The Malaysian Bar contended that it had a statutory duty to inform the public in regard to the conduct of Najib Abdul Razak’s lawyers during the former prime minister’s appeal in the RM42 million SRC International corruption case.
In its statement of defence, the statutory body said the impugned press release by its president Karen Cheah also did not prejudge Zaid Ibrahim and two other lawyers prior to the trio’s related disciplinary proceedings by the Advocate and Solicitor Disciplinary Board (DB).
The Bar and Cheah’s court filing at the Kuala Lumpur on Nov 7 was in response to the defamation suit filed by Zaid and two other two lawyers - Liew Teck Huat and Rueben Mathiavaranam - earlier filed on Sept 30.
On Sept 30, the three senior partners of law firm Zaid Ibrahim Suflan TH Liew and Partners (ZIST) mounted the writ of summons over the press statement’s allegation of misconduct related to Najib’s appeal.
In the media release dated Aug 19, Cheah, in her capacity as Bar president, claimed that the conduct of Najib’s lawyers amounted to an abuse of the judicial process.
Cheah later issued a further press statement on Sept 5 affirming the previous media release.
The former finance minister is now serving a 12-year jail sentence following the apex court dismissing his appeal on Aug 23.
However, Najib’s application to review the appeal decision is set for hearing before the Federal Court on Jan 19, 20 and 26 next year.
According to the statement of defence of the Bar and Cheah sighted by Malaysiakini, the two defendants contended that they are protected by qualified privilege as the statutory body’s object and purpose among others is to “maintain the standards of conduct of the legal profession in Malaysia and to express its view on matters affecting the administration and practice of the law in Malaysia”.
Qualified privilege is a defence that applies in a situation where the words were issued by a person who has an interest, or a legal, social, or moral duty to do so.
The two defendants contended that the conduct of Zaid and the two other plaintiffs during the appeal had garnered mass media coverage and concerned the conduct of lawyers within the legal profession, and was a matter affecting the administration and practice of law in Malaysia.
The Bar and Cheah maintained that the press release was published in good faith and without malice, published pursuant to the object and purpose of the first defendant under Section 42 of the Legal Profession Act 1976.
The defendants said they will also rely on Section 111 of the Act.
Section 42 lays out the object and powers of the Bar. Section 111 states that “no action or proceeding shall lie against the disciplinary committee, the disciplinary board, the Malaysian Bar, the Bar Council or any State Bar Committee or any member thereof for any act or thing done under this Act including any pronouncement or publication of any decision of the disciplinary board, unless it is proved to the court that the act or thing was done in bad faith or with malice”.
“The first defendant (Bar), through the second defendant as its president, had a duty or interest to publish the press release on its website to its members and the general public.
“Members of the first defendant and the general public had a corresponding duty or interest to know of and receive the press release,” the Bar and Cheah contended in the statement of defence filed on their behalf by lawyers from law firm Lee Hishammuddin Allen and Gledhill.
The two defendants contended that the Aug 19 press release as well as a follow-up media statement dated Sept 5 were not capable of determining or concluding the three lawyers’ guilt for professional misconduct as that is a matter for the DB to decide.
The duo contended that they have not breached their statutory duty as claimed by Zaid and the two lawyers, and the Bar had on Oct 3 lodged a complaint against the three plaintiffs with the DB pursuant to Section 99(3) of the LPA.
Section 99 deals with the matter of lodging a complaint against a lawyer or chambering student (pupil), while subsection 3 of the provision states “nothing in this section shall be taken to preclude the Bar Council or a State Bar Committee from making any complaint of its own motion to the disciplinary board against an advocate and solicitor or a pupil”.
“Under the LPA, the disciplinary board is a distinct and separate body from the first defendant and the Bar Council. It is the disciplinary board and not the defendants that decides if there has been any misconduct by an advocate and solicitor.
“The press release, in any event, was not capable of amounting to a decision, determination or judgment of guilt in respect of any misconduct on the part of the plaintiffs.
“If at all there is any pre-judgment, it is only to the extent that the Bar Council as a complainant had formed an opinion that the plaintiffs were guilty of misconduct in the same way the prosecution forms a view when they decide to prefer a charge against an accused for a criminal offence.
“There is no risk of any unfairness or prejudice arising from a pre-judgment (which is denied) of the plaintiffs’ guilt ahead of any disciplinary proceedings before the disciplinary board. It is the disciplinary board and not the defendants that decides if there has been any misconduct by an advocate and solicitor;
“There is no risk of any partiality or breach of natural justice during any disciplinary proceedings before the disciplinary board. The plaintiffs will be afforded the opportunity to participate and defend themselves at any disciplinary proceedings before the disciplinary board. The plaintiffs’ allegations here presuppose that the disciplinary board will find them guilty of misconduct,” the Bar and Cheah contended.
The two defendants also denied that the press statement was defamatory, further citing the defence of justification and fair comment.
Justification is a defence that the statements or allegations are factual and, if proven successful in court, this would act as an absolute defence against the legal action.
The defence of fair comment is one where the impugned statement was made as a fair comment, rather than as a statement of fact, over an issue of public interest.
In relation to the three plaintiffs’ claim that the Bar and Cheah should have given notice and sought verification from the trio before releasing the press statement, the duo countered there is no obligation to do so as the media release was about events previously widely reported by the media and not challenged by the trio.
Bar, Cheah published press release in bad faith - Zaid
Meanwhile, in a reply filed in court by lawyers from ZIST on Nov 29, Zaid and the two plaintiffs claimed that the Bar and Cheah cannot rely on the defence of qualified privilege as there were no special facts that could lead to the “existence of a common and corresponding duty and interest between the defendants and the general public, enabling the defendants to publish the press release”.
The three plaintiffs reiterated that there was no complaint lodged with DB at the material time and the DB had yet to make any finding over the allegation of misconduct.
Zaid and the two lawyers also reiterated that the Bar and Cheah have no right or obligation to publish the press release prior to lodging a complaint with the DB per Section 99(1) of the LPA, and releasing the press statement before lodging the complaint overstepped the powers (ultra vires) conferred by the provision.
The trio claimed that the duo not seeking verification or explanation before publication is evidence of bad faith and malice.
The three lawyers alleged that the Bar and Cheah cannot rely on the defence of justification due to the press release being purportedly based on "false facts or materially inaccurate facts".
The trio further contended that the two defendants cannot rely on the defence of fair comment as the press release' words were allegedly statements of fact and not opinion. - Mkini
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