Judge Abdul Rahman Sebli said the Bar was not legally bound to accept a motion that defames others, is vulgar, has a seditious tendency or relates to a matter which is sub judice.
He said the AGM of the Bar was not the proper forum for the discourse of such matters.
“As such, it is, in our view, incumbent on the council to scrutinise the contents of a motion submitted by any member,” he said, adding that it was also wrong for the Bar to accept any motion.
Rahman made the remark as the apex court today allowed lawyer Muhammad Shafee Abdullah’s appeal over the Bar’s breach of its statutory duty under the Legal Profession Act (LPA).
Rahman, who sat with judges Rohana Yusuf and Vernon Ong Lam Kiat, also found lawyers Tommy Thomas and VC George liable for attempts to discuss Shafee’s misconduct as deputy public prosecutor (DPP) in Anwar Ibrahim’s Sodomy II case at the AGM in 2015.
Thomas filed a resolution to discuss Shafee’s misconduct at the AGM and to ask the incoming committee to refer the matter to the Advocates and Solicitors Disciplinary Board.
George seconded the motion.
Rahman said the Bar had no authority to discuss the conduct of lawyers at an AGM as the matter came under the purview of the disciplinary board.
He said the Bar should have complied with Section 99(1) of the LPA by referring the complaint to the board “in the first place” after receiving the motion from Thomas and George.
However, the motion was not tabled for debate as Shafee obtained an interim injunction from the High Court on the eve of the AGM.
In his 40-page judgment, Rahman said apart from the wrong procedure adopted by Thomas and George in lodging the complaint of misconduct, the Bar committed a far more serious breach of the law.
He said it published the motion on its website to be tabled as a resolution at the AGM.
“This is not only illegal but also grossly unfair and highly prejudicial to the appellant as it amounts to a prejudgment of his guilt ahead of the disciplinary proceedings,” he added.
He said that by the time Shafee obtained the injunction, the allegation of misconduct against him had already been disseminated to about 15,000 lawyers.
“It also attracted wide media coverage, due in no small measure to the motion by Thomas and George to condemn the appellant ‘in the strongest terms’ at the upcoming AGM on March 14, 2015.”
The motion was about Shafee’s conduct as DPP in Anwar’s sodomy appeal in the Federal Court, alleging that the lawyer had violated the legal profession’s rules that prohibit lawyers from publicising themselves.
The motion also alleged that Shafee had participated in nationwide roadshows with the purpose of insulting a convicted prisoner and for bringing attention to his role in Anwar’s conviction.
On May 26, 2016, the Kuala Lumpur High Court dismissed Shafee’s suit and the Court of Appeal upheld the decision in 2018.