ON Oct 29, Prime Minister Datuk Seri Abdullah Ahmad Badawi hosted a dinner for about 600 delegates of the 14th Malaysian Law Conference.
In her welcoming speech, president of the Malaysian Bar, Ambiga Sreenevasan, said: “The Bar extends to the prime minister the honour and friendship you have extended us. When you Mr Prime Minister declared war on corruption, the Bar was with you. When you opened up the democratic space and asked civil society to be your eyes and ears, the Bar was with you. When you said it is important to make sure that justice is at all times maintained, the bar was with you. When you said corruption undermines development by compromising the rule of law and weakening the institutional foundations upon which economic growth depends, the Bar was with you.
“If we are to encourage foreign investment, the rule of law and a strong judiciary are critical. What drives the Bar ultimately is the cause of justice. We want to see the scourge of corruption eradicated from our midst. We want to see truth triumph over falsehood, justice over injustice, integrity over dishonesty. What we want is what you want, Mr Prime Minister.
“Recently, we spoke up a little louder than usual and that is because we have some serious concerns about the institution of the judiciary. For us, silence in this situation was not an option. We believe that change must take place and it must take place now. We must seize this moment as we believe that with you Mr Prime Minister at the helm, positive change can take place. Therefore, we make our appeal directly to you.”
In the introduction to his reply, the prime minister said: “I must apologise to you and I am very embarrassed that I am your host for tonight’s dinner and yet I am late and I kept you waiting despite the fact that I rushed all the way from Kelantan to keep this date with you — our first date. I was in Terengganu in the morning and Kelantan in the afternoon to launch the East Coast Development Corridor and tomorrow I will be in Kuantan early in the morning.
“I am thrilled and happy to have discovered certain things. I was admiring this tie you have given me. I really thank you because you like the design. Take a look at it, ladies and gentlemen, it is Barisan Nasional! Thank you, the bar is supporting Barisan! (Applause and laughter) I am delighted to hear for the first time that as president of the Bar, you have said that you are supporting me for the many things that I have said. Ambiga, I am still committed to what I have said for which you support me.” (Applause)
Then two days later on Nov 1, the prime minister announced the retirement of the former chief justice Tun Ahmad Fairuz Sheikh Abdul Halim and the appointment of Datuk Abdul Hamid Mohamad as the acting chief justice. Hamid was appointed chief justice on Dec 5.
On Nov 16, the prime minister also announced the setting up of a royal commission of inquiry on the controversial Lingam video clip.
Then on Nov 22, the Bar held its extraordinary general meeting (EGM) and unanimously passed a resolution calling for wide terms of reference for the royal commission, including “investigating and making recommendations for judicial reform and on any aspect of the administration of justice in Malaysia".
The Bar would like to think that the prime minister is listening to its calls since their “first date” on Oct 29. In fact, one must honestly acknowledge that things would have been different if the Abdullah administration was not in government. The Bar’s Nov 22 EGM could also possibly have been stopped by a court injunction.
As a responsible professional and apolitical body, the Bar will give credit where it is due. It will trust that the prime minister will seize this opportunity to reform the judiciary and restore public confidence in this institution which has been eroded since the 1988 judicial crisis.
If the Bar can engage the non-governmental organisations and civil society on various issues, all the more so it will have to engage the government. It does not subscribe to the view that to be popular, it is trendy to be anti-establishment.
It follows that when the Bar Council decided to cancel the Human Rights Day Walk, planned for today in conjunction with the International Human Rights Day tomorrow, the Bar Council has acted responsibly, taking into account “the present circumstances that surround this event, particularly the interests of the public and the Malaysian Bar".
Contrary to what some may say, the walk was called off obviously not because of undue pressure from the authorities. The history of the Bar speaks for itself, in that the Bar is always intrepid to further the cause of justice without regard to its interests or that of its members, uninfluenced by fear or favour.
The decision not to walk was one which council members spent days debating. In arriving at it, the council considered two opposing views rationally and thoroughly.
It was ventilated that Section 27(2) of the Police Act 1967, which gives the district police chief discretion to approve the application for a licence to convene an assembly if “it is not likely to be prejudicial to the interest of the security of Malaysia” is unjustified and against human rights principles. Suhakam as well as the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police have expressed their opinion that this section may be challenged as unconstitutional.
It was also argued that even though many, including opposition parties, have applied for a permit, applications to the police have been frequently turned down and appeals have also been to no avail. By the time the matter is taken to court, the purpose of the application would be academic.
Further, Suhakam has opined that lack of definition of the phrase “prejudice to the interest of the security of Malaysia” effectively negates the right to the freedom of assembly enshrined in Article 10 of the Constitution.
Similarly, the authorities have often interpreted the provision to frustrate or deny such rights. In addition, as Section 27(2) is couched in the negative, that is, it assumes that assemblies are not permitted unless it is shown, or that the police are satisfied, that the assembly is not likely to be prejudicial to the security of Malaysia, this has shifted the presumption of a constitutional right in a substantive manner such as to be contrary to the purport and intent of Article 10.
Most of all, it was strongly argued that to apply for a police permit would be inconsistent with the stand which the Bar has publicly taken on numerous occasions — that no permit should be applied for and the law ought to be repealed, the most recent example being the Sept 26 Walk for Justice.
It was also persuasively argued that we are on the cusp of real change and the Bar is at the forefront of this, and that people are looking to the Bar to lead the way. Not to walk, it was argued, would therefore be a disservice to many and would affect the credibility of the Bar.
However, the majority of council members felt otherwise and that the Sept 26 walk was an exception. It was an extraordinary walk for an extraordinary cause, and it was an act of civil disobedience which was absolutely necessary and the Bar would not hesitate to repeat it if severity and magnitude of the cause justify it.
That said, the walk today is only a celebratory walk. It is not a case which warrants an act of civil disobedience. Regrettably, it has also been politicised and the council had to take into account the tension created by the latest Hindraf rally just in case the walk is used as a shield or pretext by some parties to turn it into a protest rally.
In fact, without the knowledge of the council, its Human Rights Committee, then chaired by Cecil Rajendra, did apply and obtain a police permit for the last two annual Festival of Rights walks.
It was also strongly put forward that the Bar should uphold the rule of law. Fidelity to law is pivotal to a democratic society; otherwise it will lead to anarchy.
Until and unless Section 27 has been declared unconstitutional, it is still a valid law passed by a democratically- elected government.
If one can disobey a law just because he feels it is unjust, then there is no end to it, including affording our members a natural right to disobey rules made by the council because they feel that such rules are unfair and unjust.
However, it is the safety of women and children who may take part in the walk which is of paramount importance. With the existence of a proviso to Article 10 of the Federal Constitution, this constitutional right may not be an absolute right. While recognising the freedom of one group to assemble peaceably, we must also recognise the freedom of the rest of society to have quiet enjoyment of life and property. As the event is organised by the Bar Council, it is also mindful of possible suits that may lie against the Malaysian Bar for any personal injury or damage to property.
Weighing the pros and cons of this issue, the council then decided to cancel the walk. We do not observe Human Rights Day just by looking at a person’s right to assemble peaceably when he should have a greater right to live in peace. The council is confident that its decision will have the support of our members and Malaysians.
When we walked on Sept 26, lawyers were branded as crazy and pro-opposition. We have to accept that our decision to cancel the walk today may now be criticised by civil society and some human rights groups.
But this only goes to show the independence of the Bar Council whose members will not be afraid to make any decision no matter how unpopular it is if we think it is the right thing to do in the best interests of the Bar and the country.
Saturday, December 22, 2007
ON Oct 29, Prime Minister Datuk Seri Abdullah Ahmad Badawi hosted a dinner for about 600 delegates of the 14th Malaysian Law Conference.
Monday, November 26, 2007
Sunday, November 25, 2007
The Sunday Star
The Café Latte Chat is a regular series that aims to stimulate discussion and opinion on current issues. It begins this week with the spotlight on Chinese votes in the context of the next general election.
IN his preamble, The Star's acting group chief editor Datuk Wong Chun Wai pointed out that power sharing in this country has been a numbers game. The Chinese now comprise only 25% of the total population compared to some 35% a decade ago. Only about 30 of the 219 parliamentary seats are still predominantly Chinese.
What are the possible impact and implications of the shrinking Chinese votes on the power-sharing model? Can the community afford a weaker representation in the ruling Barisan Nasional?
How can the Chinese community rediscover their political influence in the governance process?
Are the grouses and sentiments real and legitimate?
What is the way forward?
The participants in this session are corporate lawyer Roger Tan, Insap research director Fui K. Soong, DAP election strategy advisor Liew Chin Tong, Sedar Institute director Gavin Khoo Khay Peng and The Star's associate editor Joceline Tan.
Below are excerpts from the discussion chaired by Wong.
Urban And Restless
Wong: Let's start with the perception that urban voters especially the Chinese are in an anti-establishment mood.
Joceline: There is clearly unhappiness mainly among the intelligentsia, people who read newspapers, watch TV, (and) follow current events about a variety of issues. They are also mainly urban-based and middle class so areas like the Klang Valley and also Penang would be areas to watch. But sometimes as a reporter, I get the sense that when people tell me something, like the Chinese are unhappy, I tell someone else, and he or she tells others and after a week, it comes back to me. So you wonder how much is hearsay and how much is real. We don't have a polling system to provide us with more scientific feedback.
Soong: Much like marketing, understanding voters, how they behave – these are all behavioural patterns. They are important factors for all political parties including the MCA. But talking about communal politics, this is where a lot of people fail to understand the issue of ethnicity. The West is beginning to reject this issue in politics. But we can't run away from the issue of multi-ethnicity in Malaysia.
Where Malays are concerned, religion is one line that you don't touch. For the Chinese, it's language. In Sabah and Sarawak, when we talk about the indigenous groups, we do not refer to them just as Bumiputra because for them it's about tribal identity. But from our studies we find we can't take away how Malaysians view themselves in terms of ethnicity. But they are proud of being Malaysians and, as I always say, traffic lights don't just break down just for the Chinese or if the drains are stuck, it affects everyone.
Liew: As of April 15, there were four million Malays still unregistered as voters. For now, the Government can still segregate urban and rural votes on the assumption that urban areas are still Chinese dominated and that most Malays vote in their kampung. But DAP would not only have to appeal to the Chinese if the four million urban Malays were to enter the electoral roll. Maybe it can transform itself into a party that champions all urban Malaysians. Umno's Malay hegemony is because it controls most of the seats in the rural areas. Once you have Malays who live and work in urban areas, the issues will change; the articulation of ideas would be different.
Wong: What are your views on the urban Chinese vote swing in the next elections?
Liew: There is a large number of swing voters in urban politics, even in Australia and the United States. In Malaysia, maybe DAP will get more votes this time around, but not necessarily more seats. I don't think we will win many more seats in the next election because of the way the electoral system structures the seats. Besides, there aren’t many urban seats available. From what we hear, we may get an increase in popular votes but it would not be as great as in 1986. But even in 1990, the dynamics were different: there were hopes for a change of government, at least for a majority of Chinese. You don't see it this time around because Umno is so strong.
Roger: A Chinese vote swing in favour of DAP would be quite a disaster for the community's representation in government where the MCA is concerned. The Chinese in the rural and urban areas have a different way of thinking. They are still inclined towards the MCA because the majority are grateful for the new villages created during the Emergency.
The MCA grassroots and connectivity are stronger when dealing with rural Chinese who generally still think along Chinese representation.
This is not the case in the urban areas where issues and educational backgrounds are different. They think in terms of national interest, national issues and also the importance of a strong opposition. So we see a lot of Chinese turning towards the DAP and other opposition parties.
But when you talk about shrinking Chinese votes and representation in the government, the Chinese-based parties should unite.
This may be a near impossibility, but there was talk of MCA and Gerakan getting together in the last elections. I thought that was a good idea.
Soong: Once in a while – I don't know why – the Chinese community has this self-destruct mechanism. But the machinery, the infrastructure, is there whenever there are issues in rural areas. In urban areas, however, I believe MCA has not handled urban issues or maybe even urban Chinese issues in a way that meets their needs, which are very different. Their outreach, particularly to the professional groups, has been difficult because of the economic advances. There has to be more direct involvement with the population, to make them see that the very same economic advances were possible because of the stability provided by the Barisan framework.
Wong: When people have a problem they go to (Datuk) Michael Chong but some feel MCA is not “shouting” enough and they use DAP for that. They want the best of both worlds, so they vote DAP for Parliament and Barisan for state. Is this a Chinese dilemma?
Soong: If everyone thought that way, it would be koyak (finish) for us. I mean it's a selfish thought because it's as if they are saying they are interested only in the progress of their kawasan while hoping that others would vote the opposition into parliament for a voice.
Khoo: We have to look at the psyche of political parties. Gerakan, for example, has the same rhetoric chant as MCA – it does not want open confrontation. It keeps saying that we do things quietly; we serve the society and community in our own way by cooperating with the government. They believe in closed-door negotiations.
About the inability to connect with urban voters, it's not so much about urban or rural voters but more of the generation gap, the inability to connect with the new generation of Chinese Malaysians. Failure to integrate comes from two main reasons. One is that race-based political parties are still working at the post independence mindset. At that time, it was necessary for race-based parties to be formed.
These political parties fail to realise that there must be an evolutionary process. There should be a timeframe to work together and integrate so that a real Malaysian political party can emerge. The second reason is that political parties claim to represent certain communities by their names and, for that matter, Gerakan has also become very “Chinese-centric” because of this.
Roger: I would equate the relationship of MCA, Umno and MIC as a marriage of 50 years. So imagine that in this married situation, if Umno and MCA continued to shout at each other, the marriage would be broken. But there are a lot of Chinese who would love MCA to be more vocal and raise issues in a more open way so that MCA is seen as a party that will not be bullied.
But once we do that, we are going to have a reaction. If you look at our 50-year history, there have been instances where MCA has spoken up and each time, there was strong reaction from Umno.
Chinese Votes Crucial In Malay Areas
Wong: When the Chinese supported the opposition in 1969, there was a loss of representation in government. They know they can never be “king” but they can be the king-maker in close-fought seats. Given the shrinking Chinese population, would that mean they would face less and less political clout?
Liew: I prefer the analogy of the 1990 election when the majority of Chinese voted opposition and this prompted the government to announce Vision 2020 four months after the elections. It was the recipe to address Chinese discontent and because they knew the Malay ground was very weak at that time. The Chinese were the king-maker in 1990, so they decided to sustain their support by addressing the issues.
MCA will not face serious consequences in the next elections because half of their seats are Malay-majority and Umno is relatively strong at the moment. In addition, many urban voters face a dilemma in the sense that services and amenities are linked to patronage. Many Chinese Malaysians feel it's their right.
Soong: About 65% of Umno seats are multi-racial seats. When the candidate or constituency is dicey, the Chinese tend to vote for the opposition. They are leveraging against each other.
Roger: From my observation, if Umno and PAS vie for a seat, the Chinese would vote for Umno. As for those seats that are for MCA and DAP, the Malays go for MCA. So it's not quite correct to say that MCA relies on Malay votes in order to survive. The Chinese were the king-maker when there was trouble in Umno in 1999.
Wong: In a contest between two Chinese parties, how would the DAP win the Malay vote?
Liew: The press is restricted and DAP has no free access to mainstream media. It is difficult for the opposition to preach the national message. For the Malays, DAP is a Chinese chauvinist party. For the Chinese, PAS is given the same view. There's no chance for DAP to make a national conciliatory step. We are forced to go on the ground and that's challenging.
In addition, the electoral system is structured in such a way that it gives Barisan the advantage. As such PAS has won in purely Malay seats and DAP, unfortunately, has also won only in purely Chinese seats.
Khoo: It's simplistic to think that anyone can just form political parties to replace MCA, Gerakan or even DAP because history has shown that parties such as Parti Negara and Pekemas have not achieved any effect. The multi-racial system is inevitably what our system must include and there must be evolution.
We cannot just base it on the post-independence model and say we are going to use it for the next 50 years. If the dominant party tells you we will still be using the same model in 2057, then something is wrong. That's why I think it's very pertinent for political parties within the system to see what they can do to influence the dominant partner to change the system.
Roger: But in the urban areas, the Malays would still vote for Umno simply because Umno is seen as the protector of Malay rights and the Constitution. Also, many Malays vote for them out of gratitude for what they have done.
Liew: About half of the Malay electorate voted PAS and Keadilan in 1990, so for Malays not to vote for Umno is possible. But Abdullah is still very strong and seen as a champion of the Malays. Things might change in the years ahead because we may no longer assume that Chinese are urban and Malays are rural, as more Malays move to urban areas.
The current administration has not addressed this issue and the disappointment will show in the next election. But there is no way Umno will change unless and until they have to face the swing voters in urban areas. When it has to face younger Malays who have different ideas about the world, then it would have to adapt.
Joceline: The critical group in the next elections would be the urban voters, a large proportion of them being Chinese. Their access to information, the media and the Internet shapes their worldview about politics, democracy, or what is due to them. They see things differently from those outside the urban centres.
Any party that serves this urban grouping will have to come around to their way of thinking and to address the issues. Even Umno will face a similar situation as urban Malays grow in size. They can still raise the keris and it works for the rural crowd but they'll have to start rethinking the urban vote because there's going to be a critical mass of urban voters.
Khoo: Many issues cut across racial lines in urban areas. The government focuses too much on politics, too little on governance. People want this to be addressed – imbalances, abuses, corruption and poor public delivery system. They're also concerned about the inability of the government to control economic opportunities, which lead to escalating costs. When high prices hit the Chinese, it also hits the Malays and Indians.
In his concluding remarks, Wong said: “There seems to be several streams of thought here. We agree the Chinese community is shrinking and some of us are concerned the community will lose political clout if the trend continues.
“But others take comfort that as the political sphere changes, especially in urban areas, the Chinese voters – as a minority – would remain a key factor. The urban voters, it has also been pointed out, also share many commonalities regardless of their ethnic background. Malaysians would be able to see a clearer perspective of this in the next general election. –Transcribed by PAUL CHOO and M. KRISHNAMOORTHY
Wednesday, November 7, 2007
New Straits Times
by Roger Tan
Yong Peng is my hometown and I am always proud to be associated with this town in which I grew up.
In 1800, there were only five Malay houses standing on the banks of Sungai Bekok and on Bukit Jambu. The town was then then known to the Malays as Sri Bertam, named after a tree called ‘Bertam Tree’ in Kampong Bukit Jambu.
In November 1847, four Teochews from China, led by Boo Koh Lak Loo @ Ah Loh, came to Sri Bertam by boat after paddling up Sungai Bekok . They then built three houses on the site of the present government clinic and later, with the help of their Malay friends, began to clear some thick forests at the river banks.
When this small settlement prospered and progressed, Boo named the place Yong Peng or “everlasting peace” in Chinese.
The present Jalan Ah Loh was named after Boo, who died in 1907.
But the peace in Yong Peng was shattered when hundreds of Chinese were tortured and killed during the Japanese occupation.
During the emergency Yong Peng was the second most notorious ‘black area’ after Sungai Siput in Perak.
Today, Yong Peng is a bustling district which has two main interchanges on the North-South Expressway. It was also made a State constituency seat in the last general election.
Yong Peng is now known as a ‘Foohow town’ and is a favourite stop-over for highway travellers for its Foochow fried noodles, red rice wine chicken and Foochow biscuits.
With the current soaring prices of commodities, the majority of the town folk, who are rubber smallholders, and oil palm plantations are doing well.
As for me, I will never hesitate to promote Yong Peng.
I remember one day when I was in Form 2, the students were asked to speak on this topic “How to pass your examinations?” in an oratorical contest in class.
I remembered standing up and arguing that students would pass their examinations if teachers did not ask them to help mark the examination papers.
Obviously, I came last in the contest, but not without receiving thunderous applause from my class, much to the annoyance of my culprit teacher.
But then there were many hardworking teachers who had taught me from 1973-1978. Among them were Yap Teong Hoon, Rose Anne Easaw, Lau Yen Fung, Abdullah Hamid and Low Ah Tee.
Despite it being a rural school with poor amenities, the relationship between teachers and students was very good. We hardly had any serious school disciplinary problem.
I still remember during my time, the school premises were shared by students from both the English and Malay mediums. We mixed freely together and there was no such thing as racial polarisation at that time.
Being someone who was more interested in arts subjects, I stayed behind to do my Form 4 and Form 5 whilst students undertaking Science subjects had to continue their studies in Batu Pahat.
In the school, I was also the president of Interact Club, chief pupil librarian, secretary of the Scouts Movement and vice-captain of our Green House sports team.
In 1978, a new school, now known as Sekolah Menengah Dato’ Seth was also built beside the river.
It was under the same school management, and I am proud that I was then the Head Prefect of both the English and Malay streams as well as of the two schools.
If the students of these two schools are reading this article, I hope they will continue to work hard and excel so that they can make a name for our school and our hometown, Yong Peng.
Most of all, may Yong Peng continue to shine in everlasting peace as a fine example of unity in diversity since its founding days.
Note: The writer is a prominent Malaysian lawyer. He is a member of the Malaysian Bar Council.
Wednesday, October 31, 2007
Comment by Wong Chun Wai
|Prominent guest: Bar Council president Ambiga Sreenevasan (left) and organising chairman Roger Tan (right) escorting Sultan Azlan Shah to the opening of the 14th Malaysian Law Conference at the KL Convention Centre on Monday.|
Tuesday, October 30, 2007
Thursday, October 25, 2007
Sunday, October 21, 2007
by Martin Vengadesan
• All for independence
• Significant moments
The state of judiciary is very much in the news today and in the forefront calling for reform is the Bar Council. The country's governing body for lawyers was set up under the 1947 statute that charged it to uphold the cause of justice without fear or favour. Sixty years on, despite difficulties, it remains true to its cause.
This time, the reception was friendlier with the memoranda being accepted by the Prime Minister’s political secretary, Datuk Wan Farid Wan Salleh.
The lawyers’ “walk”, in a heavy downpour, was generally hailed as a positive action and drove home a very serious point. In Ambiga’s words, “When lawyers walk, something is wrong.”
It remains to be seen whether lawyers walking for justice will lead to any changes. But history so far has shown that, in a showdown, the executive has always held sway.
To do that, it has 30 committees and four ad-hoc committees on areas such as human rights, legal aid, orang asli rights, intellectual property, gender issues, study loans, best practices and numerous sub-divisions of the legal practice.
blueprint for the workings of the Bar Council, which was launched in May.”
Performers for the dinner include Francissca Peter, Comedy Court and ASK Dance Co.
For more details, call Sivanes at 03-2031 3003 (ext 174). (For more information, please visit www.malaysianbar.org.my/mlc)
The turning point
There is scarcely a lawyer practising today who does not make reference to the Judicial Crisis that unfolded in May 1988. Beginning with the suspension of Lord President Tun Salleh Abas and five Supreme Court judges, it eventually led to the dismissal of Salleh as well as two of the five judges, Tan Sri Wan Suleiman Pawan Teh and Datuk George Seah.
The dismissals shocked the nation and raised questions about the independence of the judicial system. Nearly 20 years on, former Bar Council president Yeo Yang Poh (from 2005 to March 2007) is blunt when asked to explain the significance of the “confrontation” between the executive and the judiciary.
“Simply put, in 1988, the Government was worried that the outcome of certain court cases (involving Umno) was likely to be not what they desired. Hence (then Prime Minister) Tun Dr Mahathir Mohamad decided to put in place machinery to remove the top judge who would not do the Govern-ment’s bidding. It succeeded. From then on, the Government managed to have a more and more compliant judiciary. That year was indeed a sad turning point for the country.”
Damning words indeed, but even current de facto Law Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Aziz agrees that 1988 was a watershed year for the Malaysian legal system.
“We don’t want a repeat of the 1988 judicial crisis. It was the worst year for the Government in terms of its relationship with the judiciary and the Bar. As the Minister in charge of law, I don’t want to see it happen again.”
Indeed Nazri emphasizes that an independent judiciary is of paramount importance to Malaysia. (See below.)
Former Bar Council president (2000-2001) Haji Sulaiman Abdullah remembers the crisis as a tumultuous period that brought the organisation’s role into focus. “It made very clear that the administration’s perspective of any organisation/institution was that its primary purpose was to serve the government in power and that any perceived deviation was seen as something that needs to be corrected immediately. The more significant the institution, the stronger the reaction from the government if it strayed from its ‘limit’.
“Of course every government tries to get a judiciary that is favourable to itself, but in 1988, members of the Bar were confronted with a naked and absolute show of force. I think the common man has always recognised the necessity of a neutral umpire and any attack on a independent judiciary is an attack on the core of a civil society.”
“I am proud to say that irrespective of the personalities of the main actors, the bar chose overwhelmingly to stand by what was right rather than what was convenient. There were, of course, some very senior lawyers who were swayed by the seductive calls of convenience and tried to get the Bar to change its stand, but these efforts were repulsed.”
Indeed, Bar Council committee member Roger Tan recalls that some members were unable to withstand the pressures they faced.
“I actually remember that after the removal/suspension of the judges, the Bar Council passed a resolution not to recognise the new judicial leadership, but I’m afraid that for Malaysians, the rice bowl comes first, and as such, many lawyers did not follow through with this.”
“The Bar is known for ostracising judges who have gone astray, but it is also the first to defend and honour judges who have stayed steadfast to their oaths in preserving, protecting and defending the Constitution.”
Current Bar Council president Ambiga Sreenevasan feels that the situation is not beyond repair. “I believe the judiciary certainly needs looking into seriously. We have many good, honest and hardworking judges who are working with limited resources. We appreciate the work they do and the circumstances under which they function. They deserve to be in an institution that is scandal-free and above suspicion.
“I maintain that we are capable of a First World, first class judiciary and we are entitled to it. But confidence in an institution is a fragile commodity. Once this is damaged, it requires sincere and positive action to restore.
“But the first step towards restoring confidence is to recognise that there is a problem.”
Tun Salleh Abas with Raja Aziz Raja Addruse who represented him at the tribunal hearings.
All for independence
AN independent judiciary is crucial to the well-being of the country, says de facto Law Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.
“It is true that Barisan Nasional is very dominant politically, but the administration under our current Prime Minister, Datuk Seri Abdullah Ahmad Badawi, has followed a policy of non-interference in the legal system. This government is in favour of an independent judiciary.
“We know that if the Prime Minister interferes, that’s it, the whole system becomes compromised. Pak Lah has moved towards openness and transparency and he recognises that an independent judiciary is crucial for the country’s development.
“And I think it could immediately be seen with the case of former Deputy Prime Minister Datuk Seri Anwar Ibrahim, who was released from prison soon after a change of leadership,” he says in an interview on Tuesday.
(On Sept 2, 2004, the Federal Court overturned Anwar’s 2000 sodomy conviction by 2 to 1, as it found contradictions in the prosecution’s case.)
Nazri also says the Government was aware of the public's scepticism towards many important trials: “We are now in an era of experimenting with liberalism and this means a freer press, which can lead to sensationalism. I don’t want to start gagging the press, but this means that there can be unfair speculation, (and) that leads to a mindset where the public might see a conspiracy behind every major case.”
Neither has he taken kindly to the Bar Council’s recent protest in Putrajaya. He had criticised the Walk for Justice, saying it was “unbecoming”, according to press reports.
He was quoted as saying that there was no crisis in the judiciary and therefore no need for a judicial commission.
Nazri, however, says that he has often been misunderstood on the issue.
“I never said I am against a cleaning-up of the judiciary, merely that I want to work not just with the Bar Council but with the Judiciary itself. There are many judges right now who are concerned with the image of the judiciary in the eyes of the public, and we should all work together. And I would rather we discuss these problems face to face.
“The Bar Council leaders can always see myself or the Prime Minister to raise their issues. I feel that such protests are not in keeping with the stature lawyers should have in the eyes of the public. I would like us to work hand in hand with the Bar Council to improve the legal system. That is why I was very surprised when the lawyers marched.
“As a former lawyer turned executive, I am very particular about the separation of the government from the judiciary.”
1958 – Bar Council protests against the Public Order (preservation) Bill because of the extensive powers being given even to junior police officersto control riots.
1965 – Government draws up Bill to limit the rights of appeal to the Privy Council in England, which is protested by the Bar. The Bill surfaces from time to time before this right is finally withdrawn in 1985.
1971 – All non-resident lawyers are no longer allowed to practise which leads to an immediate exodus of 63 Singaporean lawyers.
1974 – Former Prime Minister Tunku Abdul Rahman is called to the Bar.
1975-77 – Repeated clash of wills between Bar Council and Government over Essential (Security Cases) Regulations (Escar). During this period, a 14-year-old boy is charged under the Internal Security Act for possession of a firearm and ammunition and tried under Escar. He is found guilty and sentenced to death because the law does not differentiate between a juvenile and an adult. Bar Council calls for a repeal of Escar and at an EGM resolves that members should not appear in trials involving Escar. The AG expresses regret over the resolution. In the following months, several lawyers withdraw as counsel for Escar cases. (The boy’s death sentence was eventually commuted to detention in a juvenile home and he was released some years later.)
1978 – Legal Profession (Amendment) Act 1977 is passed with provisions to allow the AG to issue certificates for foreign lawyers to practise in Malaysia, barred certain classes of lawyers from holding office in the Bar and raised the quorum to one-fifth of its membership. This amendment is regarded as the Government’s retaliation against the Bar’s opposition to Escar.
1981 – 200 lawyers march to Parliament wearing black armbands to protest amendments to the Societies Act and the Constitution. Foty-two are later charged with and found guilty of unlawful assembly.
1983 – Bar Council passes resolution to levy a compulsory subscription of RM100 per member per year towards its Legal Aid Centre Fund.
1985 – Bar Council sets up a committee chaired by former Prime Minister Tun Hussein Onn to review provisions of the Legal Profession Act.
1986 – Lawyer Karam Singh and then Bar Council vice-president Param Cumaraswamy are charged with sedition but is acquitted. The High Court ruling is hailed as a vindication for free speech in Malaysia.
1987 – Government uses Internal Security Act to detain opposition and social activists under Operation Lalang
1988 – Judicial crisis unfolds resulting in the sacking of Lord President Tun Salleh Abas and two senior judges. The Bar opposes the Executive’s actions.
1990 – Bar AGM votes to introduce a mandatory professional indemnity insurance scheme to cover every law firm.
1995 – Hendon Mohamed, the first Malay woman lawyer, is also the first woman elected Bar president.
1996 – Poison-pen letter causes a scandal resulting in resignation of a High Court Judge.
1998 – Perceived inconsistencies in sodomy and corruption cases involving former Deputy Prime Minister Datuk Seri Anwar Ibrahim lead to renewed momentum in Bar’s activism.
2000 – The Bar moves a motion calling on the Prime Minister to make representations to the King for the appointment of a tribunal to investigate the conduct of Chief Justice Tun Eusoff Chin.
2005 – Former Bar Council president Datuk Param Cumaraswamy and several other prominent members walk out of AGM that is allowed to carry on despite the lack of a quorum after the Bar takes the view of several lawyers who feel that a quorum is not required.
Source: Justice Through Law; Staric
Wednesday, October 17, 2007
Monday, October 1, 2007
“LAWYERS don't walk every day. They don't walk every month. They don't even walk every year. This is the third time lawyers are walking,” said Ambiga Sreenevasan, chair of the Malaysian Bar Council before the start of the “Walk for Justice” last Wednesday.
There were only two other occasions when lawyers walked in the 60 years of the Malaysian Bar's history.
On April 7, 1981, about 200 lawyers marched from the Lake Club to Parliament House to protest the tabling of the Societies (Amendment) Bill 1981.
Then on Dec 4, 1998, about 100 Kuala Lumpur-based lawyers marched on the Court of Appeal in support of lawyer Zainur Zakaria who was appealing against a three-month jail sentence for contempt in the trial of Datuk Seri Anwar Ibrahim.
On Sept 26, about 2,000 lawyers walked in the spirit of camaraderie for 3.5 kilometres from the Palace of Justice to the Prime Minister's Department, and then stood in the rain in support of their leaders who later submitted two memoranda to the Prime Minister's Office, urging the government to set up a Royal Commission of Inquiry to probe the state of judiciary and a commission on judicial appointments and promotions.
In fact, it was unwise earlier on for the police to stop seven buses ferrying lawyers from entering Putrajaya. By making these 200 stranded lawyers - who are mainly younger ones who hitherto had hardly experienced any deprivation of rights - walk an extra five kilometres or so from the highway to the Palace of Justice, this long march will now surely ignite a spark in their hearts to take up issues affecting the citizens’ rights.
The Sept 26 “Walk for Justice” was peaceful, symbolic and meaningful. Lawyers, regardless of age, race, religion (including Muslim lawyers despite their fasting) and gender, had come out from the comforts of their air-conditioned rooms on a working day to make a statement - obviously not a political one, for otherwise they would have donned their black robes walking down the boulevard, comparing themselves with the red-robed monks marching in the streets of Yangon.
While the walk by members of this noble profession may have warmed the cockles of many hearts, the idea to walk has also appeared to be anathema to some.
Immediately, de facto Law Minister Datuk Seri Nazri Aziz described the conduct of the lawyers as “unbecoming". The Sin Chew Daily even reported the lawyer-turned-politician going as far as to describe those who participated in the walk as having the brains of an opposition party when in fact many of the brains who took part are members of Barisan Nasional component parties.
Then Bernama quoted Information Minister Datuk Seri Zainuddin Maidin calling on members of the Bar to set up a commission to investigate the “unprofessional conduct of their leaders".
Well, it is hoped that by now, the minister has cooled down a little. In fact, Nazri is correct to say that currently the Bar and the government enjoy an excellent working relationship. This is, in no small measure, attributable to the minister and the Bar Council appreciates it. It cannot be gainsaid too that “Walk for Justice” had been possible because of the openness practised by the Abdullah administration.
In fact, both the minister and the Bar are on the same track in protecting the judiciary, except that each is looking at the issue from a different angle. The minister is concerned that the lawyers’ action would undermine public confidence in the judiciary. The lawyers, on the other hand, being stakeholders in the administration of justice, are concerned with what they saw and heard in the video clip. They now find themselves in the vanguard against bad judges when the video clip has threatened the independence of the judiciary.
As former lord president Tun Mohamed Suffian said: “The two essentials of the rule of the law are the independence of the Bar and the independence of the judiciary.”
Woe betide the day an individual or a body of persons is capable of controlling the head of the judiciary and the head of the Bar.
In fact, to lawyers, this episode which is more important than the nude-squat incident, affords the Abdullah administration an opportunity to set up a Royal Commission of Inquiry to restore public confidence in the judiciary which has been severely eroded since the 1988 judicial crisis.
In any event, the Bar Council has postponed the extraordinary general meeting fixed for Saturday, maybe to a date after the independent panel's report. Members of the investigation panel can expect the Bar to go through its report with a fine-toothed comb.
The oft-misunderstood role of the Bar is best explained by former prime minister, Tun Hussein Onn: “It is the duty of the legal profession to uphold the cause of justice without fear or favour. To effectively discharge this role, the profession must remain independent and be seen to be so. The Bar has a duty to speak up on matters of public interest affecting citizens’ rights and comment on proposed legislation affecting such rights.
“In doing so, the Bar must be constructive and must conduct itself with decorum. The government must appreciate the role of the Bar and be respectful of its comments - even when it differs with the profession's views.”
Friday, September 21, 2007
I REFER to the report “Time to Malaysianise common law system” by Dr Wan Azhar Wan Ahmad (The Star, Sept 18).
Like all others who advocate the replacement of the English common law, Dr Wan Azhar has laboured under a serious misconception that we have to establish and develop the Malaysian common law when, in fact, the Malaysian common law has been actively evolving and developing since Merdeka. It is actually a non-issue.
The former Lord President, Sultan Azlan Shah, acknowledges this. Writing in 2004 (Constitutional Monarchy, Rule of Law and Good Governance, pp. 188-189), Sultan Azlan Shah wrote that it is erroneous to say that any reference to the common law in Malaysia especially in the field of commercial transactions means the common law of England.
He added that over the past hundred years or so, through the judicial process, almost every branch of the law in Malaysia has been developed, and that whilst the Malaysian common law may be similar to the English common law, what is applicable is, in fact, the Malaysian common law.
In my view, this situation is akin to us borrowing English words to develop our National Language. As an avid reader of Malay newspapers for many years, I have observed how English words are constantly converted into Bahasa Malaysia to fill the vacuum. Once converted and used, the words become part of the Bahasa Malaysia vocabulary. Thereafter, one does not say such words are in fact the English language.
It follows that our legislature and judges have already developed the Malaysian common law to such an advanced stage that these days local cases are often cited in our courts compared to the early years of our nationhood. It is obviously not a case where our country is devoid of any legal expertise.
Likewise, it is mendacious to describe our legal experts as impotent or they are still colonised when, in fact, we can now actually take pride in the development of the Malaysian common law.
What many take issue, however, is with the late Tan Sri Prof Ahmad Ibrahim’s proposal to develop a new system of common law based on his notion of the basic law of the land – Islam and Malay customs. This is where Dr Wan Azhar and Prof Ahmad Ibrahim have erred because the basic law of the land is the Federal Constitution.
Therefore, to replace the Malaysian common law on this misconceived basis is a separate issue altogether as it is tantamount to substituting the Malaysian syariah law for the Malaysian common law.
A fortiori, to amend the Civil Law Act to allow this will offend the spirit of the Federal Constitution in our multi-racial, multi-religious and multi-cultural society.
In fact, decisions of our judges delivered in the pre-1988 Judicial Crisis were often cited in various Commonwealth jurisdictions, but not any more these days. We were then, like the English, exporting our Malaysian common law!
What we should be aiming at is to improve the administration of justice in this country – the upgrading of our courts to make access to justice speedier, cheaper and more efficient in this information technology age, and ensuring that only the best and most qualified are appointed to dispense justice in our land.
It follows that what is more urgent and vital is to restore international respect for our judgments that form the Malaysian common law.