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2018 MarsdenLR 3162
COURT OF APPEAL PUTRAJAYA
TAN SRI DR MUHAMMAD SHAFEE ABDULLAH – Appellant
Versus
TOMMY THOMAS & ORS – Respondent
[Civil Appeal No: W-02(NCVC)(W)-1066-06-2016]
Professional conduct of advocates requires adherence to ethical standards, and violations justify disciplinary action.
Headnote:This case revolves around a motion considered by the Malaysian Bar aimed at condemning the conduct of a barrister, Shafee Abdullah, following his actions post the Federal Court decision convicting Anwar Ibrahim. The Malaysian Bar sought to address Shafee’s alleged breaches of professional standards and statutory duties under various legal regulations and ethics protections. The Court ultimately affirmed the findings from the lower Court, including the justifications for the motion and the defences of qualified privilege and fair comment upheld by the respondents.
| Table of Content |
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| 1. motion to condemn member's conduct. (Para 1 , 2 , 4 , 5 , 6) |
| 2. the conduct of legal professionals must uphold the dignity of the profession. (Para 3) |
| 3. claims of breaches of conduct and ethics. (Para 7 , 8 , 9 , 10 , 11) |
| 4. defamation claims must meet standards of justification. (Para 12 , 13 , 14) |
| 5. legal findings regarding statutory duties. (Para 15 , 16 , 18 , 19 , 20) |
| 6. the obligation of legal professionals to maintain integrity involves their public actions. (Para 17) |
| 7. judicial decisions on conduct are guided by defined legal precedents. (Para 21 , 22) |
| 8. justification and qualified privilege defenses. (Para 27 , 36) |
[1] The terms of the motion which was sought to be tabled at the Annual General Meeting of the Malaysian Bar dated 14 March 2015 (AGM) are these:
(a) WHEREAS barristers are members of a noble and honourable profession, and are expected to behave honourably at all times;
(b) WHEREAS barristers are prohibited from conducting themselves in any manner which would bring the legal profession into disrepute or which is likely to diminish public confidence in the legal profession;
(c) WHEREAS barristers must not permit their absolute independence and integrity to be compromised nor are they permitted to compromise their professional standards in order to please clients or for any other reason;
(d) WHEREAS in total violation of these long established and cherished principles and values, Shafee Abdullah has, from the time the Federal Court delivered its decision to convict Anwar Ibrahim on 10 February 2015, behaved in a repugnant and obnoxious manner which has brought the legal profession into disrepute;
(e) WHEREAS since 10 February 2015, Shafee Abdullah, as leading prosecuting counsel, has wilfully and with impunity:
(i) held press conferences condemning Anwar Ibrahim who cannot respond as a convicted prisoner serving time;
(ii) drawn attention to his prowess, allegedly as a top rate prosecutor;
(iii) demeaned the accused Anwar Ibrahim and his legal team and the defences that were relied upon by them in Court proceedings;
(iv) given interviews to the traditional and online media concerning his performance as prosecutor; and
(v) organised and participated in nationwide road shows, with a political party, for the purposes of insulting a convicted prisoner and bringing attention to his role in the conviction.
(f) WHEREAS such extreme and outrageous conduct, unprecedented in the annals of the common law, cannot be allowed to continue and must receive strong condemnation from his peers;
(g) WHEREAS a former Attorney General, Abu Talib, was quoted online on 16 and 17 February as stating that Shafee was advertising and promoting himself in the media, and called on Attorney General Gani Patail to revoke Shafee Abdullah's appointment;
(h) WHEREAS the totality of Shafee Abdullah's conduct since 10 February 2015 has been morally reprehensible and legally unacceptable, crossing all lines of decency;
(i) WHEREAS Shafee Abdullah, although supported by forces of the state, is not above the law, as Lord Denning reminded that Attorney General of the United Kingdom in 1977:
"To every subject in this land, no matter how powerful, I would use Thomas Fuller's words over 300 years ago: 'Be you ever so high, the law is above you";
(j) WHEREAS Shafee Abdullah's conduct is in clear breach of rr 5(a), 31, 32, 33 and 49 of the Legal Profession (Practice and Etiquette) Rules 1978;
(k) WHEREAS r 33 of the 1978 Etiquette Rules which reads:
"An advocate and solicitor shall treat adverse witnesses and parties with fairness and due consideration and shall not minister to the malevolence or prejudices of a client 'in the conduct of a case";
has particularly been breached by Shafee Abdullah; and
(l) WHEREAS Shafee Abdullah has violated the Legal Profession (Publicity) Rules 2001, r 5(1)(a)(ii) of which prohibits lawyers from publicising about themselves or their practice in any manner "that may reasonably be regarded as being... in ba
