A former magistrate who was convicted of accepting corrupt money 15 years ago can now practise as a lawyer after he won his bid in the Federal Court today to be restored to the roll of advocates and solicitors.

A three-member panel lead by Court of Appeal President Alauddin Mohamed Sherif unanimously held that despite the fact that the offence committed by B Thavananthan was a serious one since it was committed while holding judicial office as a magistrate, Thavanathan had been duly punished as he had served his three-year jail term.

Justice Zulkefli Ahmad Makinuddin, in his 15-page judgment read out in open court by deputy registrar M Nithiyananlham, said a conviction should not be regarded in every case as being permanently unfit to be readmitted into the roll of Advocates and Solicitors and that disbarment should not necessarily be intended to be permanent.

"The fact that Thavananthan, 45, had filed his application to be restored to the roll, which was supported by various letters of recommendation and testimonials from senior members of the bar and the judiciary, was more than sufficient to show that he was now a fit and proper person," Zulkefli said.

He said that in rejecting Thavanathan's application to be restored as an advocate and solicitor, the High Court had failed to consider that he (Thavanathan) had served his jail term, and that he was thrice issued with an annual practising certificate.

He has been punished enough

Zulkefli said the Bar Council would not have issued the certificate if it was of the view that Thavanathan was not a fit and proper person to be readmitted to the profession.

"The appellant (Thavanathan) has lost the 'prime' of his life and career since he was convicted when he was 28 years old," he said.

The Disciplinary Committee had recommended to the Disciplinary Board that Thavanathan be suspended from practice for six months. However, the board enhanced the sentence and ordered that he be struck off from the roll after disagreeing with the recommendation.

Thavanathan was charged on Nov 28 1992 at the Kuala Lumpur Sessions Court with two charges of soliciting and accepting corrupt money but was acquitted and discharged of both counts without his defence being called.

The High Court allowed the prosecution's appeal and remitted the case to the Sessions Court for him to enter his defence on the second charge but he was again acquitted and discharged at the end of the defence case.

The High Court, on April 25 1994, allowed the prosecution's appeal, convicted and sentenced him to three years and RM5,000 fine in default 12 months jail.

Thavanathan served his time in jail after he was unsuccessful in his appeal to the Supreme Court to set aside the jail term but the fine was set aside.

After his release from prison, the Bar Council granted Thavanathan's application to practise law and gave him the annual practising certificate for 1999, but without prejudice to its right to lodge a complaint with the disciplinary board.

The Bar Council lodged a complaint against him with the Disciplinary Board on June 29, 1999.

Thavanathan could not be faulted

Zulkefli disagreed with the Bar Council's contention that Thavanathan's pursuit in appealing against the disciplinary board's decision amounted to a non-acceptance of the consequences of his conviction and disbarment, reflecting his lack of penitence or repentance and lack of acceptance of the grave wrong he had committed.

He said Thavanathan could not be faulted for not accepting the decision of the disciplinary board by lodging his appeal to the High Court as he believed that the punishment meted out was excessive compared with other similar cases.

He said what Thavanathan had done was merely to pursue his rights and legal remedies accorded to him and it should not be construed as a challenge to the court's integrity and the system in place under the administration of justice.

"This right is enshrined in Article 5 of the Federal Constitution and Section 107 of the Legal Profession Act. It is highly unreasonable and inconsistent to provide him with this right and remedy on the one hand, and rob it by blaming him for exercising the same right and remedy on the other hand," he said.

- Bernama