PUTRAJAYA: The Bar Council has again failed in its appeal against the Advocates and Solicitors Disciplinary Board’s (DB) decision which cleared senior lawyer Cecil Abraham of professional misconduct.
This was in relation to a second statutory declaration (SD2) by the late private investigator P Balasubramaniam, or PI Bala, which purportedly cleared Prime Minister Najib Razak over any involvement in the high-profile 2006 murder of Mongolian model Altantuya Shaariibuu.
The Court of Appeal today ruled the complaint and evidence against Abraham was patchy and largely unsafe to warrant a finding of misconduct under Section 94 of the Legal Profession Act (LPA) 1976.
“This is not a rare case where the court is constrained to intervene to reverse the finding of the High Court,” said Tengku Maimun Tuan Mat, who chaired a three-member bench.
Also on the bench were justices P Nalini and Mary Lim.
Tengku Maimun said the bench was convinced that the April 4, 2013 letter and its appendices did not comprise a complaint under the LPA and the relevant disciplinary rules.
She said lawyer for the Bar, Bastian Pius Vendargon expended considerable time highlighting the pre-complaint correspondence betweeen Abraham’s legal firm and the Bar.
Tengku Maimun said the lawyer maintained that the High Court judge had not accorded sufficient weight to the letters.
“The thrust of the letters are direct queries from the Bar, asking whether the respondent (Abraham) had any knowledge and was involved in the preparation of SD2,” she said.
Tengku Maimun said Abraham replied that he was unable to divulge this information as the solicitor-client privilege applied.
She said at the disciplinary hearing, Abraham effectively altered his stance by denying any involvement in the preparation of SD2.
She said Vendargon submitted that this amounted to a departure and constituted strong circumstantial evidence that Abraham was involved in drafting SD2.
However, Tengku Maimun said Abraham had explained that his firm had merely given advice on the SD2 which warranted invoking solicitor-client privilege which was accepted by the Disciplinary Committee (DC).
“We on our part having examined the record, find that the circumstantial evidence does not establish the misconduct complained of,” she said.
She said it was still insufficient to meet the burden of proving misconduct after having considered all the direct evidence on record.
The Bar filed its appeal in May 2016, seeking to set aside the DB’s decision, and an order that Abraham be found liable for misconduct.
It claimed that the DB had erred in law in affirming the finding and recommendation of the Disciplinary Committee.
In March, the DB had affirmed the DC’s finding and recommendation, which found there was no cause for disciplinary action against the senior lawyer.
On Dec 5, 2016, Justice Hanipah Farikulah dismissed the Bar’s appeal.
A complaint was filed against Abraham for allegedly drafting the second SD for PI Bala, who was a prosecution witness in the murder trial of Altantuya.
On July 4, 2008, PI Bala signed the second SD, retracting the entire contents of his first SD, alleging that he was compelled to sign the first SD under duress.
A day earlier, Balasubramaniam told a packed press conference, organised by PKR, that the contents of the first SD, which implicated Najib and several others in the murder of Altantuya, were true.
Balasubramaniam, a key witness in the Altantuya trial, died of a heart attack on March 15, 2013, weeks after returning from India.
He had worked for political analyst and Najib associate Abdul Razak Baginda, who hired him to monitor Altantuya before her disappearance.
Rishwant Singh appeared for Abraham.
Lawyer Lai Chee Hoe, who appeared with Vendargon, said he would seek instruction from the Bar whether to appeal in the Federal Court.