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Friday June 22, 2012

Upholding the course of justice

PUTIK LADA
By VINCE CHONG KHIN YOUNG
newsdesk@thestar.com.my


To discharge its duty to inform the public on the law, the Malaysian Bar has to say what needs to be said.

MY father is a lawyer. He has been for 35 years. Growing up, he was – and still is – a stern yet exceptionally fair man. He praises me when I do something good. He scolds me when I do something wrong. He favours neither me nor my brother. And I admire him for it. At work, I am told by his staff that he is just like that, too.

I took up law and came into contact with the concept of “independence”. The concept reminded me of him. So, on one summer holiday at home from law school, I asked him: “Dad, why are you so fair?”

His response was: “I am a lawyer. It is ingrained in me to speak without fear or favour. I will praise when an action is praiseworthy. I will criticise when an action requires me to do so; even against my own sons.”

It was only much later that I realised that my father lives by Section 42(1)(a) of the Legal Profession Act 1976 (“the Act”), which states that the purpose of the Malaysian Bar (and by virtue of that, all Malaysian lawyers) shall be to uphold the cause of justice without regard to its own interests or that of its members. Section 42 was his creed.

The fact that it is entrenched as statute makes its bearing all the more paramount. For justice, it states. And in so doing, the Act further determines that the Malaysian Bar is to protect and assist the public in all matters touching ancillary or incidental to the law [Section 42(1)(l)].

This sets the Malaysian Bar apart from doctors, dentists, architects, and accountants. Lawyers not only have the usual duties of care to the client, themselves and to the Court, but lawyers have an extraordinary statutory duty to protect the public in all matters of the law.

This means that the Malaysian Bar, its lawyers and, therefore,,my father and myself, have a duty to inform the public on how the law is and how it ought to be.

The significance of this is two-fold. One, the Bar Council, as the representative body of the Malaysian Bar, is not just tasked to take care of lawyers (i.e. all internal welfare and administrative matters) but must also “inform the public” – an external task. Two, this statutory duty will inevitably find the Bar Council at odds with any powers that be. Such is the destiny conferred to it by Parliament.

But more importantly, in order to discharge this duty, the Malaysian Bar must be able to state what it must. It must say it independently, fearlessly and without favour. It is unfortunate that the brunt of it will be against proposed laws. And unfortunately, proposed laws will always be made by the government of the day. It is only by this mode will the Bar Council, acting for lawyers as a whole, effectively “inform the public” on what the law ought to be – thereby protecting them.

Indeed, it has been said that in recent times such independence does not exist. Perhaps, but the solution is simple. Vote the current Bar Council out at the next elections. The ballot papers should be inked and posted, not torn and wasted. Exercise your votes, my learned friends – that is your solution. Be active, not passive.

Nevertheless, I remain confident that whoever the 36 members of the Council are, the Bar Council and the Malaysian Bar must and will remain independent. Such is the nature of our training and such is the nature of our creed. If they are not, the Act has mechanisms in place to deal with it.

However, any usurpation of this independence and purposes of the Malaysian Bar must be viewed abhorrently. The recent proposal for a law academy has the potential to be viewed in such a light. This is made especially true since there has been no single consistent authority on what this law academy’s functions and objectives are.

To this young lawyer’s mind, the law academy’s functions and objectives must be clearly defined and must not encroach into the purposes of the Malaysian Bar as envisaged in the Act. For starters, the law academy must not seek to regulate the profession, nor must it seek practising lawyers as compulsory members. Doing so destroys the fabric of indepen­dence that was envisaged in the Act and in turn, jeopardises the legal system as a whole.

This was recognised by Sir Sydney Kentridge QC of South Africa’s Steven Biko inquest fame. He said: “It is well understood that to remove the control of the profession from the... Bar Council... would have meant the end of the independence of the profession.”

Justice McIntyre in Andrews Case (1989) 1 SCR 143 stated: “... in the absence of an independent legal profession ... to play its part in the administration of justice and the judicial process, the whole legal system would be in parlous state ... these powers and duties are vital to the maintenance of order in our society and the due administration of the law in the interest of the whole community.”

In addition, if the law academy is given a duty to “inform the public” also, it is easy to imagine a scenario where Bar Council states “A” but the law academy states “B”. In such a situation, the loser is the now-very-confused public on what the law is and what the law should be. This further delineates our law and legal system. This confusion must be avoided at all costs.

I cannot encompass all issues on the independence of the Bar and the pros and cons of the proposed law academy. Instead, I urge readers to join the National Young Lawyers Committee at 10am tomorrow at the Bar Council for its Siri Pemikiran Kritis forum titled “Alternative Bar, Alternative Future”.

One thing is certain: the Malaysian Bar must remain independent. Always.

> Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my.

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