Transparency, accountability and freedom of expression within the Malaysian Bar

Transparency, accountability and freedom of expression within the Malaysian Bar - role of e-groups and Bar newsletters


Contributed by Charles Hector
Monday, 30 October 2006, 22:30

Malaysian lawyers lost a forum for open free discussion with the demise of the Malaysian Lawyers yahoo group (an independent e-group), which apparently had over 3,000 lawyer-subscribers. With the discontinuation of this "yahoo-group" by its moderator/s, freedom of expression, opinion and viewpoints within the Malaysian Bar suffered a set-back, and today all we have is only far less-subscribed yahoo groups, like this Transformed Bar Yahoo Group (the first of the independent yahoo groups which commenced in March 2001)

Demise of the Malaysian Lawyers Yahoo Group

The Malaysian Lawyers Yahoo Group, with its large subscription, did play an important role in making the Malaysian Bar, i.e. Bar Council and the State Bar Committees, more transparent and accountable to its members. It provided a most needed forum for a lot of members to express their views and opinions freely and timely manner.

I believe that it did play a most important role in the development of awareness, constructive criticism and in saving the credibility of the Malaysian Bar when our very own Bar Council was publicly perceived as being in support of the Legal Profession Act amendment which contained even an ouster of judicial review provision. It contributed in getting 3,000 over members coming on a Friday afternoon for a General Meeting of the Malaysian Bar which showed that members were in almost total opposition to the public-stance taken by our elected Bar Council.

Thereafter, this yahoo group (or rather its main moderator) was attacked with allegations that there were "bogus members" - and finally the said Moderator apparently acknowledged that several "members of the said yahoo groups" were actually him using different names. He said that it was just "pseudonyms" that he used, and then decided to discontinue the Malaysian Lawyers Yahoo Group. What he did was wrong - especially since those "pseudonyms" he used were also active contributors to the discussion, and one even went further by claiming that he was some person no longer in practice.

Was there some other ‘agenda’ behind the “attack”?

BUT we need to look deeper into what had happened, and ask the question as to whether this "ATTACK" or "EXPOSE" was motivated by some other AGENDA? Was there an agenda to kill this "alternative independent forum"? - for after all it caused serious concerns about the suitability of the present members of the Bar Council. This is a possibility we must consider.

Adding credence to this possibility was the fact that the key personalities that led the attack were those who did openly, expressly or impliedly, support the Bar Council’s stance on the LPA amendments before the last EGM, and were also against the requisitionists for that EGM.

But then, maybe it had nothing to do with the Bar Council or the stance it took vis-à-vis the LPA amendments. Maybe, it was just because what happened in that yahoo group that saw one of the moderators “sanctioning” the style and manner of expression of some of these personalities, just before the “attack” of the moderator and that e-group began. Maybe, it was just tit for tat, or maybe it was just motivated by the principles of free speech, opinion and expression, and the question of transparency and accountability.

All these are the possibilities as to why the main moderator was attacked so ‘brutally” until it ended with the demise of the Malaysian Lawyers Yahoo Group. I wonder whether we would have got the quorum at the last EGM that saw 3,000 members attending if not for the Malaysian Lawyers Yahoo Group. This e-group did provide a very important forum for debate on the issues surrounding the LPA amendments fiasco.

The independent E-groups, KL Bar E-group and Bar Publications

Before the birth of these independent yahoo groups, the only available channel for members to express their views, other than the General Meetings, were the publications of the Malaysian Bar and the State Bar Committees.

Alas, these publications failed to play this role and many critical articles (especially those critical of the Bar Council and/or the State Bar Committees) never got published – “censored” for reasons like space constraints and Editorial policy and powers of determining what goes in and what stays out.

The newsletters contained mostly uncritical pieces – a lot of reporting of past events/achievements of the Bar Council/ State Bar Committees, and a lot of pictures where of course the then leaders of the Bar were portrayed most often just like our main stream media that gives the lion’s share of coverage to the executive and the Barisan National .

RELEVAN, the KL Bar Newsletter under the leadership of Ragunath Kesavan (as he then was) broke away from this trend of bland uncritical publications of the Bar and for a while there was a Bar newsletter that lawyers earnestly waited for – but after that under the leadership of Jerald Gomez and then Lim Chee Wee, we saw that Relevan slide back into the bland, less critical and “self-serving” publication it was before.

The KL Bar Committee also did start up a yahoo group for members and lawyers, but then after hoo-hah about the post retirement conduct of a former Chief Justice who joined a law firm almost immediately after he left office as a Consultant, the KL Bar Committee shut down their yahoo group. Apparently there were threats of legal action from certain quarters against the KL Bar Committee. The reasons given for the shut-down of that yahoo group at that time was because of maintenance and up-grading – but it never got revived again.

When will the Malaysian Bar E-Group become operational?

At the level of the Bar Council, there was a move to start up a Malaysian Bar E-group – and members were asked to subscribe to it BUT alas to date the Bar Council is yet to approve the activation of this yahoo group. Members today can still subscribe to this e-group, and all we can hope is that the Bar Council will soon give the green light to activate this e-group.

The forum at the Malaysian Bar website is not an e-group – and it requires members to actively go and log in to see the messages, as opposed to an e-group where e-mails postings will be send to all members at their e-mail address. We definitely need the Malaysian Bar e-Group to be activated now, more so since the recent demise of the Malaysian Lawyers Yahoo Group.

E-Groups: A means of continuous check and balance

The e-groups allow members to more effectively be a check and balance on the leaders of the Malaysian Bar, something this is something we really need. The argument that we should just wait for General Meetings is absurd and sometimes it is just too late to check an actions/omissions of the Bar leadership.

E-Groups: A means of advocacy

E-groups also allow members to raise and lobby new issues. It must not be forgotten that the whole issue of post-retirement conduct of judges was first highlighted in an e-group, and then the main-stream media picked it up, and the Bar Council came out with the stance that there must be at least a 3-year cooling off period after retirement before judges join law firms and/or companies as consultants or directors. The then “law” Minister also came out and spoke about the need to incorporate this into the Code of Conduct of Judges.

Print media still has a role

We have to acknowledge that not all members of the Bar are familiar with e-mails and/or the internet, and as such the publications of the Bar are still very important for the dissemination of differing views and new ideas to the over 12,000 members of the Malaysian Bar. This is one reason why it is still very important for articles published on the website of the Malaysian Bar to be also published in Praxis ,the Malaysian Bar newsletter, For example, there was a lot of differing views expressed over the recent LPA amendment in Bar website and forum posts, which I believe should be re-published in the Praxis – maybe even in a special edition of the Praxis.

It was sad that in the last issue of the Praxis, immediately after that General Meeting, none of these articles were published. In fact there were only 1-2 pages that told us about the fact of the General Meeting and the Resolution that was passed. A person who did not have access to the Malaysian Bar website or the independent e-groups will not have the benefit of appreciating the various arguments for and against the LPA amendments. I look forward to the coming issue of the Praxis and I hope that we will see some of these articles, both pro and against the amendments.

It is hoped that the Bar Council will not ‘censor’ these articles out – just because it was embarrassing for the present Bar Council when members overwhelmingly did not support its stance on the LPA amendments at that historical General Meeting.

Let it not be forgotten that these Bar newsletters are OUR newsletters, i.e. the members of the Malaysian Bar, and as such the leadership should not abuse their powers and only publish articles and reports that put the Bar Council in good light. The Bar leadership must be open enough to allow equal space to those that are critical of the Bar Council and those that are not. If this cannot be done, then maybe we may require a Resolution of the Malaysian Bar to ensure the independence of Bar publications. The Editors (and/or Editorial Board) of the Bar newsletters maybe should be chosen by the membership, and should also be accountable to the membership directly. The newsletters should never be used as a tool for the present leadership to promote themselves, their good works, etc – but should be a true means of communication between members and for members of the Bar.

The Malaysian Bar must be the perfect example of democracy

We have repeatedly called on the government and others to be transparent and accountable, to respect and provide avenues for the exercise of the freedom of speech, opinion and expression – and as such the Malaysian Bar must set the highest standards for all others to follow.

We do not want to be like our present Prime Minister, who rather than giving clear answers to the questions and/or criticisms being raised about certain actions/omissions of the government choose to try to divert the attention of the rakyat by changing it into a “clash of personalities”, getting the royalty and others to urge the critic to back off for the good of the country, choosing to expose failures of the governments under the immediate past premier or just ‘demonizing’ the critic.

The Bar Council and the State Bar leaders must respond to criticism correctly. To questions raised, give clear answers. To different opinions raised, consider it without looking at who the proponent of the opinion is. If flaws and mistakes are highlighted, apologize and make sure it is never repeated again.

Our leaders of the Bar must never forget that they are but mere representatives of the members, and as such they are duty bound to listen, consider and act upon the expressions views and sentiments of its members – be it 1, 100, 1,000 or 12,000.

Why were members kept in the dark that the Government was not holding back LPA Amendment Act 2006?

Vazeer Alam, our Bar Council office bearer, recently revealed in a Malaysian Bar website forum post “…I also personally spoke to the AG and Dato Nazri and enquired about delaying the coming into effect of the LPA Amendments. The answers from both of them were the same. The Royal Assent and Gazetting of the Act will take its course and come into effect in its ordinary course of events. They said that they would not hold back the Act….”

I am most perturbed that he and/or the Bar Council did not disclose this immediately to the members of the Malaysian Bar, and we had the means to do so through our Malaysian Bar Website, e-newsletters and even through a circular. I believe that members would have immediately reacted and protested this stance that the government had taken – more so after it was made crystal clear that an overwhelming majority of the members of the Bar are opposed to these draconian amendments, that go contrary to principles of natural justice and fairness. We would have collected signatures, send memorandum of protests and maybe even called for an EGM to show utter disapproval with the stance of Dato Nazri, AG Ghani Patail and the government.

Even when the LPA Amendment Act 2006 came into force, the Bar Council should have come out immediately and called for the repeal of the draconian provisions in the amended LPA – but they did not and I never even saw any media release on the subject. Why was that? Should that at least been done considering the sentiments expressed by the overwhelming majority of the membership present at the last General Meeting?

There are many Acts and Amending Acts that have been passed that are yet to be come into force like the National Anti Drugs Agency Act 2004 (Act 638), Skills Development Fund Act 2004 (Act 640), Subordinate Courts (Amendment) Act 2004 (Act A1228), Courts of Judicature (Amendment) Act 2004 (Act A1229), Islamic Family Law (Federal Territories) (Amendment) Act 2005 (Act A1261) and thus when the government continued to bring into force our LPA Amendment Act 2006, this was unacceptable conduct and behavior by the government more so since this act directly concerns lawyers.

If what Vazeer has disclosed is accurate, the AG and Nazri showed maximum disrespect to the Bar Council as well. This cannot be tolerated, and should not be tolerated by members of the Bar. Why then are we still wasting time with an ad-hoc committee, for after all all they said is that they will consider …just consider and knowing our Malaysian government, it most likely means that it will be there for a very long time. We have no option but to now call for the repeal of these new provisions in the LPA. The failure of the Bar Council to disclose to its members earlier must also be criticized. There should be no more keeping members in the dark.

Towards greater transparency and accountability

We do need to put in place more and more tools/mechanisms so that there can be a continuous check and balance of the Bar leadership. We need to have more channels of communication between members – so that there can a greater opportunity for discussion, debate and participation of members in the workings and positions that the Bar Council takes on behalf of its membership. We need the Malaysian Bar e-group activated. We need more independent e-groups. We need a more independent and fearless editors and editorial board for our publications. We need to have more consultations and meetings between members and the leadership of the Bar. We need to become more democratic – more transparent and more accountable – always remembering our duty to uphold the cause of justice without fear or favour.

Lastly, we need leaders of the Bar to be more open with members and no more keep us in the dark. We are the Malaysian Bar – and we do not sit down quietly hoping for wrongs to be corrected sometime in the future. In the face of injustice, we act without fear and favour. When there is a wrong done, we behave like lions and not lambs just waiting around in silence hoping that politicians and/or oppressors make good their promises and assurances to reform.