Wednesday, August 26, 2009

ALIRAN MEDIA STATEMENT

Aliran media statementhttp://www.aliran.com

Deputy Prime Minister sullies his office


Deputy Prime Minister Tan Sri Muhyiddin Yassin's comments when taking the Bar Council to task for their clarification with regard to Rohaizat Othman's disbarment are totally unfair and uncalled for. The DPM is obviously ignorant of the circumstances leading to Rohaizat's disbarment and does not understand the process involved in any action taken by the Disciplinary Board.


The DPM had blatantly stated, “We don’t know what is the agenda of the Bar Council... It is as if they are on the side of certain quarters. I am sure they have some agenda.”

This is clearly an unwarranted accusation without a shred of truth and it doesn't put the DPM in a good light at all. There is absolutely no basis for this scandalous statement. On what basis does the DPM claim “they have some agenda”? What does he mean when he said that “they are on the side of certain quarters”?

He further makes another startling statement, “It is not like he (Rohaizat) has committed [a] criminal breach of trust or broken the law.”

We are shocked beyond belief that the DPM should say this when Rohaizat was found guilty of misconduct by the Disciplinary Board. His case involved money being not returned to the client when it was legally due. Clearly there was a criminal breach of trust which the Disciplinary Board had rightly viewed as a serious criminal offence. They have meted out the maximum punishment that is available under the Legal Profession Act.

For the DPM to state that the Umno leadership was convinced that Rohaizat was not guilty of any wrongdoing is absolute nonsense.

Was the DPM misled into believing that Rohaizat was not guilty when he claimed that it was his partner who was guilty of the offence and as the partner had left his firm Rohaizat was found guilty of this crime?

But his former partner, Yusri Isahak, had dismissed Rohaizat’s claim as “a blatant lie”.
It was at this juncture that the Bar Council clarified that Rohaizat had been disbarred last year after he was found guilty by the Disciplinary Board of misconduct by failing to return about RM161,000 belonging to his client, the Penang Rubber Smallholders’ Co-operative.
The Malaysian Bar Secretary, George Varughese, pointed out, "The finding of misconduct is personal to Rohaizat, as the (Advocates and Solicitors) Disciplinary Board would not hold a lawyer liable for the actions of his/her law partner(s)."


Without considering all the facts in this disciplinary process – before a lawyer is found guilty – it was terribly wrong of the DPM to pass disparaging remarks on the Bar Council that could tarnish its image and damage its reputation. He has no right to accuse the Bar Council of having an agenda and siding with certain quarters. The Bar Council’s conduct in this instance has been beyond reproach and very ethical.


Let’s understand the process involved so that silly statements will not be passed out of sheer ignorance.

When a client is dissatisfied with the conduct of his lawyer, he can lodge a complaint of misconduct with the Disciplinary Board in writing accompanied by a Statutory Declaration that the contents of his letter are facts that are within his knowledge.


“Misconduct” means conduct or omission to act … in a professional capacity or otherwise which amounts to grave impropriety…

There are 15 instances listed as possible grounds of misconduct.

When the Disciplinary Board is of the view that there is merit in the complaint, it “determines that there should be a formal investigation.”


The Disciplinary Board then appoints a Disciplinary Committee – consisting of two advocates and solicitors and one lay person – which will then investigate the complaint. The Complainant and the Respondent are permitted to bring along their witnesses and counsel and both parties are provided with ample opportunity to state their case and defend their position.


At the end of the investigation, the Disciplinary Committee submits its report to the Disciplinary Board by recommending either “that no cause of sufficient gravity for disciplinary action exists” or that punishment such as a reprimand, a fine, a suspension or striking the advocate and solicitor concerned off the Roll be imposed. The nature of the punitive action depends on the gravity of the offence.


For the extreme punishment to be meted out, the lawyer must be guilty of the following one or all three incidences of misconduct:


(a) dishonest or fraudulent conduct in the discharge of his duties;

(b) gross disregard of his client’s interest; and/or,

(c) being guilty of any conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute.

In all probability, the above reasons must have contributed to the guilty verdict which resulted in Rohaizat being recommended to be struck off the Roll.

On receipt of the Disciplinary Committee’s report, the Disciplinary Board – consisting of 20 advocates and solicitors and 10 lay persons – deliberates on this.

According to Section 103D, “After consideration of the report of the Disciplinary Committee, the Disciplinary Board may make an order:

(a) affirming the recommendations of the Disciplinary Committee; and

(b) may either accept the recommendations of the Disciplinary Committee of the punishment to be imposed or, in exceptional cases, impose a greater punishment.”

The lawyer would then be notified of their decision and be given “a reasonable opportunity to be heard.”

We believe this procedure was strictly observed in Rohaizat’s case. He had his say and he was heard.

After this, Rohaizat had another avenue to take up his case. Under Section 103E, he had “the right to appeal to the High Court within one month of notification of the decision or order complained against.”

Rohaizat exercised this right and took his case to the High Court to have the decision of the Disciplinary Board overturned. On 12 August 2009 – five days before the nomination for the Permatang Pasir by-election on 17 August – Rohaizat’s appeal was dismissed by the High Court.
He had gone through the various processes to clear his name but on each occasion he was found guilty. It was not a haphazard procedure but one that was put in place to ensure that justice was done without fear or favour.


Now, he has one more opportunity to appeal to the Federal Court “within one month of the decision of the High Court.” But so far he has not said that he was going to avail himself of this opportunity.


From this, it is clear that Rohaizat was found guilty without any reservation and there is no legitimate ground for the DPM to insist that “he was convinced that Rohaizat was not guilty”.
By speaking without respecting the facts and unfairly accusing the Bar Council of having an agenda and siding certain quarters without any basis, the DPM is regrettably sullying his office.


P Ramakrishnan
President
23 August 2009

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