Fallacies spun by critics of the Bar — LoyarBurokkers (loyarburok.com)

MAY 22 — The Bar Council and the Malaysian Bar (“the Bar”) have been criticised recently as being pro-opposition. This is because of the Bar’s press statements and its extraordinary general meeting resolution regarding the police brutality shown at the Bersih 3.0 sit-down rally. The common theme adopted by critics of the Bar is that the Bar was not fair, or even-handed, as the Bar were more critical of the police than it was of the other parties involved.

Some of the more popular criticisms were summarised in Roger Tan’s article “Unswayed by fear or favour” which was also published in the Sunday Star on May 20, 2012. In summary, he says the following:

1. The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.

2. The Bar had prejudged the issues by passing the resolution because by doing so “the Bar had already come to a conclusion that all those acts listed therein had been committed by the police”.

3. The Bar should have demanded an apology from Datuk Seri Anwar Ibrahim because “it was his men who were reportedly the ones who removed the barrier” which was “the trigger point”.

This statement is written immediately in response to Roger Tan’s article, but also addresses others who have been critical of the Bar on this issue. We intend to address the second criticism first, then the third and first criticisms. Our reason for this will become apparent as our reply develops.

Unswayed by fear or favour

The Sunday Star
by Roger Tan

As much as we do not like the judiciary to be perceived as pro-government, we also do not want the Bar to be perceived as pro-opposition.

ON May 11, the Malaysian Bar passed a motion containing 12 resolutions related to the April 28 Bersih 3.0 public assembly by an overwhelming majority. The decision of the House with 939 votes in favour and 16 against is to be respected. The argument that it is not representative of the 14,000-member Bar has no basis whatsoever as Section 66 of the Legal Profession Act, 1976 (LPA) is clear, that is, a motion is carried if a majority votes in favour of it.

With that above overriding principle in mind, let me, however, put on record the reasons, whether rightly or wrongly, why I could not support the motion.

First and foremost, it must be acknowledged that Resolution (12) was amended to include, inter alia, that (1) the Bar is concerned by and does not countenance any acts of violence in a public rally and that such action by participants is not an appropriate response to the police; and (2) the Bar is equally concerned by reports that certain persons had crossed through the police barriers to Dataran Merdeka.

But this is a complete opposite of the language used to condemn police brutality and the manner in which the assembly was handled by the police on that day. I felt that merely expressing concern against the other law breakers is not strong enough. The Bar, in my view, must be seen in the forefront in upholding the rule of law regardless of whether they were police or protesters who had broken the law. If the Bar wanted to inveigh and condemn police brutality, the Bar must also do likewise against actions of those protesters who had behaved more like rioters and anarchists in assaulting policemen and jumping on and damaging police vehicles.

Secondly, I did not want the Bar to prejudge the issues. The way Resolution (1) was worded, it appears that the Bar had already come to a conclusion that all those acts listed therein had been committed by the police. On the other hand, Resolution (12) was worded very carefully to state that the breach of police barriers was based on reports.

As lawyers, we are trained that even if we have witnessed someone shoot another person, it does not mean the former is automatically guilty of murder. There could be other extenuating factors that require further investigation.

Think before you tweet

The Sunday Star

by Roger Tan

 

If not used wisely, tweeting obviously carries dire consequences, both civil and criminal, because of its limitless reach in this borderless world.

IN what appears to be the first case in Malaysia, the High Court at Kuala Lumpur ruled last Friday that a journalist had to pay half a million ringgit to a businessman as damages over two defamatory tweets.

The Sun columnist R. Nadeswaran was sued by businessman Datuk Mohamad Salim Fateh Din in his personal capacity as the two defamatory tweets sent on July 12, 2010 and December 22, 2010 were sent out from his personal Twitter account.

The first tweet which questioned Mohamad’s Pakistani heritage was sent to one “tonypua”. The other, which libelled Mohamad as a “land thief” and his association with PKR deputy president Azmin Ali, was sent to one “TerencetheSun”.

As Nadeswaran’s Twitter account was not a protected account, that is an open account, all his tweets could be read by the public including those who were not his Twitter account followers.

Justice Amelia Tee Hong Geok Abdullah also ruled that as Nadeswaran did not file any defence to Mohamad’s claim, the former was deemed to have admitted to the latter’s entire claim.

Nadeswaran’s counsel was therefore not allowed to call any witnesses or cross-examine Mohamad’s witnesses with regard to the latter’s claims except on the issue of the amount of damages.

Lawyers must constantly improve skills

The Star

by Roger Tan

The Bar Council will be advocating the CPD scheme at the 66th annual general meeting of the Malaysian Bar, and we, as lawyers, must not be averse to change.

TOMORROW at the 66th annual general meeting of the Malaysian Bar, the Bar Council will attempt for the fourth time, after failing in 2003, 2005 and 2006, to introduce a mandatory Continuing Professional Development (CPD) scheme for all practising lawyers and pupils in Peninsular Malaysia.

Under the proposed CPD scheme, a lawyer will have to chalk up 16 CPD hours or points in each 24-month cycle commencing July 1.

A pupil, on the other hand, has to accumulate eight CPD hours during his nine months of pupillage (training). The CPD points can be earned from participating in a variety of CPD activities - ranging from attending courses and seminars, lecturing, writing law books and articles (such as this I hope) to attending Bar’s general meetings and activities in accordance with a set of CPD Guidelines.

This scheme will be implemented on a voluntary basis for the first two years. After that, failure to accumulate the requisite CPD points within the stipulated period may result in the lawyer not being able to renew his practising certificate for the following year and the pupil not being able to be admitted to the Bar.

In addition to this, the non-CPD compliant lawyer may also face disciplinary proceedings as this may be tantamount to a “misconduct” within the meaning of section 94(3)(k) of the Legal Profession Act 1976 (LPA).