A good statement by Steven Thiru, a former Malaysian Bar President, now the President of the Commonwealth Lawyers Association(CLA), on the 'attack' on lawyers by State...
If a TRUMP like attack on lawyers happened in Malaysia by PM Anwar Ibrahim and the government, Malaysian lawyers without fear or favour would have come out in numbers exercising the right of peaceful assembly to protest such actions, and also other actions. When individual lawyers were prevented access to their clients, there were immediate protest by lawyers in front of the relevant police stations - as happened in cases like Cheah Kah Peng(2000 and 2001) and S. Balasubramaniam(2006). For the independence of the Judiciary, in 2007, some 2,000 Malaysian lawyers took to the streets in protest. The same happened in defence of the right to Peaceful Assembly(Walk for Freedom to Walk 2011), again for the repeal of Sedition Act(2014), and in the 17/6/2022 'Walk for Judicial Independence'. In the 2022 protest, it is good news that the police action to block this 2022 protest have been found wrong by the Courts on 'The High Court here has ruled that the Royal Malaysian Police (PDRM), namely then-Dang Wangi police chief senior assistant commissioner Noor Dellhan Yahaya, had acted beyond their powers in obstructing the Malaysian Bar Council’s assembly and march for judicial independence (Walk for Judicial Independence) in June 2022.' Edge,20/3/2025 , NST 20/3/2025
Malaysian
Lawyers are Human Rights Defenders - From statements and meetings to
2,000 lawyers taking part in Peaceful Assembly in upholding the cause of
justice.
Steven Thiru, however, failed to address the issue of Public Prosecutors or Prosecutors, and consider the UN Guidelines on the Role of Prosecutors where , amongst others, it states that 'States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.'
In Malaysia today, there is concern about our Public Prosecutor, who have discontinued criminal cases even after prosecution successfully proved a Prima Facie case, discontinued criminal cases because accused agrees to return 'fruits of his crime', have discontinued cases after commencement because the accused agreed to pay the compound offer (Odd because compounds are offered before completion of investigation and certainly not after the accused have been charged), withdrawal of criminal appeals, ... In Malaysia, the Public Prosecutor had a retirement age, security of tenure and could only be removed the same way as Judges where these was removed by way of a Constitutional Amendment in 1963 - See Joint Statement in PM Anwar Ibrahim - had 3 different Public Prosecutors/AG [A Malaysian Record?] - INDEPENDENCE of PP/AG, and preventing PM's ability to remove as he pleases? A PM also may commit crimes..
Besides lawyers and Judges, the INDEPENDENCE of Public Prosecutors are important in the administration of JUSTICE.
See also:-
Separation of Judicial & Legal Services Resolution (25/3/2000)
The Malaysian Bar Calls for Urgent Inquiry into the Alleged Interference with the Independence of the Judiciary
Speech by Chief Justice of Malaysia - a good read, and the Importance of strengthening the Independence of the Judiciary by the removal of the Prime Minister in the selection/elevation of Judges?
PN Sanusi's case - Opportunity now for Sanusi to commence legal action against Public Prosecutor for abuse of power of the Public Prosecutor? Is he BRAVE enough to do this for Public Interest?
Serving Judges Must Not Be Considered Or Appointed As Attorney General, To Also Preserve The Independence Of The Judiciary(MADPET)
PM Anwar Ibrahim - had 3 different Public Prosecutors/AG [A Malaysian Record?] - INDEPENDENCE of PP/AG, and preventing PM's ability to remove as he pleases? A PM also may commit crimes..
CLA News / “Without Fear or Favour: The Independence of the Legal Profession at Risk?” by CLA President Steven Thiru
No greater misfortune can befall the administration of justice than an infringement of the independence of the Bar or the failure of courage in our advocates. — Lord Brougham
The independence of the legal profession is indispensable for ensuring that lawyers are able to discharge their duties without fear of any forms of interference, just as the Judiciary must remain unfettered by any undue influence, in order to administer justice with unwavering impartiality.
A robust Bar and a resolute Judiciary are vital pillars for upholding the rule of law, serving as the cornerstone of every citizen’s fundamental right to justice. They are not merely institutions, but the very bedrock upon which the right to access justice is built and safeguarded.
In the absence of an independent Bar that is steadfast and tenacious in its defence of universal and inherent rights, freedoms would be reduced to little more than a fleeting mirage. The significance of an autonomous Bar must not — and cannot — be dismissed or underestimated.
In 2022, the Report of the Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, presented to the United Nations General Assembly and Human Rights Council, highlighted the “global increase in practices that undermine, limit, restrict and hinder the practice of law”, with lawyers being especially vulnerable when their work relates to “the fight against corruption, the defence of human rights, women’s rights, the protection of ethnic, racial, religious or national minorities, indigenous peoples, the LGBTQI+ community, the environment or other issues of public relevance”.
A subsequent report, presented by the current Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, in June 2024, further warned of a growing trend whereby “[i]n recent years, the role of independent justice systems in protecting participatory governance has come under attack from political actors”, in addition to the “existence of physical, legal and digital threats and harassment targeting lawyers . . . who are upholding democratic values and human rights”, as continuing pressing concerns.
Beyond facing abuse by physical means, lawyers, and even those close to them, have been subjected to intimidation, hindrance, harassment, interference with their work, and politically-motivated criminal prosecution. In today’s digital age, violations of their rights have also taken the form of cyber-intimidation, defamation campaigns, and unlawful surveillance.
The prevailing tendency — both of the Executive and in the public mind — to conflate lawyers with the causes they represent becomes even more pronounced when they advocate, in particular, for contentious or unpopular issues. This leads to stigmatisation and persecution, and lawyers may be confronted with disparaging or harmful comments and unfair labelling in the media, including social media networks. Some of these may be instigated by government officials themselves, or otherwise provoked by ideological groups or malcontent individuals, to stoke public hostility.
There is also a growing threat to lawyer-client confidentiality that is made possible by advanced surveillance technologies. Unlawful monitoring of clients’ consultations with their lawyers, use of surveillance software targeting lawyers, search and seizure, interrogation of lawyers as witnesses in their clients’ criminal cases, as well as the barring of access to critical information required for their clients’ defence, are becoming more commonplace.
Ongoing exposure to these intensifying violations — and the risks of such violations — has a compounding effect that creates a repressive atmosphere where lawyers operate under a pervasive fear of retaliation. This gravely undermines the universal right to legal representation, and erodes the independence of the legal profession.
It is very disquieting that these cracks are manifesting even within “First World” nations. In recent weeks, the Executive Orders of 25 February 2025, 6 March 2025 and 14 March 2025 issued by US President Donald Trump targeting three leading US law firms — all of which have represented individuals and causes Trump opposes — have raised alarm bells over the erosion of due process, diminishing of constitutional protections, and the chilling effect of government reprisal on independent legal representation. It is ominous that the second order directs, among others, investigation into “large, influential, or industry leading law firms”, specifically in relation to “racial discrimination”, demonstrating a broader campaign against diversity initiatives. The most recent order goes a step further, as federal agencies have been directed to terminate contracts that involve the targeted law firm. Since then, the US Equal Employment Opportunity Commission has warned 20 major law firms that their diversity, equity, and inclusion policies may be unlawful, and demanded detailed information on the demographics relating to their employment practices.
The American Bar Association (“ABA”) has denounced the escalating actions by the Trump administration aimed at undermining the courts and the legal profession. In its statement of 3 March 2025, the ABA firmly rejected the notion that “the government can punish lawyers who represent certain clients or punish judges who rule certain ways”, and stated unequivocally that “government actions that seek to tip the scales of justice in this manner” are unacceptable. Other US bar associations have voiced their opposition as well. On the international front, the CLA issued a statement on 14 March 2025 wholly supporting the ABA’s statement, and on 18 March 2025 the CLA stood with 17 other global law associations in censuring the Trump administration for its attacks on legal professionals. In its statement of 17 March 2025, the International Bar Association expressed “deep concern over the ongoing erosion of the rule of law in the United States”.
The CLA’s Mandate
Our mandate is to ensure that an independent and efficient legal profession serves the people of the Commonwealth. The CLA actively engages in efforts, including advocacy, to preserve and defend the independence of the Bar and the Judiciary.
Press statements have been issued by CLA condemning the brutal attacks resulting in the deaths of Mozambican lawyer, Bernardo Antonio Dias, who had represented a prominent opposition party politician; and human rights lawyer and pro-democracy activist, Thulani Maseko, of Eswatini, in 2024 and 2023, respectively. We have also protested, amongst others, against:
- the arrest and detainment of Tamieka Clarke of Guyana, following her advice to her client of his right to remain silent;
- the sanctions imposed against four barristers of England and Wales and their immediate families by the People’s Republic of China, relating to a legal opinion provided to their clients on legal issues arising from alleged human violations of the Uyghur population;
- the removal of John Sangwa’s right to practise law in Zambia, and the suspension of Fatma Karume following her submissions in relation to a constitutional challenge to the President’s appointment of the Attorney General of Tanzania, allegedly conducted without due process; and
- the removal of Beatrice Mtetwa’s right to represent her client, following the order by a Magistrate in Zimbabwe for her to stand down from representing the client.
It cannot be overstated that the defence of the legal profession’s independence does not fall solely on the shoulders of the individual lawyer under threat. Rather, it is a collective responsibility — one that must be wholeheartedly embraced by the entire legal community. The preservation of our profession’s autonomy is a shared duty, for its integrity and purpose are closely intertwined with the strength and unity of all who stand within its ranks.
International Norms
We must pay close heed to several international standards designed to protect lawyers and uphold legal independence. These include, amongst others:
- The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba, in 1990. These principles establish international standards to protect lawyers, their independence, and their ability to carry out their professional duties without fear of interference, harassment, or persecution;
- The Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa, established by the African Commission in 2003, address rights, procedures and safeguards during criminal proceedings, including providing guidance on protecting the lawyers’ ability to exercise their profession without interference, respecting client confidentiality, and providing access to information necessary to enable the provision of effective legal assistance;
- The Commonwealth (Latimer House) Principles on the Three Branches of Government, which were agreed and officially published in 2003, and subsequently recognised as “an integral part of the Commonwealth fundamental political values as set out in the Harare Declaration” at the Commonwealth Heads of Government meeting in in November 2005, affirm that an independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary; and
- The United Nations Human Rights Council adopted a Resolution on the Independence and Impartiality of the Judiciary, Jurors and Assessors, and the Independence of Lawyers in 2020, which, upon expressing deep concern “at the significant number of attacks against lawyers and instances of arbitrary or unlawful interference with or restrictions to the free practice of their profession”, called upon States “to ensure that any attacks or interference of any sort against lawyers are promptly, thoroughly and impartially investigated and that perpetrators are held accountable”.
In addition, professional bar associations have adopted similar principles, such as:
- the International Bar Association (“IBA”)’s IBA Standards for the Independence of the Legal Profession, adopted in 1990;
- the Union Internationale des Avocats (“UIA”)’s Turin Principles of Professional Conduct for the Legal Profession in the 21st Century, adopted in 2002;
- the Council of Bars & Law Societies of Europe (“CCBE”)’s Charter of Core principles of the European Legal Profession, adopted in 2006; and
- the CLA’s Bar Leaders Declaration on Preserving and Strengthening the Independence of the Judiciary and on Ensuring the Independence of the Legal Profession, adopted at the 23rd Commonwealth Law Conference held in Goa, India in 2023.
The Council of Europe Convention for the Protection of the Profession of Lawyer
The continuing occurrences of harassment, threats, imprisonments, surveillance, enforced disappearance and murders against lawyers prompted the Parliamentary Assembly of the Council of Europe to call, in 2018, upon the Committee of Ministers to draft and adopt a convention on the legal profession, based on the standards set out in the Council of Europe’s Recommendation R(2000)21 on the Freedom of Exercise of the Profession of Lawyer — thereby translating its provisions into a binding instrument, with an effective control mechanism.
The Council of Europe Convention for the Protection of the Profession of Lawyer, the first-ever international treaty aimed at protecting the profession of lawyer, was adopted by the Council of Europe on 12 March 2025. The Convention seeks to:
- strengthen the protection of lawyers and their right to practise freely and independently in order to make sure that everyone’s rights are protected;
- safeguard not only the rights and protection of individual lawyers but also those of professional associations (such as bar associations and law societies);
- guarantee the independence and self-governance of professional associations;
- uphold professional standards of conduct and facilitate access to the profession and ongoing education;
- ensure that professional associations are duly consulted in relation to regulatory and legislative changes pertaining to the exercise and regulation of the profession;
- ensure that admission to the profession, and disciplinary procedures and decisions, remain objective and fair;
- ensure that lawyers can provide, without improper interference, legal advice and representation, access clients (even those in detention) promptly and effectively, obtain necessary case materials from authorities, etc.;
- guarantee the right and duty of lawyers to both communicate confidentially with their clients and prospective clients, and to not disclose confidential information;
- guarantee that lawyers are not identified with their clients or their clients’ cause;
- reinforce lawyers’ and professional associations’ freedom of expression; and
- provide protective measures in situations where lawyers are deprived of their liberty or where they are the subject of a search and seizure.
Bar Leaders’ Summit at the 24th Commonwealth Law Conference in Malta
As we gaze towards the future, we must pause to reflect upon the critical issues that lie before us:
What measures can be implemented within the Commonwealth to fortify the protections afforded to lawyers? What insights can we glean from our counterparts around the world who are grappling with similar challenges? And, which practices or frameworks should we embrace as our mode?
These pivotal questions will be explored at the Bar Leaders Summit (6 April 2025) in the upcoming 24th Commonwealth Law Conference in Malta, where we aim to foster a consensus and devise effective strategies and suitable approaches, as well as at the plenary session on the third day of the Conference (9 April 2025).
Forceful international protections are crucial for individual lawyers as well as for the wider legal community as a whole. Such safeguards are not only imperative in jurisdictions where lawyers confront systemic threats and obstacles in their professional responsibilities, but also for advancing best practices that brace and elevate the legal profession throughout the Commonwealth. Enhancing these protections will empower local bar associations to defend their independence with unwavering resolve and greater resilience, ensuring that they are able to effectively safeguard human rights within their national legal systems — anchored in the strength of international principles and reinforced by the collective support of the international community.
We must push for concrete protections — fortifying legal frameworks, holding authorities accountable, and ensuring that no lawyer is left to face persecution in isolation.
We echo the firm stance taken by the ABA:
We reject efforts to undermine the courts and the profession. We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts and our legal profession.
We must be zealous in our commitment and efforts to safeguard and uphold these rights. As we do so, I am reminded that “[s]tanding between authority and subject is always uncomfortable, often dangerous[, but] that is what we are trained to do”.[1]
Steven Thiru
President
Commonwealth Lawyers Association
20th March 2025
Steven Thiru records his appreciation to Boo Sha-Lyn and Chin Oy Sim for their assistance in preparing this article for publication.
[1] Pheroze, Nowrojee (April, 2011). “No Respecters of Persons: Advocates in the Front Line”. The Commonwealth Lawyer. 20(1), 16–20.
The Kuala Lumpur High Court today ruled that the police had acted ultra vires (beyond powers) to impose a condition that prohibited the Malaysian Bar Council’s assembly and march in 2022.
The Walk for Judicial Independence was to protest the MACC’s announcement of an investigation into Court of Appeal judge Mohd Nazlan Mohd Ghazali, which was considered an interference with the judiciary’s independence and a violation of the basic principle of separation of powers.
Today, Judicial Commissioner Gan Techiong held that the Peaceful Assembly Act does not allow the then-Dang Wangi district police chief Noor Dellhan Yahaya as the first defendant, to stop or ban an assembly from being held.
“He (Noor Dellhan) can only impose conditions to ensure the participants’ safety and avoid nuisance to road users.
“The court hereby declares that the first defendant as the officer in charge of the Dang Wangi police district acted ultra vires on June 15, 2022, in imposing conditions under Section 15 of the Peaceful Assembly Act 2012 prohibiting a march to Parliament by the assembly to be organised by the plaintiff on June 17, 2022, and acted ultra vires on June 17, 2022, in prohibiting the march from taking place.
“Therefore, the court sets nominal damages of RM1, which the defendant must pay to the first plaintiff,” the judge said, adding that there was no order regarding costs because the case involved public interest.
The nominal damages of RM1 was proposed by the Malaysian Bar’s counsel New Sin Yew and agreed upon by senior federal counsel Mohammad Al-Saifi Hashim.
The Bar Council suit
On Oct 20, 2022, then-Bar Council president Karen Cheah Yee Lynn, current president Mohamad Ezri Abdul Wahab, vice-president B Anand Raj, and secretary Murshidah Mustafa, as the first to fifth plaintiffs, filed the suit through Messrs AmerBON at the Kuala Lumpur High Court.
In the suit, they named Noor Dellhan, Dang Wangi Criminal Investigations Department head Nuzulan Mohd Din, the Royal Malaysia Police, the inspector-general of police, the home minister, and the Malaysian government as the first to sixth defendants.
In the statement of claim, the plaintiffs claimed all the defendants violated their rights under the Peaceful Assembly Act 2012 by preventing them and their 500 members and interns from holding a rally and marching from the Padang Merbok parking lot to the main entrance of the Parliament on June 17, 2022, to submit a memorandum to then-prime minister Ismail Sabri Yaakob or his representative.
All the plaintiffs claimed the defendants committed misconduct in public office (misfeasance) by arresting them wrongly, causing them to lose their freedom, and damage their reputation due to wrongful arrest in addition to a loss of RM19,449 for the Bar Council for the cost incurred for the march.
The plaintiffs are demanding special damages amounting to RM19,449, general damages, and excessive and exemplary costs, in addition to seeking a declaration that the plaintiff’s rights have been violated and a declaration that their detention was illegal and wrong in law.
- Bernama, Malaysiakini, 20/3/2025
KUALA LUMPUR (March 20): The High Court here has ruled that the Royal Malaysian Police (PDRM), namely then-Dang Wangi police chief senior assistant commissioner Noor Dellhan Yahaya, had acted beyond their powers in obstructing the Malaysian Bar Council’s assembly and march for judicial independence (Walk for Judicial Independence) in June 2022.
In his decision on Thursday for the 2022 suit filed by the Bar Council, Judicial Commissioner Gan Techiong awarded the sum of RM1 in nominal damages to be paid to the Bar Council by Noor Dellhan, Dang Wangi’s current deputy chief superintendent Nuzulan Mohd Din, PDRM, the inspector general of police, the home minister and the Malaysian government, as the first to sixth defendants.
The sum was proposed by the Bar Council and agreed upon by the senior federal counsel. No order as to costs was made.
“I am grateful to counsels of both sides for agreeing that nominal damages of RM1 be awarded to the first plaintiff (The Malaysian Bar Council). The other prayers in the statement of claim are dismissed. Lastly, since this is a public interest case, and the plaintiffs have succeeded only in part, no costs shall be ordered,” he said.
In his broad grounds, which were read out in court on Thursday, Gan surmised that Noor Dellhan, as the officer who was in charge of the Dang Wangi Police district, had acted ultra vires (beyond his powers) in imposing conditions under Section 15 of the Peaceful Assembly Act 2012, by absolutely prohibiting an assembly to be organised by the Bar Council from marching to Parliament on June 17, 2022.
He said that Noor Dellhan also acted ultra vires in taking action to prevent the march, as street protests are allowed under new laws.
“Under Section 15 of the Peaceful Assembly Act 2012, the OCPD can impose conditions, but not a total prohibition that defeats the purpose of the amendments made to the [Peaceful Assembly] Act [by the amendment Act in 2019]. The amendments had, among others, deleted the prohibition against street protest. Street protest is to be allowed, subject to reasonable conditions imposed,” he said.
The judge said that the OCPD could have “imposed restrictions and conditions, instead of a total prohibition of the march”.
“As an example, the OCPD could have imposed a condition that the participants march in two rows on the public road to Parliament, or such other conditions that ensure the safety of the participants as well as to avoid any nuisance to the people with interest. The first defendant, as the OCPD of Dang Wangi, had therefore acted ultra vires (beyond his powers) in absolutely prohibiting the march,” the judicial commissioner said.
In his judgment, Gan had dismissed the Bar’s other claims in its statement of claim, as he surmised that other than not being able to march to Parliament, the objective of the march and assembly was met.
“Since the plaintiffs were allowed to hold the assembly on June 17, 2022, at the Padang Merbok Public Carpark, to deliver speeches there, and to deliver the memorandum to the representative of the prime minister at the said venue, the plaintiffs had in fact achieved almost the whole objective of the assembly on June 17, 2022,” Gan said.
The plaintiffs were demanding special damages amounting to RM19,449, as well as general damages, and excessive and exemplary costs, in addition to seeking a declaration that the plaintiffs’ rights had been violated and a declaration that their detention was illegal and wrong in law.
The plaintiffs’ names in the case were the Bar Council’s then-president Karen Cheah Yee Lynn, current president Mohamed Ezri Abdul Wahab, current vice-president B Anand Raj and current secretary Murshidah Mustafa.
After the judgment, Cheah in a statement said that she was “elated by the outcome” of the case.
“Clearly, the court accepts our position that the OCPD should not have prevented us from marching or exercising our constitutional right to assemble and march, back then,” she said.
“We viewed the OCPD's transgressions very strongly when the incident happened back then, and we are delighted that our views and beliefs all this while have been justified.”
Cheah added that the RM1 sum was asked for by the Bar Council, and nothing more, as the case was a “matter of principle”.
Bar Council vice-president Anand Raj said in a statement that while they have been vindicated, he expressed disappointment with other findings of the court, saying that the broad grounds of the judgment should be studied.
“The Bar is vindicated that the primary finding of the court was that the police had acted ultra vires and illegally, but we are disappointed with the other findings which do not appear to align with the primary finding. We should study the broad grounds once obtained; but an appeal against the other findings appears to be necessary and inevitable,” he said.
The defendants in the case were represented by senior federal counsels Mohammad Al-Saifi Hashim and Mohd Ashraf Abdul Hamid.
After proceedings, Al-Saifi told The Edge that he would seek instructions from the government on whether to pursue an appeal for the case. - Edge, 20/3/2025
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