Privilege and the Truth–The Kevin Morais Story


December 2, 2015

COMMENT: The piece by Mr. Kumar is loaded and controversial. It isDino about Lawyers, the Law and Politics. It also involves the case of the brutal murder of DPP Dato’ Anthony Kevin Morais and the battle between two surviving brothers, Charles and Richard Morais. Malaysians who are interested in getting at the truth are now caught in this maze of intrigues and rumours.

We no longer trust the Police to do the right thing as the IGP and his investigators and other enforcement agencies, including MACC, and my alma mater Bank Negara Malaysia are known to be biased in favour of the Prime Minister in a number of instances in the past.

On the other hand, Mr Kumar, who appears to be sympathetic to the Prime Minister and the Inspector-General of Police,  raises a number of pertinent issues about the role of the Malaysian  Bar Council in social or civil society activism (an euphemism for political activism), the ethics of lawyer-client relations, the value of statutory declarations, the Rule of Law and the state of our justice system.

By posting this Kumar article,  I hope I can get an appropriate response or rebuttal from the Malaysian Bar Council, Mr Eric Paulsen of the Lawyers for Justice,  and distinguished officers to the Court.

We members of the Malaysian public need to be educated on the finer points of the Law to enable us to take politics out of the Kevin Morais case  and others (Altantuya,  Kugan, Teoh Beng Hock, and Ahmad Sarbani and Hussein Najadi).

Admit it, Mr. Kumar. Too many  murder masterminds have been able to get away with murder (with no apologies for the pun). Furthermore, we need to regain public trust in our legal system and law enforcement agencies.

In particular, as a concerned citizen, I ask you, Mr. Kumar, what is wrong with our Royal Malaysian Police Force led by the current Inspector-General of Police, Tan Sri Khalid Abu Bakar? Is Khalid a tool of the Prime Minister or is he a public servant who is engaged to maintain public order? As for you, Mr. Kumar, I trust you are concerned about ethics, not politics. — Din Merican

Privilege and the Truth–The Kevin Morais Story

by GP Kumar

http://blogtakes.com/2015/12/02/sds-and-the-siddhu-factor-updated/

While there is an element of truth in what Eric Paulsen (Lawyers for Liberty) suggests about protecting lawyer-client privilege his definition of privilege is misinformed, fanciful and incomplete. His definition is probably dictated by convenience and political expediency . Blogger G P Kumar has updated his piece which now reads:

Americk-SidhuCharles-Suresh-Morais

Privilege, whether it is lawyer client privilege (which can only be waived by the client), “without-prejudice” privilege or public-interest privilege may be waived once it is no longer confidential.

The vast majority of Malaysian lawyers, especially those who mix their professional obligations with their political pursuits as quasi politicians, breach their legal obligations to their clients on a daily basis by waiving their client’s privilege.

They destroy, weaken, the lawyer-client privilege with gay abandon on the steps of the courts before the Press and the cameras. They make statements about matters that are otherwise confidential and for the courts to consider without their client’s consent. In the process potentially jeopardizing their client’s causes and breach confidentiality.

For many Malaysian lawyers, the lure of instant fame, the pursuit of personal glory over the interests of their clients and that of the law before fawning reporters takes precedence over everything else.

The majority of clients are themselves blissfully unaware of the breach by their lawyers of that privilege which is theirs. When that happens, it undermines their position as litigants and weakens their position.

Logo Majlis Peguam Malaysia (Malaysian Bar Council)

The Malaysian Bar, a majority of whose members are culpable in this regard, has thus far stayed silent on this point arguably because they are themselves ignorant of how privilege can be lost.

The most recent example of such a misdemeanor, nay aberration, is the Morais Statutory Declaration (SD).

The Charles Morais SD is now well and truly in the public domain. It contains serious, highly selective and damaging material against individuals without any reference to evidence capable of supporting the statements contained within it.

Americk Singh Siddhu- How and when not to draft SD and bw involved in it.

Americk Singh has become a lightning rod for many unfounded allegations. This is largely because of Americk’s history of being rather cavalier in his approach to matters legal (and political). He has in the past made several public statements or supported statements by others alluding to what he asserts is the culpability of the Prime Minister and his wife in the offence of murder .

Najib and Rosmah2

Americk has further implicated himself, not once, when he advanced the proposition– via the popular media, social and political platforms– that the Prime Minister and his wife are culpable in murder, without the minimum legal standard of proof to support his assertions.

The most egregious example of Americk’s conduct in this regard was the abuse of his client, the late Balasubramaniam Perumal whose “SD” he admits to having drafted in no uncertain terms with scant regard ‘for the truth or otherwise to what was contained in it’.

Lawyers who engage in politics whilst in practice will have to account for their failures like everyone else. It is a risk they assume for reward.

Privilege– Professional Responsibility and Evidence

There can be no privilege as claimed by Americk or Charles Morais over the Morais SD. If Amrick on behalf of his client is claiming legal professional privilege, then he prima facie must have created that SD for a dominant purposes such as litigation (or some other dominant purpose which would necessarily attract the claim of privilege – or for providing legal advise): And in whose cause would that dominant purpose of litigation or advise have been given for?

Once a client does what Morais has done (publish the document) that privilege is necessarily waived or lost. Americk having admitted to assisting in preparation of that document has much to answer for—both in its creation and for its content.

Lawyers are by their training required to take certain precautions when accepting instructions and interacting with their clients. In the course of that interaction they must determine how much risk they are prepared to assume especially when drafting unsubstantiated instructions (statements) of their client as Americk appears to have done in the Morais SD.

Every document brought into existence between lawyer to lawyer or lawyer to client in any proceeding or negotiation is necessarily evidence. It is merely a question of whether or not and when the document will be called and whether it will be admitted into evidence at a hearing or trial.

A Duty of Care

There is a primary “duty of care” principle that underlies this proposition where lawyers and their conduct are concerned. It is an integral part of what is called professional conduct.

A lawyers acting prudently will always be mindful of documents they bring into existence, with or without the client, are likely to be called for at any stage of proceedings or investigations through disclosure. And to claim privilege especially in situations such as this requires a very strong argument capable of persuading any competent court that a claim of privilege should apply.

The problem for Americk is this: what class of privilege is Amrick claiming? Whose privilege is he fighting to protect?

Americk cannot once more (as he did with the late Balasubramaniam’s matter) claim he “was not concerned for the truth or otherwise” of what was contained in the Balasubramaniam SD. There are rules, legal, ethical, professional and moral rules that bind a lawyer in the execution of his professional obligations as much as it does the client where it concerns the truth, whether in the form of affidavits or SD’s.

It is simply not correct to assume as many lawyers do, that an SD is  an instrument for their protection when accepting instructions from a client and ‘to hell with what the client says in his SD’.

Third Party Privilege and Interests to Protect

KUALA LUMPUR 05 February 2015. Pengarah Eksekutif Lawyers for Liberty, Eric Paulsen ketika tiba di mahkamah atas tuduhan mengeluarkan kenyataan menghasut di laman Twitter miliknya di Mahkamah Sesyen Kuala Lumpur. NSTP/Abdullah Yusof

Paulsen and other lawyers may scream till they are blue in the face about breaches of legal professional privilege by the Police as they allege. But Paulsen must also know who to direct his screams at in this case.

Americk’s conduct does not attract legal-professional privilege, lawyer-client privilege or any other form of privilege including common-interest privilege in his favour. The primary maker of the statements in the Morais SD has waived any privilege by placing the SD in the public domain.

Relevantly, as the SD does affect the interests and reputations of third parties such as those who are adversely mentioned in the SD, they too may now claim privilege over the document in its entirety, or at least to the extent it affects their interests. Privilege may also extend to them.

If they do not protest against the IGP’s requests to question Americk Singh Siddhu about the contents of the Morais SD, Amrick has nothing to hide behind and has a duty to co-operate in any investigation by the Police or other agency into allegations made either by him through Morais or by Morais through him.

Implicating the late Kevin Morais in criminal conduct

The Charles Morais SD contains allegations of serious criminal misconduct by not only the alleged murderers of his late brother Kevin Morais. They also (by implication of statements by Morais), impute serious criminal misconduct and breaches of professional conduct on his late brother Kevin Morais.

Did Americk Singh Siddhu caution Charles Morais or offer him advice (as he ought to have) as to the consequences of making such statements in the nature of what he advanced in his SD without the evidence to support or a reasonable belief in the truth of those statements?

Was Americk negligent or reckless in the execution of his professional obligations to Charles Morais by failing to advise Charles or to point out  to Charles the possible implications of what he was alluding to about his brother the late Kevin Morais in his SD?

Or is this another case as Manjit Dhillon, Americk’s lawyer, claimed at the July 2008 press conference (Malaysia Kini on your tube) of Americk Singh Siddhu not caring about the truth or otherwise in the SD as he did with Balasubramaniam?

Common Interest Privilege and the Trap for Americk Singh Siddhu

Let us hope that after all the effort Americk has once more made in attempting to besmirch the reputations of politicians (in particular the PM and his wife), he is not going to claim common interest privilege over Morais’ SD.

This is the result of lawyers engaging in politics alongside their practice as lawyers and not knowing where to draw the line.

The key rule in claiming common interest privilege is to:

a) avoid co-mingling legal advice with non-legal matters or administrative tasks;
b) never to refer to legal advice in non-legal documents or public statements;
c) never to refer to legal advice in communications to third parties who do not share a common interest;
d) retain common lawyers;
e) when in doubt about whether a third-party has a sufficiently common interest in legal advice, obtain a confidentiality undertaking before disclosing the document;
f) mark the words “privileged documents” as ‘[insert company or client name] claims legal professional privilege over this advice and disclosure is not permitted to anyone outside of [insert client or company name] without legal advice’; and

g) finally about common-interest privilege – sharing the privilege brings with it a shared responsibility in maintaining it.

Briefly, a party to a common interest privilege claim, may destroy the privilege for itself and all of the other parties to that claim. This is what Morais would have done by publishing his SD in the Sarawak Report.

Speaking ill of the Dead

When challenged, Morais will have a different story altogether it may be assumed. And that is when Americk will likely come undone again.

Amrick Singh Siddhu ought to have reasonably known that when Charles Morais affirmed in his SD the claims he had made via the SD it involved a further and more serious set of allegations:

i) The allegations are that Charles’ late “beloved” brother Kevin Morais had in fact stolen or appropriated government property unto himself without lawful authority. The downloading and dissemination of confidential government documents about a case.

ii) The allegation that Kevin Morais relayed to Charles that he had prepared charges (Charge Sheets) against “certain high level government personalities”; then passed that information on to Charles Morais in a pen drive.

The allegation in this regard on the face of it is implausible as it is exculpatory of the late Kevin Morais’s misconduct as an officer of government and the courts from all accounts. If the SD is to be believed then all 3 brothers appear to be tainted by their own evidence against each other.

That information if it does exist as claimed by Charles Morais was not the property of the late Kevin Morais to download for the purposes Charles Morais claims the late Kevin Morais downloaded it for (too much LA Law TV fantasies here).

Further if Charles did love his “dearly departed” brother why would he implicate him in criminal and professional conspiracy alleging misconduct in his role as an officer of the court in death?

And further still by Charles making admission to possessing the information in a pen drive now he claims he has possession of, he is admitting to receiving stolen property at the very least or being complicit in the dissemination of privileged information or material possibly covered under the Official Secrets Act or its equivalent.

Such information, if the allegation is indeed true, was not Kevin’s Charles’ or Americk Singh Siddhu’s privilege to waive on behalf  of anyone or to present to the Sarawak Report to disseminate. In participating in that process Americk is in our view compellable to answer for his misconduct.

Americk’s duty as an officer of the Court

Did Americk Singh Siddhu advise or alert Charles (as he had a duty to do) of the consequences of firstly making a declaration in the nature of the SD Charles made before him?

Did Americk act without regard for the fact, once it was drawn to his attention that he and Charles were now possibly furthering an illegal enterprise; and

iii) Was Americk paying attention to Charles’s allegations or become aware at any stage of the alleged criminal conduct of the late Kevin Morais as alleged to him by Charles (if Kevin did unlawfully download the information Charles claims Kevin gave him in a pen drive)?

Did Americk aid Charles Morais or anyone else in any way in conveying a copy of the Charles Morais SD to the Sarawak Report or any other third party?

Why did Americk not withdraw from taking instructions when he was without the benefit of supporting evidence before drawing up and witnessing the deposition of Charles Morais in his SD? Why did he go public on the SD instead?

The IGP’s Position-Americk’s Dilemma

Americk-Sidhu_khalid_Charles-Morais_600

The IGP has received good strategic advice in now demanding Americk Singh to come to Dang Wangi and  explain the contents of  Charles Morais’s SD; he would also demand of Americk Siddhu the purpose of that affidavit now that Charles Morais has waived privilege on the document.

The SD incorporates the use of unlawfully or illegally obtained information, classified information protected under the Official Secrets Act and a breach of legal professional conduct and the possible concealment of a crime amongst many other breaches on Americk’s and Charles’ part.

Americk had implicated himself previously by bringing into existence a document which made similar unsubstantiated serious allegations of a criminal nature or a document which imputes criminal conduct on the highest office in the land. It is not something anyone can claim privilege over or ignore in the IGP’s position.

Charles Morais’ SD

The Charles Morais SD has now taken a life of its own and Amrick has no protection or control over it.  He must answer to any inquiry by the police over its scurrilous and criminally defamatory allegations against the PM and his wife purportedly made by his client Charles Morais.

A lay person with little education is liable to be charged for offences that arise from publishing unsubstantiated allegations at least under the civil law. A lawyer who ought to know better is more liable and ought to have acted more responsibly and with greater care in this regard.

The Police have every right to bring Americk in and question him on the SD he is reasonably believed to have been complicit in creating for what now appears to be a wider purpose than he cares to admit to.

Americk Singh Siddhu’s previous conduct in such matters will be the albatross around his neck, come to haunt him now.

 

8 thoughts on “Privilege and the Truth–The Kevin Morais Story

  1. Some lawyer-politicians have saluted Americk Singh and praised him for what he did with regards to this particular SD. I’ll reserve my salute for GP Kumar for the time being. He..hee….
    __________________
    You must be joking MR. Aliefalfa. –Din Merican

  2. Who is this Kumar fellow? Does he deserve a response? Articles can be written for money as murder can be committed for the same reason. 🙂
    What ethics is there to talk about when murders can be covered by the very institution that is duty bound to unravel the truth?
    _____________
    Of course. We must expose such types because they are people in our midst who can be taken in by his arguments. I am not saying he is being paid by Najib’s agents since I have no evidence. But from his article, I can only say that he is leaning in favour of the Prime Minister. I need the Bar Council and Paulsen to respond. There is no way we can just murder and allow murderers to get a away with it.–Din Merican

  3. Is GP Kumar GRK (Gopal Raj Kumar) of the blog takemon.wordpress.com? I rather like reading his views.
    _____________
    Definitely not.–Din Merican

  4. All of us who can read and comprehend can talk about the law. Just read the law books, retain what ever you have read and reproduce it. It is akin to paying homage to the so-called three Rs. Like any book the content is not what is at issue. It’s interpretation and consitent application is what is of concern to the citizens of the state. The law is a very powerful tool of the state. And like all tools it can be used for the good or bad.

    In everything that is done by the state ethics and etiquette are the guiding principle. In this internet age information and news on what the state does is flowing like water form the hose of the Fireman. Every citizen can have a drink because water that cannot be absorbed will flow all over the place and will be consumed by even those who do not need it.

    We, therefore should be talking about etiquette when we use the apparatus of the state, may be, just may be the Bar Council can help us here.

  5. “Did Americk Singh Siddhu caution Charles Morais or offer him advice (as he ought to have) as to the consequences of making such statements in the nature of what he advanced in his SD without the evidence to support or a reasonable belief in the truth of those statements?”

    What nonsense is this ? If the content of the SD is false then the punishment under the law would be false evidence. SDs are problematic in terms of probative value.

    In this case if Charles told Americk that he had proof – a pen drive for instance – then what is Americk professionally obligated to do ?

    This whole blog post is riddled with generalities , ad hominems and unsubstantiated legalese.

    Ok Americk is a dodgy lawyer most probably connected to the Opposition.

    So (excuse my language gentle readers) fcuking what ? Anyone who has practised law in this country, knows that the big money paydays always, always involves some kind of political connections.

    The real issue here – and I’m going to speak loudly and slowly for those dumb UMNO propagandists to understand – IS THAT WE DO NOT HAVE AN INDEPENDENT JUDICIAL AND SECURITY APPARATUS TO DISCOVER IF PEOPLE LIKE AMERIK/CHARLES/HOST OF OTHERS ARE LYING OR IF THE NAJIB REGIME IS REALLY CONNECTED TO HIGH LEVEL MURDER CASE(S)

    This is really getting ridiculous.

  6. Kumar made a meal out of Paulsen ‘s claim for legal professional privilege. No media reported Siddhu made any claim of privilege. How could he? He claimed to be in the dark as to why on earth the Police want to interview him for drafting an SD. That’s all.

  7. The issue is actually very simple, but complicated by people who want to advance the argument for whatever side they are on, whether for political, monetary or whatever reason.

    A SD is a statement made under oath.

    The SD ends with the words…”I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960″

    Intentionally making a false statement as a statutory declaration is a crime under section 199 and 200 of our Penal Code.

    The lawyer’s job therefore is to impress upon his client the serious consequences of making a false statement under oath.

    Here is what the Malaysian Bar said on 15th July 2008 on the role and significance of statutory declarations.

    http://www.malaysianbar.org.my/members_opinions_and_comments/statutory_declarations.html

    Enjoy.

  8. This ‘discussion’ by GP Kumar, whoever he or she may be, is an extravagant exercise in obfuscation and confusion. A classic example of the way that all parties to the endless misrule of the Malaysian people so successfully conceal the truth by means of the old ‘bullshit baffles brains’ ploy. Mahathir was and remains the master of this technique, and Najib and his Umno/BN accomplices, not to mention alleged lawyers and journalists in league with them, all unashamedly practice it too. Cheers, DJ
    ________________
    Thanks, DJ. What is happening back home is making me sick.Some of the commenters on this blog have stopped writing because they know it pointless. But friends like you, Ambassador Malott and Asiasentinel’s John Berthelsen have not given up.I will not quit too. Keep well. –Din Merican

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