Deepakgate–Musings on the Law and the Lawyerly

December 27, 2012

by Terence Netto@http://www.malaysiakini.com

COMMENT You can damn with faint praise; you can also achieve the same with an aria of it. An example of the first was when George Bernard Shaw extended two tickets to the opening night of one of his plays to Winston Churchill. “One for you and another for a friend, if you have one,” jibed the playwright.

Britain’s wartime leader volleyed back: He said he would like to attend the opening night’s programme but official duties prevented him; however, he would be free to attend the second night’s staging, “if there is one.”

Private eye P Balasubramaniam’s lawyer, Americk Singh Sidhu, laid it on copiously when he praised fellow legal practitioner Cecil Abraham’s integrity which he said was a byword among lawyers in the latter’s 40 years of service to the Malaysian Bar.

Americk (right) said he could not conceive that someone of Abraham’s vaunted stature would countenance the drawing up of a false statutory declaration such as carpet trader Deepak Jaikishan had indicated was the case with Balasubramaniam’s second SD that reversed the sensational avowals contained in his first.

Given the gravity of the contents of his first SD, elements of which shed light on the 2006 murder of the Mongolian woman Altantuya Shaariibuu, there was no taking the matter lightly.

Days have passed since Americk unequivocally vouched for Abraham’s probity, but Abraham himself is seemingly unperturbed by the brouhaha, holding his counsel in the face of a hail of imprecations.

The chairperson of one of the panels within the ambit of the Malaysian Anti-Corruption Commission interjected in the unfolding drama of the contradictory statutory declarations and its attendant issue of responsibility for them by revealing that Abraham had nothing to do with the MACC’s decision to close its investigation of Balasubramaniam’s conflicting declarations. Abraham (left) is a member of the panel tasked with reviewing the MACC’s operational procedures.

Here was a case of weighty individuals rising to speak up for someone who apparently opts for the silence that is not of the kind that purveyor of aphoristic maxims, La Rochefoucauld, held was the mark of a man who distrusts himself.

This silence is possibly the choice of one who seems intent on tiptoeing through a frightful thicket, mindful or not of what the poet Dante said about the hottest places in hell being reserved for those who in times of great moral crisis maintain their neutrality (read: silence).

The law is a charged field

Lawyers are trained to deal with complex situations by finding both precedents and innovative pragmatic procedures for dealing with them.

The deeper their knowledge of precedents, both inside and outside of the law, the likelier it is that their exertions would result in the protection of human values – like allowing the innocent to go free and punishing the guilty.But if it’s only the law they know and little else, they would soon find that the law is a charged field where principles may be traduced by interests, and interests may be disguised as principles.

Knowing much law but, more importantly, the philosophic matrix from which emerged the Greco-Roman statues that formed the basis of English common law, the famed American jurist Oliver Wendell Holmes made this observation on contrasting dispositions individuals may bring to the practice of the profession:

“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Troubling little scruple that – “the vaguer sanctions of conscience.”These proved no trouble at all to the lawyer Vernon Jordan, Bill Clinton’s amoral chum whose advice was sought in the days when the latter was readying for a run for the US presidency.

According to a biography of Clinton by David Maraniss, Jordan, renowned civil rights advocate, proffered a simple advice when the grapevine began to hum with legends of the Arkansas governor’s womanising and the debate among Clinton’s advisers revolved around whether he should wait for journalists to raise the matter or simply preempt them. Jordan’s advice was, “Screw ’em! Don’t tell ’em anything!”

Some years later, when another sex scandal occurred on Clinton’s watch at the White House (1992-2000), Jordan was alleged to have told Monica Lewinsky, an intern suspected to have had an affair with the president: “They can’t prove anything. Your answer is, ‘It didn’t happen. It wasn’t me.’ “At least, Jordan’s proclivity for denial pertained to cases involving infidelity, not murder.

A murder most foul

But we know that for an ethical standard to hold, it must forbid lying in all circumstances, regardless of the magnitude or lack of the moral transgression entailed. Whither the ethical standard when we are faced with the silence of peripheral players in the case of a murder most foul, as was Altantuya Shaariibuu’s  killing.

The silence is lawyerly; it is not impugnable. In the end, it makes the point that law alone, no matter how comprehensive, cannot assure practice of what is morally imperative.

Back in the 17th century, Hugo Grotius, the father of modern law, quoted with approval the advice that the classical Greek playwright Euripides in ‘The Trojan Woman’ put in the mouth of Agamemnon addressing Pyrrhus: “What the law does not forbid then let shame forbid.”

This counsel retains its moral worth. While the law and its practitioners are extremely important for the existence of civil society, they cannot be considered sufficient guarantees of human decency.

The exemption Dr Samuel Johnson, the most quotable of writers after Shakespeare, made for his principle of not speaking ill of a man behind his back was well taken.On one occasion, the sage was derisive about a man who had just left his company but Johnson said he believed that the man he was referring to was an attorney.