The Bar has the right to speak out

Gerard Lourdesamy

Modified 29 Jan 2008, 10:21 am

As a practising lawyer, I am shocked and appalled by the misguided and misconceived notions emanating from people like Joseph R , Rohana Ariffin and Chriss F with regard to the impending EGM called by the Bar Council to discuss the recent appointment and promotion of judges to the Court of Appeal and the Federal Court.

Their tirade against the Bar Council and its members merely raises questions as to their real motives in venting such anger at the council and the Bar in general.

If they have a bone to pick with the Bar, they should raise it at the impending EGM or if they feel strongly about it, file an application to the High Court to restrain the Bar yet again.

I am certain that the majority of members of the Bar would be more than willing to stomach yet another fight in defence of the independence of the Bar and more importantly, the fundamental right to free speech as guaranteed by the Federal Constitution.

With regard to the so-called landmark decision of the Court of Appeal in the case of Raja Segaran that the writers alluded to with much pride, the principle before that court was whether the Bar had the right to discuss the conduct of judges both in their public and private roles.

The court did not make any sweeping statements to the effect that all discussions about the judiciary or judges were prohibited by members of the public, the Bar included, unless it was done in the context of a substantive motion in Parliament or in the course of proceedings to remove a judge of the superior courts on the grounds of misbehaviour.

In my view, the proposed EGM is to discuss in broad terms, the recent appointment and promotion of judges with a view towards taking a position on the matter so that in future the Bar is consulted on such matters either through some formal process or through informal channels.

I believe that when the late Tun Suffian Hashim was the Lord President it was customary for him to consult informally with the chairperson of the Bar Council and senior lawyers on possible appointments to the Bench.

The EGM will also give the Bar an opportunity to publically call for the creation of a judicial appointments committee or commission to advise the Chief Justice and the government on such appointments. This has already been put into practice in several Commonwealth jurisdictions.

Therefore, it seems a little presumptuous of the writers to suggest that the EGM is being called to discuss the conduct of certain judges with the intention of casting aspersions over their professional integrity, competence and suitability for appointment and promotion to the senior judiciary.

In fact, in the case of Raja Segaran - during the hearing of the Bar Council's appeal against the discontinuance of the suit by the plaintiff - the Court of Appeal, in setting aside the discontinuance and remitting the case back to the High Court judge for a decision on the merits, remarked that the court would be loathed to conclude that the Bar did not have the right to discuss the conduct of judges.

The Malaysian Bar has a statutory duty to protect the fundamental tenets of the rule of law without fear or favour, even if it is to its own detriment. Such an onerous duty has not been placed on any other professional body that is a creation of statute in this country.

The appointment and promotion of judges is crucial to the administration of justice and it is in the interest of the Bar to ensure that those appointed are of the highest quality and calibre, in terms of integrity, competence and conduct.

Otherwise, the very core of the judicial system, namely to dispense justice without fear or favour would be totally undermined and destroyed by judges who are neither impartial nor competent or worse, both.

The Bar is part and parcel of the administration of justice. The public has access to the judicial process through lawyers and naturally, they are entitled to have the best legal counsel as well as the best judges to hear and determine their cases.

It is quite difficult to give the public such an assurance when some members of the judiciary are seriously lacking in certain qualities that are necessary for them to do their duty fairly and competently. Therefore, the Bar is right in holding this EGM in order to arrest the declining standards within the judiciary.

The writers called upon the Bar Council to strictly comply with its statutory duties as laid down in the Legal Profession Act 1976 and not transgress into the prerogative of the executive in the appointment and promotion of judges.

This is a rather naive view that is predicated on the fallacy that the government in Malaysia actually adheres to the doctrine of separation of powers.

Nothing could be further from the truth as the events in 1988 have shown. On that occasion, the Bar was forthright in its condemnation of the dismissal of then Lord President and the other Supreme Court judges.

If the writers' arguments are taken to a logical conclusion, then every single resolution of the Bar since 1988 on the independence of the judiciary would amount to sedition if not contempt of court.

In effect, the Bar should just keep quiet when judges are summarily dismissed or attempts are made to undermine the due administration of justice. Perhaps, the writers are willing to accept this as the price to pay for having a strictly conformist and uncontroversial Bar.

In saying that the Bar Council should confine itself to addressing the shortcomings of lawyers such as dishonesty, the decline in professional standards and conduct, rather than arrogate to itself the role of guardian of the public interest or defender of the independence of the judiciary or of the rule of law, the writers are certainly not keeping abreast of Bar affairs.

In this regard, the advocates' and solicitors' disciplinary board has been effectively and adequately dealing with compliants against lawyers given its limited resources and manpower. The Bar Council has conducted, and continues to conduct, exemplary continuing legal education programmes for practitioners and members of the public.

Any judge dissatisfied with the conduct of any lawyer can either report him or her to the disciplinary board or bring the matter up to the council. But, the same does not apply to the judges. Where do members of the Bar go to in the event they wish to make a complaint against members of the judiciary who lack impartiality, objectivity or competence?

The appointing authority seldom listens and the unfortunate practitioner is sometimes subjected to summary proceedings for contempt of court or a prosecution for sedition for having the temerity to make such a suggestion let alone act on it.

Therefore, the Bar is only left with the option of discussing these issues at its general or extraordinary meetings and forwarding its views to the court of public opinion.

Two of the writers also alleged that there were financial irregularities in the dealings of the council and one suggested that the present treasurer is far too junior for the post. I suggest that these matters be taken up with the council during the next AGM or in writing.

The Bar has never shirked from its responsibilities in protecting the interests of its members and the council is answerable to the members. If there is any cause for concern, these matters can be addressed by the members effectively. As a last resort, a motion of no confidence can be passed against the council.

I am of the view that both allegations are baseless and pure conjecture. The treasurer to my knowledge is a person of some nine or 10 years' standing as a lawyer and more than eminently qualified to hold that high office.

I suspect that some members who coveted positions in council but did not have the support of the majority are now using their proxies to conduct a campaign of disinformation to discredit the council and damage the standing of the Bar by using the impending EGM as a cover to vent their frustrations.

While two of the writers were quick to highlight the shortcomings of members of the Bar and of the council, they failed to realise that unlike the Bar Council no checks and balances apply to the judiciary.

Judges are literally appointed for life and it is far too cumbersome to remove them once they are appointed unless there is a repeat of the events of 1988. Therefore, the imperative is to appoint the right sort of judges to do the job and the Bar has a role to play in this process.

The Bar does not need to become a political party in order to question the motives of the government or any other party for that matter. Nor is the Bar precluded from taking a critical view of certain matters if it deems fit.

At the end of the day, the Bar - like members of the public - have the right to be consulted, to encourage and to warn the government and its various branches including the judiciary when the fundamental liberties and rights of the people are transgressed or steadily weakened.

It is absurd to suggest that a government mandated by the majority has the right to violate or undermine the Constitution and laws of the country with impunity and that the only recourse is for the public, members of the Bar included, to express their displeasure through the ballot box and nothing else.

Such a distorted view by the writers is nothing but a negation of democratic principles and processes. A former Lord Chancellor of England, Lord Hailsham rightly warned that an elected dictatorship would emerge if fundamental rights were sacrificed at the altar of political majorities.

Public perception of the judiciary has declined tremendously since 1988 and the Bar being one of the two servants of justice has the right to make its views known. At the end of the day lawyers can argue until the trump of doom about the different interpretations to the decision in Raja Segaran's case and its effect on the rights of the Bar.

But what should be remembered is that the fundamental right to free speech is at stake here. And that right belongs to every citizen of this country, members of the Bar included.

What I am disturbed by is the willingness of certain judges to hide behind the laws of sedition and contempt to disguise their own faults, inadequacies and weaknesses and, an equally telling number of lawyers who are more than happy to be their apologists in order to curry favour with them with a view towards furthering their own professional careers and interests at the expense of their own governing body and the public at large. Both should be condemned in good measure.

The writers' reliance on an obscure English case to justify the prohibition on discussing the conduct of judges, is in my view akin to returning back to the dark days of the Star Chamber in England.

It would seem that even in the early years of the 21st century, there are some amongst us who would prefer to forget the freedoms won by the barons at Runnymede in 1215.