The Attorney-General’s Chambers (AGC) on Friday (23 October) filed a complaint to the Law Society against lawyer Ravi Madasamy for his comments on his client Gobi Avedian’s death row case, following the Court of Appeal’s decision to set aside the Malaysian prisoner’s capital sentence.
Deputy Attorney-General Hri Kumar Nair wrote to Mr Ravi on Friday, stating that the AGC has referred the matter to the Law Society after Mr Ravi rejected their demand for a written apology and a retraction of his “false and misleading allegations” against the Public Prosecutor in Mr Gobi’s case.
Mr Hri also noted that the AGC denies the assertions made by Mr Ravi in his letter reply dated 22 October.
The AGC will also not comply with Mr Ravi’s demand for a public apology from the prosecution on behalf of Mr Gobi and his family, as well as any other demand put forth by the lawyer in relation to the matter.
Mr Ravi in a statement to TOC on Friday branded the move as an abuse of process “as a complaint to the Law Society” against a lawyer “will land up in a Disciplinary Tribunal [hearing]”.
This is because the Chief Justice has no discretion in deciding whether to convene a disciplinary tribunal in such cases — rather, he is mandated by Parliament to do so, he elaborated.
On the contrary, the Chief Justice has discretion on whether to allow a complaint against the A-G or public prosecutors to be investigated by a disciplinary tribunal, such as in former domestic worker Parti Liyani’s case.
“When a complaint is made against a lawyer, the A-G enjoys special status where the CJ has no power to say no,” said Mr Ravi.
Mr Ravi stressed that using the process in such a way is “unconstitutional” and a violation of his “right to equality”.
Consequently, the lawyer disclosed that he will begin proceedings against the A-G and the Law Society “to challenge this unequal position” between a complaint made by the A-G against a lawyer versus that made by a lawyer against the A-G and public prosecutors.
“The Law Society has a statutory duty under the LPA [Legal Profession Act] to protect the interest of lawyers and the independence of the Bar.
“As I mentioned, I will take the Law Society and A-G to court on this [matter],” Mr Ravi reiterated.
Entitled to make professional views known as Gobi Avedian’s counsel; human rights lawyers “do this all the time” especially in cases involving death sentence: M Ravi
Mr Ravi on Monday earlier condemned Mr Hri’s previous letter to him, in which the Deputy A-G demanded Mr Ravi to apologise “and unconditionally retract all of the allegations” in writing.
Failure to do so, he wrote, will result in the AGC filing “the necessary complaint” against Mr Ravi, which Mr Ravi posited refers to a complaint to The Law Society.
Mr Ravi said that Mr Hri’s statement was “a bold threat”.
Such a “threat”, he said, is akin to “humiliating Gobi and his family by insulting them further to threaten their counsel to apologise when these government lawyers who handled Gobi’s case are the wrongdoers”.
Mr Ravi also warned that he will also begin proceedings against the Law Society should it purportedly fail to do its part to “protect lawyers and the independence of the profession” and instead proceed to entertain “any further complaints” or forms of alleged “harassment” by the A-G against him in carrying out his duties as an advocate and solicitor.
Touching on his decision to stand by his comments on Mr Gobi’s case, Mr Ravi said that as the inmate’s counsel, he is entitled to make his professional views known, particularly “when a death sentence has been set aside” on the grounds of miscarriage of justice.
The “unfairness in the prosecution of Gobi as to why prosecution ran a different case at trial and appeal as observed by the court” is among reasons why he spoke up on the issue, he said.
The next day, Mr Ravi disclosed that he has “already taken instructions” from Mr Gobi and his family to commence court proceedings against Deputy A-G Hri, as well as against A-G Lucien Wong and Deputy Chief Prosecutor Mohamed Faizal Abdul Kadir.
Mr Ravi said that he will be filing the writ of summons in the next few days for both his client and his client’s family “personally against all 3 of the above Government lawyers and also against their offices in which they hold public appointment”.
“They have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and scrutiny of their conduct of Gobi’s case,” he stressed.
Background of Gobi Avedian’s case
Mr Gobi was previously sentenced to death for drug trafficking by the Court of Appeal after the court overturned the decision of the High Court to acquit him of the capital charge and convict him on a lesser charge trafficking in a “Class C” controlled drug.
On appeal, Mr Gobi’s acquittal was reversed and the Court of Appeal convicted him as charged, sentencing him to death as he did not fulfil the requirements for alternative sentencing in October 2018.
His clemency petition to President Halimah Yacob was rejected in July last year.
Subsequently, Mr Gobi’s case was taken over by Mr Ravi who proceeded to file an application to reopen the case.
He relied on two new legal arguments–which included the Court of Appeal’s pronouncement in Adili Chibuike Ejike v Public Prosecutor last year–to argue that the Court of Appeal had erred in departing from established precedents and had wrongly presumed that Mr Gobi was wilfully blind as to the nature of the drugs.
Deputy Chief Prosecutor and Senior Counsel Mohamed Faizal, who led the prosecution during the appeal and review hearing, argued that Mr Gobi’s application was an abuse of process.
The Court of Appeal, in setting aside Mr Gobi’s capital charge on 19 October, observed that “there are legal arguments based on the changes in the law that arose” from its decision in Adili on which it “may conclude that there has been a miscarriage of justice” in Mr Gobi’s initial appeal process.
Referencing Section 394J of the Criminal Procedure Code (CPC), the judges said that there is a “powerful possibility” that its decision in Mr Gobi’s initial appeal is “demonstrably wrong” in the light of the said legal arguments which were not available at the time but are present now.
In the Court of Appeal judgement on Monday, it was noted that while the prosecution’s case against him during the trial was about wilful blindness, it is “undisputed” that the Prosecution’s case on his initial appeal was that of actual knowledge.
Referencing its decision in Zainal bin Hamad v Public Prosecutor and another appeal — where the Prosecution similarly ran a different case on appeal than the trial — the Court of Appeal reasoned that it is crucial for the prosecution to run “a consistent case so as to ‘give the accused a fair chance of knowing the case that is advanced against him and what evidence he has adduced (and what standard of proof) in order to meet the case’”.
“We also made similar observations in our recent decision in Public Prosecutor v Wee Teong Boo and other appeal and another matter, where we held that the Prosecution is not permitted to seek a conviction on a factual premise which it has never advanced, and which it has in fact denied in its case against the accused person,” the judgement read.
Contrary to Zainal, however, the Court of Appeal judges reasoned that in the immediate case, the prosecution’s change in the case that it ran on appeal compared to the one it ran at trial had prejudiced Mr Gobi.
The judges noted that Mr Gobi’s conviction of the capital charge would only remain safe if the prosecution had proved beyond reasonable doubt that he was wilfully blind to the nature of the drugs, which they did not.
The judges ruled that Mr Gobi’s conviction on the capital charge is set aside.
“We are also satisfied that the Applicant’s conviction on the amended charge by the [High Court] Judge is sound and accordingly reinstate that conviction,” they said.
As such, the Court of Appeal reinstated the sentence of 15-years’ imprisonment and 10 strokes of the cane which was imposed in respect of the earlier amended charge. The court also backdated the sentence to the date of Mr Gobi’s remand.