Section 46A(1)(a) of the Legal Profession Act, 1976 disqualifies an advocate and solicitor who has less than seven years at the Bar from sitting as a member of the Bar Council or a Bar Committee or of any committee of the Bar Council or a Bar Committee. Hence, the commonly known demarcation is borne out between a "not-young" lawyer (ie, one above seven years) and a "young" lawyer (ie, one below seven years).

This demarcation prohibits young lawyers from leading the Bar and effectively contributing to the Bar. This demarcation has placed the leadership of the Bar solely within the province of the not-young lawyers. This demarcation has led to insufficient representation of the interests of young lawyers at the Bar. This demarcation has placed the interests and needs of young lawyers (which make up about 75% of the Bar) in the hands of solely the not-young lawyers (which make up about 25% of the Bar). This demarcation at best is unequal.

The term "young lawyer" created by the fiction of the said demarcation in Section 46A(1)(a) of the Legal Profession Act, 1976 is made up of the words "young" and "lawyer". Let us analyse these terms.

"Lawyer". We all know who lawyers are, what they stand for, what they do and what ought they do. The Malaysian Bar has been entrusted under Section 42 of the Legal Profession Act, 1976 not only to uphold the cause of justice without regard to its own interests uninfluenced by fear or favour; but also to express its view on matters affecting legislation and the administration and practice of law in Malaysia as well as to protect and assist the public in all matters touching ancillary or incidental to the law.

In other words, the call of duty of a lawyer extends further and beyond the duty to his client. It is also a duty to the public at large. A lawyer must in its duties discharge all functions and capabilities in protecting, promoting the public good and the public's interest.

Principled positions

Public interest issues are so interwoven with the practice of the law and vice versa that it is inevitable when both meet. That is when the Malaysian Bar has to often take principled positions on issues to in effect lead public opinion.

"Young". The Shorter Oxford English Dictionary defines the word as "That has lived a relatively short time; that is at an early stage of life or growth; not yet old, not far advanced in life."

To be young is to have youth. I think these days, we have forgotten what "youth" stands for. The word by itself brings forth to one's mind springing of vibrancy, energy, inconquerable spirit and experience - as Salbiah Ahmad has aptly put it, "differently experienced".

The Shorter Oxford English Dictionary defines "youth" as "The fact or state of being young; youngnessyouthful freshness, vigour, appearanceNovelty, recentness."

Benjamin Disraeli once said, "Almost everything that is great has been done by youth."

That was the reason precisely why the government passed Section 46A of the Legal Profession Act, 1976. They were gripped with fear. The fear was that the young lawyers of the Malaysian Bar would do great things. They feared that if the young lawyers led the Bar, the government would be overwhelmed. They felt that by enacting the section, they could quell the great things of the youth.

Of course they did not say it that way. When speaking in favour of the bill on 9 January 1978, Minister for Law then Hamzah Abu Samah said this, "Tuan Yang di-Pertua, tujuan Fasal 3 dalam Rang Undang-undang itu ialah bagaimana saya terangkan dari awal ucapan saya tadi ialah, supaya Ahli-ahli Bar Council atau Bar Committee mestilah terdiri daripada peguam-peguam yang difikirkan cukup pengalaman dan matang dan ada perasaan tanggungjawab. Adalah difikirkan pengalaman 7 tahun mencukupi." That was the heart of the reason he gave for the amendments.

The then Kepong MP, the late Dr Tan Chee Khoon, speaking against the bill said, "Tuan Yang di-Pertua, saya sendiri berasa kesal di dalam politik di Malaysia, mula-mulanya Kerajaan Perikatan dan kemudiannya Kerajaan Barisan Nasional sentiasa menggunakan sledge-hammer untuk membunuh seekor lalat. Ini saya sendiri berasa kesal. Nampaknya sikap "over kill" adalah digunakan oleh Kerajaan Perikatan mula-mulanya dan sekarang Kerajaan Barisan Nasional. Kedua-dua Kerajaan ini sentiasa over-react pada sesuatu situasi yang timbul di tanah air kita. Ini telah berlaku di antara Kerajaan dan Ahli-ahli Malaysian Bar."

Muzzling young lawyers

I was recently given this sticker by an anonymous person which read, "When the government fears the people you have freedom, when the people fear the government, you have slavery."

The government feared the young lawyers - they feared the freedom the young lawyers had. They thought the Malaysian Bar was run mainly by young lawyers. They then put in amendments to muzzle the young lawyers. It has not worked.

The Malaysian Bar has been as vocal as ever - fearlessly fighting and campaigning for constitutional freedoms, promoting the better administration of justice, speaking out on public interest issues even when those views clashed with the views of the establishment and struggling human rights causes.

The great lengths the Malaysian Bar has gone to uphold justice without fear or favour cannot be questioned. It could be said that before Suhakam was formed, the Malaysian Bar was the human rights organisation in Malaysia. That statement can still be repeated now.

The Malaysian Bar now is even seeking justice for judges. On 4 October 2003, the Malaysian Bar will hold an extraordinary general meeting to discuss the promotion and appointments of judges. The Malaysian Bar was injuncted once when it attempted to discuss a former Chief Justice's conduct with an advocate and solicitor but it has not and will not be deterred.

And so, 25 years on the amendments, it has been proved that the government was wrong to enact the amendments. Their purpose in putting in the amendments to muzzle the Malaysian Bar has not succeeded. To succeed now, maybe, they should try disqualifying only members above seven years from sitting on the Bar Council or a Bar Committee or of any committee of the Bar Council or a Bar Committee.

The young lawyers are the way forward. There can be no two ways about it. The young lawyers represent 75% of the Bar and have the energy, idealism and time to further the causes of the Malaysian Bar and the public good.

Polarisation

It must be stressed that I am not in any way against the not- young lawyers and as I understand this roadshow to be, it is not meant as an attack on the not-young lawyers. I agree that polarisation of the Bar is unhealthy and I am against it. But this polarisation has happened and it was not the fault of the young lawyers or the fault of the not-young lawyers. It was due entirely to the demarcation which I have set out above owing to the amendments by the government.

I appeal to the not-young lawyers to see the two major principles behind this cause:

1. The not-young lawyers representing 25% of the Bar is now making decisions for the entire Bar. This does not properly take into account or sufficiently represent the interests of the young lawyers making up 75% of the Bar. This is not equality before the law.

2. The disqualification of 75% of the Bar from being elected infringes the rule of law and democratic principles. All members of the Bar must be allowed to freely and fairly choose, within their own profession, who is to administer and decide on their own affairs. It is not for the State to say who.

Some have said that the formation of the Bar Council's National Young Lawyers' Committee is sufficient to take care of the interests of the young lawyers. I say that the committee should not have been set-up in the first place.

It was and is a poor excuse for the unfairness of Section 46A of the Legal Profession Act, 1976. It was and is a poor excuse to shut up opponents of Section 46A of the Legal Profession Act, 1976. It should be abolished. Let us be real, how can you have a committee set up for the young lawyers but headed by a not-young lawyer with other committee members only entitled to vote if they were not-young lawyers.

Free choice

Some have said that Umno politicians may come in and run the Bar for their own interests. I say then so be it if that is what the Bar wants. What is wrong with Umno politicians anyway unless they propound unfair, illegal and unconstitutional theories and practices? We cannot treat members of the Malaysian Bar like children or immature brats. Choice of who the Malaysian Bar wants to be elected should be a free choice given to all.

I remember some years ago there was a certain law firm which for the first time had a good number of candidates standing for election as members of the Bar Council. I was asked and many people were wondering who these candidates were, what they stood for and why suddenly such an attempted influx. I did not know why too.

Some were suspicious of their motives. Some were all for them. Some were neutral. Some were against them. But at the elections, whether rightly or wrongly, the Malaysian Bar chose and it appears, chose correctly. This is the freedom and respect that we should give to all members of the Malaysian Bar - the respect that they will choose accordingly; and not to willy-nilly disqualify groups of persons from standing at the outset.

I know that there are not-young lawyers in the Malaysian Bar who are for affirming Section 46A of the Legal Profession Act, 1976. My reply would be this.

The not-young lawyers were also once young, full of youth. I respectfully find that those who support Section 46A of the Legal Profession Act, 1976 have become too comfortable and now, do not like the "boat" they are on to be "rocked" by young lawyers.

Walt Disney once said, "Too many people grow up. That's the real trouble with the world, too many people grow up. They forget. They don't remember what it's like to be 12 years old. They patronize, they treat children as inferiors."

Remember, the 1978 and 2002 resolutions show and bind the Malaysian Bar that the Bar then was strongly opposed and is still opposed to Section 46A of the Legal Profession Act, 1976. It was clearly the views of the Malaysian Bar that the said section was a muzzle on the Bar.

Law pervades life

Therefore, it was only then when a muzzle on a puppy was placed and only then when that puppy did not agree with the muzzle. The puppy now grows to be a dog and with that same muzzle on, supports muzzling other puppies. Let us not lose sight of what Section 46A of the Legal Profession Act, 1976 was originally all about. Let us not grow institutionalised.

We love institutions. We love to be institutionalised and compartmentalised. Below seven years, young lawyers - out. Politicians - out. Trade unions - out.

What we do not realise is that law pervades life. All these so-called "institutions" are but a part and parcel of life. We are human beings first then lawyers.

Let us reach higher. Let us not be too comfortable. Let us not be institutionalised. Rather, let us aim higher. Let us increase the experiments in living. Experiments in living are best advanced by the youth. Let us not muzzle ourselves.

If I may quote one F W Robertson, "Whoever is satisfied with what he does, has reached his culminating point - he will progress no more. Man's destiny is to be not dissatisfied, but forever unsatisfied."

Let us not give what the government-muzzler wants. Let us not be divided. Division and polarisation of the Bar is what the opponents of the Bar want to happen. Let us come together and fight the good fight.

It is quite clear what the young lawyers want. At the Bar Council's 1st National Young Lawyers' Convention in Cherating, Kuantan, a new call was made for the repeal of Section 46A of the Legal Profession Act, 1976.

On 6 April 2003, an extremely strong statement was made calling for the repeal of the same. The extent the statement went, at resolution no. 5, was to call on the Bar Council to ignore Section 46A of the Legal Profession Act, 1976 and appoint lawyers below seven years standing as council or committee members.

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 the said resolution although it agrees with the rest of the statement.

I urge the Bar Council to follow the resolutions in the said statement.

All the young lawyers want is a level-playing field. Who is to say the not-young lawyers are better or more qualified then young lawyers to lead the Bar? It certainly must be the members of the Bar themselves, not the government.

Martin Luther King Jr said, "Cowardice asks the question: is it safe? Expediency asks the question: is it politic? Vanity asks the question: is it popular? But conscience asks the question: is it right? And there comes a time when one must take a position that is neither safe, nor politic, nor popular - but one must take it simply because it is right."

EDMUND BON is an a young advocate and solicitor.