December 2, 2015
COMMENT: The piece by Mr. Kumar is loaded and controversial. It is 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
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:
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.
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 .
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
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
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.