By Gurdial Singh Nijar
Malaysiakini
February 16, 2015

COMMENT Several interviews in national daily newspapers given by the lawyer engaged as a prosecutor, Muhammad Shafee Abdullah, have reignited issues surrounding the conviction of Anwar Ibrahim.

In a rather brutal attack on Anwar, whom he helped put away for a five-year jail term, Shafee implied that the accused would have been torn to shreds if he had testified, instead of giving his ‘evidence’ from the dock. He labelled Anwar a ‘coward with something to hide’.

I do not recall any such condemnatory remarks being ever made publicly by the former lawyers from the Attorney-General’s Chambers who conducted the prosecution at the earlier two judicial tiers – the High Court and the Court of Appeal.

Such statements seem to be at odds with established ethical standards – as applicable to lawyers appearing as defence counsel or for the prosecution.

Shafee was enlisted as a prosecutor only for this case – over the strenuous objections of Anwar’s legal team.

He remains a member of the legal profession and subject to the rules promulgated under the Legal Profession Act 1976. These Practice and Etiquette Rules 1978 have the force of law.

One particularly relevant rule forbids lawyers from publicising their feats. Rule 13 says that it is contrary to etiquette to solicit reporting of any matter in which a lawyer has been professionally engaged.

The rationale for this is to prevent lawyers with money, or connections, or both from advertising themselves; and securing an advantage over other lawyers.

The Bar Council has in the past disciplined lawyers for infraction of this self-publicity rule.

Secondly, a lawyer acting in his capacity as a prosecutor is a custodian of the public interest, as represented by the Attorney-General’s Chambers. He is there to present the evidence in an even-handed manner.

A lawyer has to act with fairness in a trial

The rules repeatedly make it clear that a lawyer is to act with fairness during a trial; not to insult or annoy witnesses with his questions. This must, perforce apply as well to situations after a trial.

It is not his role to overstate the case or seek vengeance, much less to savage an accused after he has been convicted.

Shafee’s recent declaration that he is ready to swear to the guilt of the accused in a religious place is, with respect, way beyond a prosecutor’s professional brief.

Judicial history is replete with cases of miscarriages of justice occasioned by a prosecutor’s failure to appreciate the ambit of his role.

One such United Kingdom case was made famous by the award-winning movie ‘In the Name of the Father’, where convictions of eight accused persons were set aside when it was discovered, quite fortuitously many years after the conviction, that an over- zealous prosecutor had concealed exonerating evidence from the court.

This is not to suggest, for a moment, that the Anwar Sodom II case is similarly infected – although the defence maintains that it was precluded from presenting the full evidence on ‘conspiracy’.

A prosecutor must at all times be professional

It is to emphasise that a prosecutor must at all times maintain a professional and equanimous stance in the conduct of a case. And this must be clear at all times – not just before and during a trial – but crucially even after a case is concluded.

The rather brutal assault of the convicted Anwar goes beyond a self-congratulatory proclamation by Shafee of his forensic brilliance ‘if Anwar took the stand’ – predicated on an entirely hypothetical situation. (The Rules also forbid lawyers from referring to facts that they are unable to prove.)

It could be perceived (rightly or wrongly) as manifesting an implacable hostility to an accused. It leaves the public guessing as to how much of this could have influenced the conduct of the case – wittingly or otherwise.

Already leading members of the Bar, including several past presidents, have deprecated such conduct.

Given the interest that this case has generated worldwide attention, would it not have been more prudent for this prosecutor to refrain from making comments that could needlessly erode the standing of the country and its judicial apparatus?

GURDIAL SINGH NIJAR is a law professor at Universiti Malaya.