PUTRAJAYA (Bernama): The Federal Court has allowed senior lawyer Tan Sri Muhammad Shafee Abdullah's appeal over his defamation suit against the Malaysian Bar and two others relating to his conduct as the Deputy Public Prosecutor in Datuk Seri Anwar Ibrahim's Sodomy II case.
The two other respondents were former attorney general Tan Sri Tommy Thomas and former Court of Appeal judge Tan Sri VC George.
A three-member bench comprising Court of Appeal president Tan Sri Rohana Yusuf, Federal Court judges Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli also set aside the Court of Appeal's decision and directed the case to be reverted to the High Court for assessment of damages against the Malaysian Bar as the third respondent.
Justice Abdul Rahman, when reading the unanimous decision on Wednesday (Oct 20), said the court did not make the same order against Thomas and George, as the first and second respondent respectively, because they were not statutory bodies to be bound by section 99(1) of the Legal Profession Act 1976.
He said the appeal was only concerned with the question whether the respondents were liable in the tort of breach of statutory duty and not for the other causes of action, namely defamation and conspiracy to defame.
"Nor is this appeal concerned with the question whether the appellant (Muhammad Shafee) has or has not been guilty of misconduct. That is a matter for the Disciplinary Board to determine in the ongoing disciplinary proceedings against the appellant.
"Section 99(1) of the LPA requires that any complaint concerning the conduct of an advocate and solicitor must be in writing and must first be made or referred to the Disciplinary Board.
"In breach of this requirement of the law, Thomas and George moved the Malaysian Bar under section 64(6) of the LPA for a resolution to condemn the appellant 'in the strongest terms' for breach of discipline," he said in the decision which was delivered virtually via Zoom.
Justice Abdul Rahman said the Malaysian Bar committed a far more serious breach of the law when it published the motion on its website and tabled it for resolution at the Annual General Meeting (AGM).
"This is not only illegal but grossly unfair and highly prejudicial to the appellant as it amounts to a prejudgment of his guilt ahead of the disciplinary proceedings before the Disciplinary Board," he added.
Justice Abdul Rahman said to allow a member of the Malaysian Bar to lodge a complaint of misconduct by way of motion under section 64(6) of the LPA would be to render section 99(1) completely devoid of meaning, for then any complaint concerning the conduct of an advocate and solicitor could just be made to the Malaysian Bar, and to be summarily decided from the floor of the House without referring the complaint to the Disciplinary Board.
"This is not something that this court will countenance as it is a clear contravention of the law by the Malaysian Bar as guardian of the LPA. In the context of the present case, the body that the law entrusts to deal with all matters concerning the conduct of advocates and solicitors is the Disciplinary Board and not the Malaysian Bar.
"The Malaysian Bar has no business as a matter of fact and law to deal with any complaint of misconduct by an advocate and solicitor, either by way of motion under section 64(6) or by any other way," he added.
Justice Abdul Rahman further said the power to discipline advocates and solicitors was vested in the Disciplinary Board and this power was to be exercised by the Board in accordance with the relevant rules.
"The Malaysian Bar is not bound by these rules and this works to the detriment of the advocate and solicitor who has the misfortune of being hauled up before the Bar for alleged indiscipline where his peers will be free to condemn him 'in the strongest terms' from the floor of the House.
"The Malaysian Bar knew exactly what the correct procedure was in dealing with complaints of misconduct by its members. It therefore does not speak well of its action in the present case in allowing the motion submitted by Thomas and George to be tabled and decided from the floor of the House, instead of referring it first to the Disciplinary Board for the Board's action," he added.
At today's proceeding, lawyers Datuk Ambiga Sreenevasan, Porres Royan and Lambert Rasa-Ratnam, appeared for Thomas, George and the Bar, respectively, while Muhammad Shafee represented himself.
On Aug 19, 2020, the Federal Court granted leave to Muhammad Shafee to appeal against the Court of Appeal's decision.
On May 26, 2016, the Kuala Lumpur High Court dismissed a defamation suit filed by Muhammad Shafee against the respondents. The Court of Appeal on Oct 11, 2018, rejected Muhammad Shafee's appeal and upheld the High Court's decision.
Muhammad Shafee filed the suit in March 2015, claiming that on Feb 28, 2015, Thomas had published and submitted a motion for discussion by the annual general meeting (AGM) of the Malaysian Bar on March 14, 2015. The motion was seconded by George.
The motion pertains to Muhammad Shafee's conduct as the DPP in Anwar's sodomy appeal in the Federal Court, claiming that he (Muhammad Shafee) had violated the legal profession's rules which prohibited lawyers from publicising themselves.
The motion also alleged Muhammad Shafee of participating in nationwide roadshows with the purpose of insulting 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 full pardon by the King on May 16, 2018.
In his statement of claim, Muhammad Shafee sought, among other things, a declaration that the motion was mala fide because the purpose of the proposal was simply to embarrass him and that the AGM was not a proper forum to hear the motion. – Bernama