Thursday, August 11, 2016

MALAYSIAN LAWYERS' STRUGGLE FOR JUSTICE ongoing for decades - when young lawyers were feared?

* Many, even lawyers, may have forgotten that the Malaysian Bar has been dutifully struggling to uphold the cause of justice for a long time, and unfortunately the Malaysian government is and has not been  too happy about this, and has always sought to weaken the Bar...

At one time, the Malaysian government believed that it was young lawyers that were the problem - and so, the Legal Profession Act was amended that had the effect of disallowing young lawyers (i.e. those with less than 7 years standing in the Bar) from being '... a member of the Bar Council or a Bar Committee, or of any committee of the Bar Council or a Bar Committee...' 

And section 46A came into being Legal Profession (Amendment) Bill 1977 was passed and came into force. 

The struggle by young lawyers to be treated as equals was sadly also resisted by some of the senior lawyers...but finally was supported by the Malaysian Bar - and we asked the government, and the government sadly did not remove the entire section 46A - but deleted the section 46A(1)(a) vide Legal Profession(Amendment) Act 2006, which came into force in October that year.

Now, Malaysian government is at it again - trying to 'weaken' the Bar...trying to interfere with the independence of the Bar....and also trying to re-introduce 2 classes of lawyers - 10 years and below, and the rest. We have fought any form of discrimination ...and we will not go back..

Was sad though with a Bar Council flyer on the reasons why it opposes elections of office bearers during the AGM - 'Direct election could lead to the election of persons who have had little or no experience in the BC' - I certainly do not agree with such sentiments - it sounds like Steven Thiru and Bar Council may still be influenced with the 'old thinking' ...of  'need years of standing...' or certain years of being in BC' before one can be qualified to be elected as office bearers...  Why we do not agree to the government proposal is simple - we, the Malaysian Bar, will decide how we choose our leaders and run our 'association' - so we reject ALL proposals...we reject the MANNER used by the government to force changes on us...

What about direct elections - well, that will be something that members of the Bar may consider or not - we are open to changes for the better - but we decide...'nothing is set in stone' save our commitment to uphold the cause of justice without fear or favour...

Well, here is something from the past...something I wrote in my website(which mysteriously was hacked, blocked and I was shut out..)




1. When the government introduced the Essential (Security Cases) Regulations 1975 or ESCAR to amend the law for trial of "security offences", particularly in respect of the basic rules of evidence. As an example, ESCAR allows for excluding of both the accused and counsel from the court room when evidence is taken from a witness. ESCAR allows for a witness to give testimony hiding his face and even his voice from the accused and/or his counsel.

2. In October 1977, in response to the government introducing the Essential (Security Cases) Regulations 1975 ("ESCAR"), the Malaysian Bar passed a resolution at an Extraordinary General Meeting criticising ESCAR as laws that " were manifestly unfair and unjust as to offend the conscience of all good men" and also advised its members not to appear for accused tried under the laws in protest of the same on the premise that an accused under ESCAR would be denied a fair trial notwithstanding provision for presence of counsel.

3. The government in response to the criticism of the Bar, introduced the Legal Profession (Amendment) Bill 1977 which allowed the Attorney-General to admit foreign lawyers, increased the quorum requirements of general meetings of the Bar to 1/5 of its membership and automatically disqualified certain classes of lawyers from holding office in the Bar Council, the State Bar Committees and their sub-committees.

4. The Bar Council after attempting and failing to dissuade the government from passing the Bill, in discussions held with the government and the then attorney-general, issued a press statement objecting to the amendments.

5. The amendments proposed by the bill came into force in early 1978. In response to the Legal Profession (Amendment) Act, at the Annual General Meeting of the Malaysian Bar in February, 1978 the Malaysian Bar passed a resolution expressing regret at the government's insistence in passing the Legal Profession (Amendment) Bill 1977 , "without making proper enquiries as to its allegation that the bar is being influenced by practitioners of less than seven years' standing or who are politically motivated" , "with the clear and wholly unworthy intention of muzzling the Malaysian Bar". The amendments were opposed, inter alia, on grounds that they imposed restrictions on the Bar to choose its own leaders and impeded the independence of the Bar.

6. By virtue of the passing of the Legal Profession (Amendment) Bill 1977, section 46A of the Legal Profession Act came into being disqualifying the following lawyers from holding office in the Bar Council, State Bar Committees and/or Committees of these :-
    (i). Persons who are less than 7 years standing in the Bar;
    (ii). Members of Parliament or State legislatures;
    (iii). Persons who hold office in any trade union, political party or any organisation which has objectives or carries on activities which can be construed as political or declared so by the Attorney-General.
7. The Malaysian Bar retaliated and at its 32nd Annual General Meeting on 3 February 1978 passed a resolution criticizing section 46A ("1978 Resolution").

8. At the end of 1978, ESCAR was declared ultra vires by the Privy Council. It was resurrected subsequently as an Act of Parliament.

9. In a stronger resolution passed on 23 March 2002, the Malaysian Bar affirmed the 1978 Resolution and directing the Bar Council to immediately take steps to call for and campaign for the repeal of sections 46A and other amendments introduced by the Legal Profession (Amendment) Bill, 1977 which affects the independence of the Bar and hinder the ability of the Bar to govern itself.

10. By virtue of section 46A, the Malaysian Bar lost some its independence especially when it came to the choosing of its leaders. By keeping out young lawyers from the leadership of the Malaysian Bar, the government hoped to silence the Malaysian Bar and suppress its purpose of upholding the cause of justice without fear or favour. Section 46A, which excluded "young lawyers" from the leadership of the Malaysian Bar, indirectly branded senior lawyers as being "less progressive", "less radical" and as being persons less likely to take up the cause of justice without fear or favour.

11. But alas young lawyers, although not able to be in the Bar Council, State Bar Committees and/or its various committees have over the years still continued to stand up for the cause of justice without fear or favour. The more recent examples are:-

    a. In 1998 100s of young lawyers came forward to assist and represent the hundreds of Malaysians arrested when they exercised their freedom of expression and opinion through peaceful assemblies in the streets of Kuala Lumpur and Selangor. The lawyers were there at the Police Stations and the Police Training Centre(PULAPOL) where 100s ofd those arrested were taken. The young lawyers also during this represented these persons in over 600 remand hearings, some of which lasted long in the wee mornings, one in Pulapol lasted until about 3.00am the following day. These young lawyers also did come out and represent these persons in some of largest trials in Malaysia where in one case it involved over 200 accused persons in a joint trial. These trials of course were overshadowed by the more publicised Anwar Ibrahim trials then,

    b. In 1999 about 100 over lawyers marched to Federal Court building in solidarity and support for a senior lawyer who was being cited for contempt for actions done as lawyer representing his client in court.

    c. When a young Chinese lawyer was harassed by the police in Petaling Jaya, it was again the young lawyers that initiated a signature campaign and handed a memorandum of protest to the Officer in charge of the Police District of Petaling Jaya.

    d. When hundred's of persons with Indonesian accent were arrested in connection with a killing of a police officer in Johor, again it was a team of young lawyers who rushed down to offer their free legal service

    e. On 17th August 2001, a majority of the members of the then Bar Council decided to oppose an application by a lawyer, Sivarasa Rasiah (an elected member of the Bar Council and Vice-President of Parti Rakyat Malaysia), for declarations that the disqualifications introduced by section 46A of the Legal Profession Act are not valid on the basis that, inter alia, they violate freedom of association provided by Article 10 of the Federal Constitution. On 13th September 2001, 75 lawyers, most of whom were young lawyers, requisitioned for a General Meeting of the Malaysian Bar.
12. Over the past 7 over years, young lawyers have been fighting for greater recognition and greater participation in the decision making processes of the Malaysian Bar at all levels. This brought about the setting up of Young Lawyers Committees, first at the Kuala Lumpur Bar, and then through a resolution at the level of the Bar Council. The Bar Council, still "fearful" of the consequences of violating the law formed the National Young Lawyers Committee but it was headed by a senior lawyer and the committee was officially comprised of members who were senior lawyers. Young lawyers were represented by the reps from all the State Bars but only sat in as mere observers.

13. At the Bar Council's 1st National Young Lawyers' Convention in Cherating, Kuantan, on 6th April 2003, a call was again made by the 200 young lawyers who attended the convention for the repeal of section 46A. These Young Lawyers also called on the Malaysian Bar, the Bar Council and all State Bar Committees to disregard the restrictions of the section 46A and to admit young lawyers into the committees of the Malaysian Bar and the State Bars. This call was made on the basis that unjust or unfair, arbitrary laws should not be obeyed or followed. In other words, "civil disobedience". Sadly, the Bar Council does not endorse that part of the resolution that called for the ignoring of section 46A and the admittance of young lawyers into the Bar Council and its committees.

14. On 5th September 2003, the Young Lawyers are launching a nationwide campaign for the "REPEAL SECTION 46A LEGAL PROFESSION ACT, 1976"

"The erosion of fundamental rights and liberties, the manipulation of the media and the blatant undermining of the institutions of state entrusted with the task of upholding the rule of law and ensuring justice and fair play should not go unchallenged! We must refuse to be intimidated. In times like this Malaysians should stand up and be counted.
- Society For Christian Reflection

A patriot must always be ready to defend his country against his government.
Edward Abbey



Now the time to act has come"

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