Muhammad Shafee loses appeal over suit against Malaysian Bar, AG

PUTRAJAYA: The Court of Appeal today dismissed an appeal by senior lawyer Tan Sri Muhammad Shafee Abdullah over his defamation suit against the Malaysian Bar, Attorney-General Tommy Thomas and two others relating to his conduct as the deputy public prosecutor in Datuk Seri Anwar Ibrahim's Sodomy II appeal.
Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah, who chaired a three-man bench, ruled that there is no merit in Muhammad Shafee's appeal.
"We find no error of the High Court judge. We find that the High Court judge had dealt extensively on the issue of defence justification," said Justice Wong, who heard the appeal with Justices Datuk Umi Kalthum Abdul Majid and Datuk Ahmadi Asnawi.
Justice Wong said the appellant, Muhammad Shafee, knew that the so-called "Kelana Jaya talk" was a political event and he willingly took part in it.
"When the evidence is evaluated wholly, the appellant had attended the political event to tarnish Anwar's reputation, bearing in mind that he (Muhammad Shafee) is the DPP in Anwar's appeal. We say he should not be allowed to be part of an agenda of a political party.
Justice Wong said the question then was whether what the appellant had said about Anwar amounts to condemnation.
The judge also said that Muhammad Shafee's reason for taking part in the Kelana Jaya talk was to defend the Federal Court decision, which the panel found to be not credible.
"Is there any need to defend the Federal Court decision? We say 'no'," he said.
On the issue of the disclosure of the in-camera evidence, the panel was of the view that it (in-camera evidence) could not be debated in the public domain.
"We are of the view that the in-camera evidence has not been transformed into evidence which anyone can refer to openly in the public domain," the judge said.
He said the court agreed with the submissions of counsel for the first and second respondents (Tommy Thomas and former Appeals Court judge Tan Sri V. C. George) that the ramification would be horrendous in that, if the appellant's stand is correct, wherein in future, whether it is the DPP or not, can disclose in-camera evidence at press conferences and openly inform the public about the evidence.
"That cannot be the law by any stretch of the imagination. Even if there is doubt as to the effect of the in-camera evidence order, the appellant, as an officer of the court, is duty-bound to seek clarification from the trial court before he decides that the aforesaid order has lapsed or has been set aside by what had transpired at the hearings at the Court of Appeal and Federal Court," he said.
Muhammad Shafee had appealed against the Kuala Lumpur High Court decision on May 26, 2016, which dismissed his suit against four defendants - the Malaysian Bar, (then) lawyer Tommy Thomas, former Appeals Court judge Tan Sri V. C. George and former Bar Council president Christopher Leong.
Judge Datuk Hanipah Farikullah held that Muhammad Shafee, as an advocate and solicitor and also a DPP holding a fiat, should not have divulged "in-camera proceedings" to the public as it must be made in a proper forum.
She held that all the defendants had established their defence on balance of probabilities, fair comment and qualified privilege.
Muhammad Shafee filed the suit in March 2015, claiming that on Feb 28, 2015, Thomas, who was seconded by George, had published and submitted a motion for discussion by the annual general meeting (AGM) of the Malaysian Bar on March 14, 2015, relating to his conduct as deputy public prosecutor in Anwar's sodomy appeal in the Federal Court.
The lawyer said the Bar Council and Leong had on March 9, 2015, published the motion on the website of the Malaysian Bar under the heading "Agenda and Motions for the 69th Annual General Meeting of the Malaysian Bar" that could be accessed by all members of the board.
The motion, among other things, concerned the behaviour of Muhammad Shafee as the chief public prosecutor, who staged roadshows relating to Anwar's sodomy case.
Muhammad Shafee claimed that following the release of the motion, the defendants maliciously defamed him to destroy his reputation and legal career.
In his statement of claim, Muhammad Shafee sought, among other things, a declaration that the motion was mala fide because the purpose of the proposal was simply to embarrass him and that the AGM was not a proper forum to hear the motion.
Outside the courtroom, Muhammad Shafee said to reporters he would file an appeal over today's verdict at the Federal Court and will apply for a minimum seven-man bench to hear his appeal. — Bernama