act on that motion then]. This is due to the Malaysian Bar AGM having no power to convict someone of any disciplinary offence. The AGM is not the right forum to pass judgement.”
“It should have been left with the disciplinary board and for the disciplinary process to continue. This is to ensure that the disciplinary process is not tainted before the complaint,” the top judge added.
However, the apex court noted that Ambiga, who was representing Tommy in this case, had argued that Shafee brought it upon himself for having the roadshow and disclosing in-camera evidence.
Justice Abdul Rahman said it was difficult for the bench to accept Ambiga's explanation to condemn the appellant (Shafee) as the Bar was seen acting in ultra vires of Section 99 (1).
“The provision is never meant to be abused in this case,” the apex judge reasoned.
He also questioned why George or Tommy did not lodge a complaint with the disciplinary board themselves as he described that they wanted Shafee to be condemned in the peer meeting (AGM) before the disciplinary board.
This, Justice Abdul Rahman said, was the wrong procedure in lodging the complaint as it was in breach of the law in tabling it for the AGM as it may be prejudicial and prejudgement ahead of the disciplinary proceedings before the disciplinary board.
Apex court heard Shafee's appeal last August
Justice Rohana, along with Justices Ong and Justice Abdul Rahman, heard Shafee's appeal last August but deferred in delivering their decision.
Shafee, who appeared for himself, argued that the Malaysian Bar's action in publishing the motion was a breach of natural justice.
The Court of Appeal on Oct 11, 2018 dismissed Shafee's appeal against the Malaysian Bar, Tommy and George as it ruled his appeal as untenable. The senior lawyer earlier on May 26, 2016 failed in his defamation suit against them in the High Court as Justice Datuk Hanipah Farikullah (now a Court of Appeal judge) found it improper for him to discuss in-camera evidence.
The High Court accepted and ruled that it accepted the Bar's defence of justification, qualified privilege and fair comment.
Senior lawyer Lambert Rasa-Ratnam appeared for the Malaysian Bar, while Porres Royan appeared for George.