Tuesday, May 15, 2012
Reactionary attack on independence of the Bar is fundamentally flawed
The Malaysian Bar is flabbergasted at Minister in the Prime Minister’s Department Dato’ Seri Mohamed Nazri Abdul Aziz’s reported announcement that a proposed law academy “can be an alternative” to the Bar, and that the Bar Council “should dissolve itself”.
The Malaysian Bar is opposed to this suggestion, which appears similar to the proposal that the Government had mooted, and subsequently withdrawn, twice in the past. Regrettably, this third occurrence appears to have come about purely as a reaction to the Bar’s strong message, contained in the Bar’s final report on the BERSIH 3.0 public assembly on 28 April 2012 (“Bar’s final report”) and the resolution adopted at the Bar’s Extraordinary General Meeting (“EGM”) on 11 May 2012 (“EGM resolution”), of grave concern and condemnation of the use of excessive force by the police during the public assembly.
The announcement lends itself to the perception that the proposal is revived from time to time when the Government feels threatened by an independent Bar that does not countenance the abuse of power by the institutions of the state (the police, in this case), and speaks up in defence of the public at large. The Bar, in doing so, is fulfilling its duty under section 42(1)(a) of the Legal Profession Act 1976 (“LPA”), namely, “to uphold the cause of justice . . . uninfluenced by fear and favour”.
The Malaysian Bar welcomes any move to encourage legal excellence, promote high academic standards and encourage social interaction and discourse by all those interested in the law. However, under the LPA, only the Bar Council is empowered to set standards for the legal profession, issue Practising Certificates, and regulate Members of the Bar. The creation of any “alternative” institution empowered to control the conduct of the legal profession, would usurp the functions and powers of the Bar Council under the LPA and ignore its powers and duty to regulate its own affairs, and would be an intolerable assault on the independence of the Malaysian Bar.
If any Member of the Bar wishes to set up an association of lawyers, that Member is entitled to do so, as our Federal Constitution guarantees the right to freedom of association. Such initiatives have resulted in the founding of, for example, the Malaysian Muslim Lawyers Association, Catholic Lawyers Society, and Association of Women Lawyers.
The 36 members of the Bar Council are elected — not appointed — as leaders by Members of the Bar annually, in a transparent process. If there is any dissatisfaction about the leadership of the Bar, Members can propose motions of no confidence against the Council members, as they have done, unsuccessfully, in the past.
The test of a mature and democratic society is the manner in which it treats the weakest amongst it. On 28 April 2012, when the mighty weight of the police was unleashed without restraint onto the streets of Kuala Lumpur, many innocent participants were undeservedly harmed. This is in contrast to the restraint exercised by the police in Ipoh, Johor Bahru, Kuantan and Malacca. The Malaysian Bar will continue to speak out and seek justice for the affected participants, and to require transparency and accountability from our law enforcement agencies, which continue to commit the same transgressions already highlighted in four previous SUHAKAM public inquiries.
The Malaysian Bar urges the Government not to attack the messenger, but to act on the message contained in the Bar’s final report and the EGM resolution instead.
Lim Chee Wee
15 May 2012