Abuse of process brings disrepute to our justice system

19 August 2022

The Malaysian Bar is aghast with the slew of developments unfolding before our eyes in the case involving former Prime Minister, Dato' Sri Najib Razak, at the Federal Court.

The nation is witnessing our justice system being abused and brought to disrepute through the frantic acts and numerous attempts to postpone the hearing of the case, application to discharge from acting for the former Prime Minister, defiance by refusing to proceed with submissions on the appeal after the Federal Court had made its ruling, and the sudden discharge of Zaid Ibrahim, Liew Teck Huat and Rueben Mathiavaranam, by Dato' Sri Najib Razak.

The public must be made aware that the level of professionalism expected of advocates and solicitors is measured against the existing rules on practice and etiquette. The Bar Council expects adherence by all lawyers so as to preserve the highest professional standards and in upholding the dignity of the legal profession. The Legal Profession (Practice and Etiquette) Rules 1978 ("LPPER") sets the barometer for the conduct of lawyers in the country and also reflects the underlying paramount duty of lawyers to the court as officers of the court.

The Malaysian Bar takes the position that when a new lawyer takes over a case, the lawyer must adhere to Rule 6(a) of the LPPER which states that an advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the hearing dates fixed by the court, and the new lawyer must also adhere to Rule 24(a) of the LPPER which provides that an advocate and solicitor shall make every effort to be ready for trial on the day fixed. Read together, both rules clearly indicate that a lawyer must address his/her mind and assess that he/she is able to proceed with the case before deciding if he/she can take on the matter. The underlying paramount duty to the court, respect for the administration of justice, and upholding of the dignity of the legal profession, are imbedded and should be deeply rooted in all lawyers.

Whilst the former Prime Minister is entitled to appoint new lawyers to take over a case for whatever reasons, he takes the risk of facing the possibility that the court would not necessarily allow any requests for postponement because a lawyer who takes over the case must be in a position to proceed with any prior dates that have been fixed by the court. By the same token, the client that discharges his/her lawyer or a lawyer who seeks to be discharged from representing his/her client, is still subject to the overall control and discretion of the court whether to allow such discharge. Simply put, it is not an automatic entitlement.

The various attempts to undermine the justice system through such unscrupulous strategies are a perversion of our justice system and an abuse of the court process. The advocates and solicitors involved in such acts have conducted themselves unprofessionally and would have to face disciplinary action.

It has been observed that Dato' Sri Najib Razak has abruptly discharged his legal team again today, making it the second time he is resorting to such tactics. The decision to change lawyers so late at this stage was his. Therefore, any purported injustice he claims himself to be in, if any, is surely self-inflicted. His expectations of a fair trial, of which has been fully accorded to him at all material times, must also mean that he places himself in the judicial system without any crafty schemes especially if he truly values his right to liberty. What is apparent is that there have been no convincing reasons given for such discharge twice, either so near to the hearing dates or even during hearing of the matter at the Federal Court. Such hearing dates were not only fixed well in advance, but publicly publicised. Any attempt to change the narrative to one of purported victimisation is highly mischievous.

The Malaysian Bar notes that there have been vicious and unwarranted attacks or threats levelled on the Judiciary and the Chief Justice as a result of the unfolding events at the Federal Court in this case, and wholly condemns the unfair anti-judiciary rhetoric and sentiments painted by irresponsible parties. The Malaysian Bar stands in solidarity with the Judiciary and calls on them to remain resolute and not succumb to such unsavoury pressure.

Karen Cheah Yee Lynn

President Malaysian Bar