KUALA LUMPUR (Nov 22): Lawyer Tan Sri Muhammad Shafee Abdullah has questioned the Malaysian Bar’s neutrality in response to its president AG Kalidas’ comments on the decision by the Attorney-General's Chambers (AGC) to withdraw its appeal in former Cabinet minister Datuk Seri Tengku Adnan Tengku Mansor’s corruption case.
In a statement, Shafee said that the Bar is endowed with perpetual succession in that while 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 remained consistent and took 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,” said the lawyer.
Tengku Adnan was acquitted in the Court of Appeal in July after a verdict of conviction in the High Court, with the prosecution subsequently filing an appeal to the Federal Court to compel the written judgement to be provided.
However, the prosecution has since withdrawn this appeal after the written judgement became available.
Shafee says 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 chose to discontinue the appeal.
Shafee said the statement would have been well received if the Bar had over the years behaved consistently in all previous decisions — regardless of who the AG or the accused were.
He said Kalidas had stated that the wide-ranging discretionary powers held by the AG in his capacity as the public prosecutor 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 was an unfair call for inference, both to the Court of Appeal and to the AG, as there was 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,” said Shafee.
The lawyer recalled Datuk Seri Anwar Ibrahim’s conviction in 2015, when former Malaysian Bar president Datuk Ambiga Sreenevasan commented that Putrajaya/Barisan Nasional (BN) had made a mistake in imprisoning Anwar — which relegated the judiciary which made the decision to being BN-aligned — which Shafee said was a “serious contempt”.
He cited Christopher Leong, who was the Bar Council president in 2015, who made a comment that it was “a strange world that we live in” as Anwar was “persecuted and not prosecuted”.
“Given the former presidents’ sentiments that the world becomes a strange place to live in when 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 the Malaysian Bar politically partisan and does it not abide by its own Charter prescribed in the Legal Profession Act 1976, as often boasted by them, to be fiercely independent?” asked the lawyer.
He said the Bar would do well to emulate the judiciary in aspects such as independence, humility, and to be a neutral body dedicated to the pursuits of justice and fairness.
This moral authority, he said, is fragile and can be lost if it is no longer independent and non-partisan.
Referring to the majority judgement, after reading the High Court judgement and the dissenting judgement of the Court of Appeal, Shafee said the trial judge was “plainly wrong” in his analysis of the case pertaining to certain critical elements of the charge — that the majority judges of the Court of Appeal found conclusively that the prosecution failed to prove that the RM2 million was for Tengku Adnan himself.
Meanwhile, in Riza Shahriz Abdul Aziz’s case, Shafee said that former Malaysian Bar presidents had attacked then president Salim Bashir for making a clinical legal statement about Riza’s settlement with the prosecution, adding that they “wanted Riza to be annihilated”.
On the other hand, the lawyer said the Bar Council was not as harsh against the acquittal of non-BN-aligned individuals, such as former finance minister Lim Guan Eng’s acquittal in 2018, when then Bar Council president George Varughese said it was not shocking for the deputy public prosecutor to withdraw the charges at an advanced stage of the prosecution.
He also pointed to the acquittal of Rafizi Ramli and former Public Bank clerk Johari Mohamad of disclosing the banking details belonging to the National Feedlot Corporation (NFC) and breaching the Banking and Financial Institutions Act.
The prosecution appealed immediately against this as it was the AGC’s view that the acquittals were clearly against the clear evidence, Shafee said.
“Yet, then AG 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 the appeal,” said Shafee.
During the same year, he said, the AG withdrew the appeal against Federal Territories Minister Khalid Samad in September 2019 against a sedition charge.
Shafee said Tommy Thomas helmed the AGC back then, and that he does not recall any public outcry or comment by the Bar Council on this.
"It is obvious from the cases that the Bar is only critical of cases involving Umno-aligned accused but either demonstrably supports non-BN-aligned accused or chooses to be silent. We are in 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, [who are] 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’,” Shafee said.