Apex court upholds ruling Bar breached statutory duty to Shafee

The Malaysian Bar failed in its bid for the apex court to quash its earlier ruling that the former breached its statutory duty to lawyer Muhammad Shafee Abdullah.

A three-person Federal Court chaired by Zabariah Mohd Yusof unanimously dismissed the Bar’s review application this afternoon with no order as to costs. The other bench members were Hasnah Hashim and Mohamad Zabidin Mohd Diah.

The Bar’s review today sought to overturn a separate apex court bench ruling back on Oct 21 last year, which allowed Shafee’s appeal for the legal professional body to be held as having committed a breach of statutory duty owed to him.

The lawyer’s appeal was over his civil action linked to the Bar’s motion in 2015 to discuss his conduct over his then involvement as ad hoc prosecutor in opposition leader Anwar Ibrahim’s Sodomy II appeal.

The Kuala Lumpur High Court dismissed Shafee’s (above) legal action on May 26, 2016, with the Court of Appeal affirming the lower court’s verdict on Oct 11, 2018.

Initially covering the issue of defamation, conspiracy to defame, and breach of statutory duty when the matter was before the two lower courts, the apex court however only granted Shafee leave to appeal over the issue of statutory breach.

The previous apex court bench that allowed Shafee’s appeal was chaired by Court of Appeal president Rohana Yusuf (who under the law has jurisdictional power to sit in Federal Court proceedings), and Federal Court judges Vernon Ong Lam Kiat and Abdul Rahman Sebli.

In today’s unanimous verdict, Zabariah ruled that the matter is not a fit and proper case for the apex court to exercise its power of review.

She said it is because the way the review was presented amounted to an appeal against the previous panel’s decision.

She pointed out the previous panel’s decision was limited to the issue of whether the Bar has breached its statutory duty to Shafee.

She said the previous bench was careful not to encroach on the parameters of the appeal.

Zabariah said, in a review application, the apex court need not examine the previous bench’s decision with a microscope on every point.

“It is not up to this court to decide if the previous panel made a correct decision as this is a matter of opinion and interpretation of the law,” she said.

Counsel Lambert Rasa-Ratnam, Ambiga Sreenevasan, and Porres P Royan represented the Bar, former attorney-general Tommy Thomas, and former Court of Appeal judge VC George.

The Bar, Thomas, and George were targeted by Shafee’s civil action.

Contention on lawyers publicising themselves

In 2015, Shafee filed the lawsuit to stop Thomas and George from tabling a motion against him at the Malaysian Bar’s annual general meeting (AGM) on March 14 that year.

He obtained an ex-parte injunction from the Kuala Lumpur High Court a day before the AGM to stop the motion from being tabled.

Through the civil suit, the senior lawyer claimed among others that the defendants defamed him by filing the motion to the AGM, where they wanted to move him to face disciplinary action.

The motion pertained to Shafee’s conduct as the deputy public prosecutor in Anwar’s sodomy appeal in the Federal Court, which alleged that Shafee violated the legal profession’s rules which prohibited lawyers from publicising themselves.

The motion also claimed Shafee participated in nationwide roadshows to insult a convicted prisoner and for bringing attention to his role in Anwar’s conviction.

On Feb 10, 2015, the Federal Court affirmed Anwar’s conviction of sodomising his former aide Mohd Saiful Bukhari Azlan and sentenced him to five years in jail. Anwar, however, was given a full pardon by the Agong on May 16, 2018.

Shafee still has a pending proceeding before the Advocate and Solicitor Disciplinary Board regarding the issue of his conduct.

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