Sunday, August 2, 2020

Of the Bench and the Bar

The Sunday Star

by Roger Tan

Allyna Ng with her proud parents, Datuk & Datin Ng Kong Peng at the 2015 JPA Presentation Ceremony.

Malaysia’s rule of law can only be upheld if these twin pillars remain independent and fearless. And for that to happen, we need to eradicate one of their main threats — the mass production of lawyers who are ill-equipped and incompetent due to poor legal training and education. 

IT is always a proud moment for the nation whenever we learn of our young Malaysian students excelling in their legal studies overseas. 

On July 21, Allyna Ng Ming Yi obtained a first class honours in BA Jurisprudence (Law) from Oxford University. She was also the recipient of the Crystal Prize for best overall performance in Law; the Farthing Prize for best performance in Constitutional Law and the Monk Prize for best performance in Criminal Law. 

Allyna, the younger daughter of lawyer couple, Datuk Ng Kong Peng and Datin Amy Yeo of Melaka (pic), is a Public Services Department (JPA) scholar. An alumna from SMK Infant Jesus Convent, she was also in the top 20 of 2014 SPM candidates in Malaysia. 

In fact, this is not the first time a Malaysian youngster has done our country proud with their law studies overseas. In October 2010, an ex-Muar High School boy, Tan Zhongshan emerged as the overall best law student in the entire Cambridge University – an academic feat said to have surpassed even that of the university’s luminary alumni, Singapore’s former Prime Minister, the late Lee Kuan Yew and his wife. 

A son of a retired Federal Court judge and a holder of Singapore’s Asean scholarship, Zhongshan later graduated with a Master of Law degree from the prestigious Harvard Law School and is now reportedly a deputy public prosecutor in Singapore. 

I always marvel at such academic achievements by others, wondering how they could have done it with such ease. I have nothing much to boast about my own academic achievement, except perhaps being in the top 15 among Commonwealth students in the 1988 English Bar Finals. I must unashamedly confess that I chose law because I was hopeless in Mathematics and Science, having failed both in my Form 5 Malaysian Certificate of Education examinations! 

But it must be stressed that having a good academic result will not guarantee a successful career at the Bar in this dog-eat-dog world meant only for the survival of the fittest. Take for example, the late Karpal Singh only obtained a third-class honours law degree from the University of Singapore but he later became one of the most outstanding criminal lawyers this country has ever produced. 

On a more serious note, more than 1000 law graduates enter the legal profession every year, but there is no common system to evaluate, ascertain and ensure their levels of competence. Today, there are about 21,000 lawyers practising in Peninsular Malaysia, and the number of lawyers in Klang Valley alone will exceed the total number of lawyers in Singapore. 
The Bar Council has been advocating since 1980s for a Common Bar Course (CBC) as the single-entry point into the legal profession for all law graduates from overseas as well as local universities. I wrote about it too in 2011 in a commentary in The Star: “High time for a new Bar”. 

Sadly, we are still talking, and talking about it today and there appears to be a total lack of a sense of urgency and political will to reform our decrepit legal education in the public interest. With a surfeit of lawyers entering the profession annually from so many diverse educational streams, the new entrants should be subjected to uniform standards of knowledge and legal skills and training, regardless of the origin of their law degrees. 

With all due respect, I have observed one unhealthy trend among some locally trained lawyers who consider foreign trained lawyers such as barristers as elitist. They are not, but with CBC acting as the ultimate sieve in admitting only the qualified ones into the legal profession and judicial and legal services, it is hoped this will raise international recognition of our local law graduates who are not barristers. 

Currently, neither the certificate of law practice (CLP) nor a law degree from any local Malaysian university including University of Malaya is recognised by Singapore as coming from an approved university permitting our law graduates to sit for their professional Bar examinations. 

This is a quite a pity as speaking from personal experience, I am quite impressed by law graduates from Universiti Malaya, Universiti Kebangsaan Malaysia and the Multimedia University. Hence, I do not see these local graduates having any difficulty in competing with foreign trained graduates if CBC is introduced. 

My other observation is that our local and foreign law graduates seem to have a different perception of and approach to fundamental principles of justice, rule of law and democracy when these are actually universal values. As R. Ramani, second president of the Malaysian Bar and a former Permanent Representative of Malaysia to the United Nations said not everything about British colonialism is bad. He said the bench and bar are heirs of three noble traditions deriving from the colonialism, namely the English language, British system of justice and the British spirit of democracy. 

In fact, Lord President Tun Mohamed Suffian Hashim said the two essentials of the rule of the law are the independence of the Bar and the independence of the judiciary. 

As I have written many times, the concept of the rule of law which is also the fourth guiding principle of our Rukun Negara can be best summed up in the words of Dr Thomas Fuller, who wrote in 1733, “Be you never so high, the law is above you.” In other words, no one including the king could disregard the law with impunity. As the English jurist, Henry Bracton (c. 1210 – c. 1268) put it, “the king is under no man but under God and the law because the law makes the king”. 

As regards the independence of the judiciary, I cannot do better than to quote the late Sultan Azlan Shah who said in a 1986 public lecture: “Judges are not beholden politically to any government. They owe no loyalty to ministers. They have longer professional lives than most ministers. They like civil servants, see government come and go. They are “lions under the throne” but that seat is occupied in their eyes not by Kings, Presidents or Prime Ministers but by the law and their conception of the public interest. It is to that law and to that conception that they owe their allegiance. In that lies their strength.” 

But that solemn oath taken by every judge to preserve, protect and defend the constitution upon assumption of office is no easy task to fulfil. 

As former Chief Justice of the Philippines, Artemio Panganiban would tell us that judges are subjected to all sorts of temptations and pressures - some brazen, some subtle, some direct, some indirect. 

“Litigants and their lawyers are sometimes devious. They study the judge’s profile, personality, family history and employment record in a spirited effort to find a weak point. 

“Some resort to blackmail, some to political pressure, still others to friendship or kinship or even religious relationships. 

“Many times lawyers are retained by litigants not because of their skill and brilliance in legal advocacy, but because of their judicial connections, fancied or real. “The ultimate question some litigants ask their counsel is not ‘Is my case meritorious?’ but ‘Do you know the judge?’”, he said. 

In fact, during the movement control order period, I managed to sit down to watch a drama series about a Chinese judge, Song Ci (1186–1249) during the Song Dynasty. As a presiding judge in criminal trials, he would often undertake his own forensic investigation at crime scenes. Known as the world’s first anthropologist and forensic scientist, he later reduced his own experiences and findings into a book entitled Collected Cases of Injustice Rectified. 

He was a fearless judge. However, when undertaking an investigation into a murder case which the Emperor’s son-in-law was implicated, Song Ci discovered the royal son-in-law was blackmailed by a trader who had drugged him into committing the murder. Song Ci then chanced upon eight huge boxes kept by the trader on his premises. Each box contained inculpatory evidence of almost all the other judges and senior officials of the Emperor. This explained why the trader was untouchable. He then had the eight boxes taken to the palace and opened before the Emperor. As he explained the contents of each box to the Emperor late into the night, the Emperor pretended to fall asleep. He then woke up the Emperor who asked Song Ci to return home. Just as the disappointed Song Ci was leaving the palace grounds with the corrupt judges waiting there, he saw huge flames appearing in the sky. Apparently, the Emperor had all the boxes burnt and destroyed together with the contents. The panicky judges heaved a great sigh of relief. He then confronted the Emperor who commended him for a great investigative job and said Song Ci would be promoted the next day. All the corrupt judges praised the Emperor for his wisdom. The next morning, Song Ci did not return to palace to accept the promotion. Instead, he returned all the paraphernalia of a judge to the Emperor and resigned, broken-hearted and disillusioned with the system. The Emperor grimaced in sadness, thinking that what he did was necessary to preserve the dynasty. Naturally, with the destruction of evidence, the corrupt officials went after the trader like a pack of bloodthirsty wolves and killed him. But the rot had already set in and that was the beginning of the collapse of the Song dynasty. 

The moral of the story is that unless there is independence of the judiciary and protection by the state for good judges such as Song Ci, the rule of law cannot be upheld which will eventually cause the institutions of government to collapse. 

The judiciary also must be defended by an independent and fearless Bar. They are the twin pillars of the rule of law. My concern is that the threat to the independence of the Bar can be greater from within than without. One of these threats is the mass production of lawyers who are ill-equipped and incompetent due to poor legal training and education. 

As Ramani said during the elevation proceedings of Suffian as a High Court Judge on October 26,1961: “It was Lord Erskine who declared that whatever may be the encroachments of Parliament on personal liberty so long as you have an independent judiciary, and you are assured of the integrity of the Bar, they together will be the sheet anchor to hold the ship of state to her course amidst contending storms.

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