PUTRAJAYA – The Malaysian Bar today lost its bid to review the Federal Court’s decision that it breached its statutory duty when it decided to allow discussions on lawyer Tan Sri Muhammad Shafee Abdullah’s conduct when the latter was an ad hoc prosecutor in Datuk Seri Anwar Ibrahim’s Sodomy II case.
A three-member panel of the Federal Court led by Justice Datuk Zabariah Mohd Yusof dismissed the Malaysian Bar’s review application with no order as to costs after ruling that they were not satisfied that it was a fit and proper case that falls within the limited grounds and exceptional circumstances which the power of review may be exercised.
The other two judges on the panel were Justices Datuk Seri Hasnah Mohammed Hashim and Datuk Mohamad Zabidin Mohd Diah.
In the court’s decision, Justice Zabariah said arguments presented before the court appeared to be an appeal against the finding of the earlier Federal Court panel, which the present panel was not empowered to do.
“It was not for this Federal Court panel to consider whether the earlier (Federal Court) panel had or had not made the correct decision on the facts and the law,” she said, adding that those were matters of opinion and interpretation of the law.
Justice Zabariah said there was no inconsistency in the decision of the earlier Federal Court panel, adding that the earlier panel, in answering the legal question, had resolved the main contention and issue in the case, namely the breach of statutory duty of the Malaysian Bar, and that other issues were not significant to the appeal.
In March 2015, Shafee sued the Malaysian Bar, former attorney-general Tan Sri Tommy Thomas and former Court of Appeal Judge Tan Sri VC George. Both Thomas and George were lawyers at that time.
He claimed that Thomas had published and submitted a motion on February 28, 2015 for discussion by the Malaysian Bar annual general meeting (AGM) on March 14 the same year, and the motion was seconded by George.
The motion related to Shafee’s conduct as deputy public prosecutor in Anwar’s sodomy appeal in the Federal Court, claiming that the former (Shafee) had violated the legal profession’s rules which prohibited lawyers from publicising themselves.
The motion also alleged that Shafee had participated in nationwide roadshows with the purpose of insulting a convicted prisoner and for bringing attention to his role in Anwar’s conviction.
On May 26, 2016, the high court dismissed Shafee’s suit, and he also lost his appeal in the Court of Appeal on October 11, 2018, prompting him to bring the matter to the Federal Court.
On October 20 last year, the Federal Court allowed Shafee’s appeal and held that he was entitled to get damages from the Malaysian Bar and ordered the case to be reverted to the high court for assessment of damages.
In the decision by the earlier Federal Court panel, Justice Abdul Rahman Sebli 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 AGM.
“This is not only illegal but grossly unfair and highly prejudicial to the appellant (Shafee) as it amounts to a prejudgment of his guilt ahead of the disciplinary proceedings before the disciplinary board,” he said.
On February 10, 2015, the Federal Court affirmed Anwar’s conviction for 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 king on May 16, 2018.
At today’s proceedings, which were conducted online, lawyer Lambert Rasa-Ratnam represented the Malaysian Bar while Datuk S. Ambiga acted for Thomas and Porres Royan for George. Shafee represented himself. – Bernama, September 19, 2022
