KUALA LUMPUR, May 26 — The High Court ruled today against Tan Sri Muhammad Shafee Abdullah in his defamation lawsuit against the Malaysian Bar, its former president and two lawyers, saying the duo’s move to censure the Umno lawyer for his conduct post-Sodomy II was justified.
Although High Court judge Datuk Hanipah Farikullah found the words in the lawyers’ motion against Shafee at the Bar’s annual general meeting (AGM) last year defamatory, she said the duo had successfully proved there was substantial truth in the motion.
"Hence to my mind, there was some truth, substantive truth in the motion filed by the first defendant and second defendant," she said when ruling that senior lawyers Tommy Thomas and Tan Sri VC George had succeeded in their defence of justification.
Hanipah highlighted that Shafee had clearly spoken as a lawyer that was still holding the Attorney-General's Chambers’ appointment to represent the prosecution in Anwar's case at a "political forum" organised by an Umno-linked organisation.
She noted that Shafee had claimed he was trying to debunk Anwar's political conspiracy theory and defend the Federal Court's decision to convict the latter of sodomy, but pointed out that the apex court had not accepted that theory in its judgment.
She also said Shafee had admitted that he had during the Kelana Jaya forum attributed comments to Anwar that were not actual statements by Anwar, besides noting that Shafee had criticised Anwar's legal team and the politician’s exercise of his right to give a statement from the dock instead of being cross-examined.
Hanipah said Shafee should not have publicly shared “in camera evidence” or evidence that the Sodomy II trial judge had said must not be disclosed outside the courts.
"But for an advocate and solicitor and deputy public prosecutor holding a fiat, to my mind, the camera evidence should not have been divulged to the public. It was not disputed that it was a public forum and online streamed, and also there was members of the public,” the judge said.
Hanipah also found that the two lawyers had successfully proven their alternative defence of fair comment as Shafee's conduct was of public interest.
As for the defence of qualified privilege raised by all four sued by Shafee, Hanipah said they had shown they had the legal and moral duty to both present and receive the motion while Shafee had failed to show they had malice in doing so.
"Based on the facts and circumstances, the first defendant and the second defendant being senior members of the Bar had interest to present the motion to the Malaysian Bar and Malaysian Bar had interest to receive as it concerns misconduct by one of the members," he said.
Hanipah found that Shafee had failed to prove his claim of tort of conspiracy to defame him as he had not shown there was an agreement to do so.
She also noted that the discussion of Shafee's conduct at the Bar AGM will not deprive him of his rights to be heard, also noting that the AGM does not amount to disciplinary proceedings.
"With regards to rights to be heard, if plaintiff will not be deprived of his right to be heard, notice was given to him.
"He has right to attend AGM and due process will be given to him. He has the right to speak and defend himself at AGM," she said.
Hanipah also decided that former Malaysian Bar president Christopher Leong cannot be sued in this suit in both his personal capacity and his official capacity as an officer of the Bar Council, as the correct party to sue is the Bar Council.
Tommy's lead counsel Datuk Ambiga Sreenevasan told the court that all parties had previously agreed not to seek for costs from this stage at the High Court and if it goes up all the way to the Federal Court.
Hanipah, who read out her broad grounds of judgment for about an hour, noted the position taken by all parties not to ask for legal costs to be paid.
In his lawsuit, Shafee had named as respondents Tommy, former Court of Appeal judge George who has since returned to practice as a lawyer, the Malaysian Bar, and Leong.
Tommy and George had respectively proposed and seconded a motion for the Bar AGM last year to censure Shafee’s conduct following Anwar’s sodomy conviction.
Among other things, the motion claimed that Shafee had violated the legal profession’s rules which prohibit lawyers from publicising themselves, while also saying that his conduct was “morally reprehensible and legally unacceptable.”
The motion accused Shafee of holding press conferences condemning Anwar, who could not respond as a convicted prisoner, drawing attention to his prowess allegedly as a top-rate prosecutor, demeaning Anwar and his legal team, and the way the defence was conducted.
Shafee was also accused of giving interviews to the media on his performance as prosecutor as well as organising and participating in nationwide roadshows with a political party, with the purpose of insulting a convicted prisoner and for bringing attention to his role in the conviction.
The motion was ultimately not debated at the Bar AGM as Shafee succeeded in getting a court order to block its discussion just the day before the meeting.