Justice, truth must prevail in inquest into firefighter Adib’s demise

Photograph: The Sun Daily

The Malaysian Bar is disconcerted with recent events in the ongoing inquest into the death of the firefighter, the late Muhammad Adib Mohd Kassim, in relation to the withdrawal of the advocate and solicitor, Syazlin Mansor, from further representing the Ministry of Housing and Local Government, the Fire and Rescue Department as well as Adib’s family and the reactions arising therefrom.

An inquest is a legal proceeding comprising an inquisitorial and investigative process — not a criminal trial — where a coroner inquires into the circumstances surrounding a death and whether any person is criminally concerned in the cause of the death.

It has now become apparent that Syazlin was appointed directly by the housing ministry and the Fire Department to represent them when lawfully it is an officer from the Attorney General’s Chambers who should appear for the government and its agencies – unless the attorney general gives an advocate and solicitor a fiat to appear for the government pursuant to the Government Proceedings Act 1956.

No such fiat was issued to Syazlin for her appointment, and hence she should not have been appointed as legal counsel by those government agencies.

In his media release dated 28 May 2019, the attorney general also raised the point that Syazlin “was in a conflict of interest position when she agreed to act for the housing ministry and the Fire Department as she was also acting for the deceased’s family, who have a direct interest in the Inquest”.

Indeed, it is indisputable that advocates and solicitors hold fiduciary and/or contractual duties towards their clients. It is therefore the obligation of every advocate and solicitor to scrupulously guard against, and avoid, situations of conflict of interest — both actual and potential — particularly in representing multiple parties.

The seemingly common interest of various parties being represented by a single advocate and solicitor could potentially result in divergent or competing interests, and thus impair the ability of the advocate and solicitor to act in the best interest of the parties concerned.

One example is if, in the aftermath of the inquest, Adib’s family files a civil suit against the government. As another example, if the inquest determines that the government was responsible for Adib’s death, the firefighter’s family has the right to commence legal action against the government.

In both these situations, the evidence that had been tendered and led by Syazlin during the inquest — ie when she was simultaneously representing the government and the family — could then be used during the subsequent legal proceedings, hence resulting in a clear case of conflict, as the various parties would then have opposing interests.

The prohibition against advocates and solicitors acting in a position of conflict is stipulated in the Legal Profession Act 1976, the Legal Profession (Practice & Etiquette) Rules 1978, and the Rules and Rulings of Bar Council Malaysia — for example, where the acceptance of a brief would render it difficult for an advocate and solicitor to “maintain [his/her] professional independence” or if it is “incompatible with the best interest of the administration of justice”.

In determining whether there is conflict, the objective test to be applied is not whether there is actual conflict, but whether there is an appearance of conflict.

In Teoh Meng Kee v Public Prosecutor [2014], the Court of Appeal held as follows:

An inquiry of death is not like a criminal trial. … It is only an inquiry by a magistrate as to the cause of death and the deputy public prosecutor is there not to prosecute anyone but only to assist the court with the examination of witnesses for the purpose of receiving the evidence. … Counsel present is there not to defend anyone but only to look after the interest of those who have appointed him. … [emphasis added]

In light of the above, the Malaysian Bar is of the view that Syazlin should have therefore declined to act simultaneously for the housing ministry, the Fire Department and Adib’s family.

While an inquest is not a trial and is only inquisitorial in nature, the strong public reaction to this is itself illustrative that, in the public eye, there is an appearance of conflict of interest.

It is highly regrettable that no objections were raised at an earlier stage of the inquest proceedings, either by the coroner or the conducting officer, once Syazlin was on record for the parties concerned.

The instructions for her to withdraw as counsel at an advanced stage in the inquest may have contributed to a negative perception by the public regarding the turn of events.

The unfavourable perception is further exacerbated by the earlier act of the deputy public prosecutor in filing an affidavit that reportedly stated that the death of Adib was not due to beatings by any person, when any findings relating to cause of death are in fact exclusively the prerogative of the coroner in an inquest.

All parties concerned should have adopted a more prudent and cautious approach from the outset. The failure to do so has led to unnecessary speculation and adverse perceptions.

Be that as it may, once an advocate and solicitor’s position in a matter becomes untenable — at any stage of the proceedings — due to a conflict of interest, he or she must discontinue from acting for parties with divergent or competing interests.

As such, the attorney general’s action in revoking Syazlin’s continued representation of the housing ministry and the Fire Department was a step to resolve the conflict of interest and preserve the integrity of the ongoing inquest.

As the chief legal adviser to the government, the attorney general is entitled to take this position, which must not be construed as muzzling any particular or opposing view regarding the events leading to Adib’s demise.

It is noteworthy that the attorney general in no way precluded Syazlin from continuing to represent Adib’s family in the inquest; she withdrew from doing so, of her own accord.

Syazlin’s withdrawal as legal counsel in no way invalidates or diminishes the evidence that has been adduced thus far, as all such evidence will remain on record.

Every member of the bar is urged to be vigilant and circumspect and to examine on a case-by-case basis whether he or she would be “embarrassed”, or if his or her professional conduct would be likely to be called into question, if a brief is accepted. This is a duty that all advocates and solicitors must take seriously.

It is crucial that these recent developments not be permitted to detract from the ultimate objective of the inquest — to shed light on the circumstances surrounding Adib’s tragic death and to bring those responsible to book.

The Malaysian Bar calls on all parties in the case to do their utmost to ensure that not only is justice done, but that it is also seen to be done. Truth and justice must prevail.

Abdul Fareed Abdul Gafoor is president of the Malaysian Bar.. - ALIRAN