PUTRAJAYA: The Federal Court today ruled that the Malaysian Bar had breached its statutory duty when it decided to allow discussion of Tan Sri Muhammad Shafee Abdullah's conduct when the latter was an ad-hoc prosecutor in Datuk Seri Anwar Ibrahim's Sodomy II case.
The three-member panel chaired by Tan Sri Rohana Yusuf, in its unanimous judgement, said the senior lawyer was entitled to get damages from the Malaysian Bar for allowing and publishing a motion of condemnation against him before being referred to the Disciplinary Board.
Judge Datuk Abdul Rahman Sebli who read the decision said the Malaysian Bar had committed a serious breach of the law when it published the motion on its website and tabling it for resolution at the Annual General Meeting in 2015.
"The power to discipline advocates and solicitors is vested in the Disciplinary Board and this power is to be exercised by the Board in accordance with the relevant rules.
"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 to be tabled and decided from the floor of the House instead of referring it first to the Disciplinary Board for their action.
"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 said.
Former Attorney-General Tan Sri Tommy Thomas who was a lawyer at the time made the motion, seconded by former Court of Appeal Judge Tan Sri VC George in Feb 2015.
Thomas filed the motion following Shafee's infamous roadshow to discuss Anwar's sodomy II conviction.
Abdul Rahman added the Malaysian Bar has no power to deal with matters concerning the conduct of advocates and solicitors.
"The body that the law entrusts to deal with it is the Disciplinary Board and not the Malaysian Bar.
"With Section 99(1) of the Legal Profession Act (LPA) in place, the Malaysian Bar has no business to deal with any complaint of misconduct by an advocate and solicitor, either by way of motion under Section 64(6) of the same Act.
"The Malaysian Bar's breach of Section 99(1) of LPA entitles the appellant to a remedy.
"We are unable to accept the Malaysian Bar's contention that no damage has been established by the appellant for such breach of the law," he said.
He said the court also could not accept the argument that the appellant's action has become academic on the grounds that the motion was not discussed at the AGM.
"The case is reverted to the High Court for assessment of damages against the Malaysian Bar by the High Court judge.
"We are not making the same order against Thomas (first respondent) and George (second respondent) as unlike the Malaysian Bar, they are not statutory bodies to be bound by section 99(1) of the LPA," he said.