Bar Council applies for leave to appeal decision on Cecil

The Bar Council has filed an application for leave with the Kuala Lumpur High Court to appeal the Advocates and Solicitors Disciplinary Board's decision to clear senior lawyer Cecil Abraham of alleged misconduct over the allegation of drafting the second statutory declaration for P Balasubramaniam.

A file search revealed that the Bar Council, in its application filed last month, wants the High Court to set aside the March 11 decision by the board and find him liable for misconduct within the meaning of Section 94(3) of the Legal Profession Act 1976.

Yesterday was the first case management for the matter before a deputy registrar, where it fixed June 8 for further case management.

The Bar through its secretary Karen Cheah, provided 12 grounds in the application where the Bar believed the disciplinary board and its disciplinary committee had erred:

• the committee and board failed to consider that in all his correspondence, Cecil did not deny the complaint but chose to stay silent and claimed privileged communication;
• the committee and board failed to consider the circumstantial evidence, coupled with all direct evidence, that pointed to admissions on two separate occasions by Cecil to drafting and being responsible for drafting the second SD;
• the committee and board failed to consider the testimony from three of Cecil's witnesses, lawyers who allegedly had a close relationship with Cecil, and their evidence contradicted their earlier letters to the complainant;

• the committee and board failed to consider the motives behind the evidence given by Cecil's witnesses;

• the committee and board failed to consider that a former Malaysian Bar president who was one of Cecil's witnesses did not lodge a complaint against him (Cecil);

• the committee and board failed to appreciate that Cecil never called Johari Razak to testify for fear that Johari might reveal that he (Cecil) drafted the second SD or give other damaging evidence. Johari, who is also a lawyer, is the younger brother of Prime Minister Najib Abdul Razak;

• the committee and board failed to attach sufficient weight of evidence given by a senior lawyer to events that happened at the Renaissance Hotel where Cecil allegedly made the first admission at a wedding of a judge's son;

• the committee and board failed to attach evidence by Americk Sidhu with regard to a meeting made between him and Cecil on Feb 28, 2013;

• the commitee and board placed inappropriate weight or emphasis that the Bar had not lodged a similar complaint against Sunil Abraham, who is Cecil's son;

• the committee and board gave little or no weight to the evidence that Cecil refused to take any steps to defend his reputation;

• the committee and board failed to consider the evidence that Cecil abandoned his solicitor-client privilege line and came about to expressly deny involvement in the second SD only after carpet businessman Deepak Jaikishian discontinued his defamation suit against the prime minister and all matters relating to Altantuya Shaariibuu murder, and the significant change of stance of Cecil; and

• the committee and board failed to appreciate despite the differences in drafting and being responsible for drafting the SD, (that) both are capable of leading to solicitor's misconduct.

First admission

Last month, Malaysiakini reported that Cecil was freed of a charge of alleged misconduct in drafting the second SD by a three-member disciplinary committee and the disciplinary board. Malaysian Bar president Steven Thiru indicated then that it had filed the appeal.

While it was widely reported that Americk revealed at the Malaysian Bar AGM in March 2013, that Cecil admitted to him over his role in drafting Balasubramaniam's second affidavit, Cheah revealed in her affidavit in support that Cecil made the first admission earlier.

This was after the wedding of the judge's son where Cecil admitted on Dec 14, 2012, after dinner drinks at a bar in front of several prominent lawyers, that he was responsible for drafting the second SD on Najib's instructions.

The first admission came after Deepak had in an interview with TV PAS two days earlier (Dec 12, 2012) identified the solicitors involved in the preparation of the second SD and that were Cecil and Sunil.

The chairperson of the disciplinary committee, Foo Kai Yuen, in clearing Cecil, ruled the benefit of the doubt had to be given to Cecil in relation to his admission over dinner drinks on Dec 14, 2012, and that the Bar did not satisfy the burden of proof by proving the case beyond reasonable doubt.

Kuladeva Retnam, the second member in the panel, found that it was not unethical even if Cecil had prepared the second SD as it was done for a client and not for Balasubramaniam.

Lawyer J Chandra, who was the third person in the committee, ruled the Bar's failure to pursue the complaint against Sunil was fatal and that there was no direct evidence linking Cecil to having drafted the alleged SD. -Mkini