(Parliament, Monday): The Malaysian Bar is governed by the Legal Profession Act 1976(LPA).

The objects and the powers and the purpose of the of the Malaysian Bar are inter alia : -

(a) to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour;
(b) to maintain and improve the standards of conduct and learning of the legal profession in Malaysia;
(c) to facilitate the acquisition of legal knowledge by members of the legal profession and others;
(d) where requested so to do, to express its view on matters affecting legislation and the administration and practice of the law in Malaysia; etc
 

The Malaysian Bar is an Independent Bar which is dedicated in providing continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public and serving the public and the profession by promoting justice, professional excellence and respect for the law.

Many of the proposed amendments on the LPA are overdue for a long time. The proposal to reduce the Annual General Meeting (AGM) quorum from the present 20% of the total membership to 500 members is most welcome. The present membership of the Bar is more then 12,000. In the past, many AGM’s had to be adjourned due to the stringent and ridiculous requirement of 20%  of the total membership for a valid AGM. Section 46(1)A of the LPA  is now proposed to be repealed. Many cases have been filed in court to challenge this provision but were unsuccessfull. Young lawyers of the Bar (those below 7 years of practice at the Bar) have been advocating for this provision to be repealed for a long time. Last year a few meetings were held between the Bar and the present defacto Law minister which has now cumulated to these amendments. With this proposed amendment, the requirement that a person must be or has been an adovacate and solicitor for a period of not less then 7 years in order to be eligible for a membership of the Bar Council or a Bar Committee is removed.

How ever the government has not gone far enough in the proposed amendments. For example the failure to delete the restrictive provision of Section 46(1) B and C of LPA.  As it stands Section 46(1) B, and C bars a person who is either an elected member of  House of Parliament or state assembly or any one who holds office in a trade union or any political party. This provision is unfair and undemocratic. Lawyers are mature and should be given their right to elect who they feel who can articulate for them. This section is archive and is out dated provision which the government should have the foresight to do away with.

Admission  as an Advocate and Solicitor in special Cases

The recent application of Cherie Blair the wife of the Prime Minister of Britain to appear as lead counsel in the Malaysian courts was dismissed. Tun Ahmad Fairuz the Chief Justice acknowledged that Cherie Blair had the special qualifications or experience as required by section 18 of the act. But however on the issue of local expertise under section 18(1)(b)  the court said there such experts were available in Malaysia and thus disallowed Cherie Blair to appear in out Malaysian Courts. 

Cherie is a Barrister and a Queen Counsel. She is also a Recorder( a permanent part time judge) and Chancellor of Liverpool John Moores University and governor of London school of Economics and the Open University. She sspecializing in human rights law, public and private law public international law, in this capacity has sometimes represented claimants taking cases against the UK government.

With the above credentials it’s a real surprise Cherie was disallowed to appear for her clients in Malaysia. A total policy of non interference in choosing one’s lawyer should be the rule of the day. Why should the LPA or the Courts decide who best or which lawyer is the best that can and should represent a litigant? A total review of Section 18 is required. In fact this provision is out dated in the modern era of globalization section 18 is untenable.

The English Guardian newspaper noted that the last time Cherie Blair had been in Kuala Lumpur, more than 1,000 luminaries of the local legal establishment queued to hear her deliver a lecture about the role of the judiciary, an event organized by a leading member of the country’s royal family.  

In fact if Cherie had been allowed to appear in Malaysian Courts this would have enhanced the image and confidence in the Judiciary. By disallowing a foreign lawyer who is competent to appear and argue her clients case is definitely sending wrong signals to the legal fraternity and the public at large. The decision of our apex court ia repugnant and unacceptable in dispensing justice. Where and what justice is there for litigants to engage any lawyer they want?

Besides the Malaysian public also lost an oppourtunity to get close to the British first lady. Malaysia cold have exploited the immense publicity she generates. Toursim Malaysia lost a chance, so did the country’s best hotels and shopping centers. If we had allworked together we could have used her presence to enhance Malaysia’s international profile.

We have missed a golden opportunity because of narrow thinking on our bench.

Need to establish a Permanent Judicial Commission

The present system of selection, appointment and promotion of Judges is neither transparent nor accountable. Also the present system can be manipulated. We need an open system where all judicial selection, appointments, promotion and transfer of Judges can easily be ascertained and verified. Former Attorney General Tan Sri Abu Talib has even said in a recent interview in Mingguan Malaysia I quote

“saya ada diminta memberikan pandangan mengeni beberapa orang yang dicadang mahu dilantik sebagai hakim, dan lepas saya memberi pandangan, mereka itu tidak jadi dilantik. Tetapi apakala saya bersara nampaknya mereka ini telah dilantik dan sekarang menduduki tempat yang sangat tinggi?English translation- “I was asked for my views on several persons to be appointed as judges, and after I gave my views they were not selected. After I retired they have been appointed as Judges some even occupying top levels in the Judiciary.

The statement by Abu Talib is shocking and disturbing. The Government must state who are this Judges and why they were selected? What special situations have changed for those who were disapproved were then selected when Abu Talib retired. The confidence in the Judiciary would be drastically eroded unless an open and frank disclosure of all selection appointmen and promotion of Judges is disclosed.

In America they have the Wisconsin Judicial Commission which applies in all the states. Their task is to enforce high standards of Judicial behavior, both on and off the bench, without compromising judicial independence. They strive to maintain public confidence in the judiciary by providing a forum for the expeditious and fair disposition of complaints of judicial misconduct and disability.

Allegations of impropriety by Malaysian Judges are in the air again. In recent days there has been much discussion on whether the Malaysian Judiciary has been tainted by corruption. Even a former judge Syed Idid came forward to mentioned that he forwarded a petition in 1996 to the then Chief Justice(Tun Mohd Eussof Chin). In the petition 12 Judges were said to be involved in corruptive practice. Of the 12, some are still serving as Judges in the country. Syed Idid was eventually forced to resign as a Judge and consequently lost his pension and said be became an “invisible man to many"

Tun Eussof Chin when commenting on the above allegation said the matter was extensively investigated by the ACA. The former Attorney General the late Mokthar Addullah had said Syed Ahmads accusations were baseless and warranted no further action. Present defacto Law Minister Dato Seri Nazri  agreed with Eussof Chin and reiterated “there was no need to probe further? How ever Tan Sri Abu Talib is on record to have said that the allegations were never properly investigated. Syed Idid has further mentioned that when he met Abdullah( former AG) in 2000 he asked Abdullah “was there a pistol at your neck when you did what you did to me?Abdullah replied “No, it was a cannon?

The people have a right to know now who are the 12 names mention in the letter. Have they retired, or were they prompted, are they sitting on the Federal Court, if so how is their conduct? These are issues od great public interest and the government is bound to explain perhaps in the form of a white paper. The allegations have cast a big and dark cloud over the judiciary, the government must act now to clear the doubts.

Mr.Speaker, we inherited a great judiciary upon independence, names like Raja Azalan Shah now HRH Sultan Perak, tun Suffian ,Eusofee Aboolcader, Peh Swee Chin, and many more were held in high esteem. The people were proud of them and venerated them. Today the people hold our Judiciary in contempt. They sneer at the very mention of the court. Allegations that Judges can be bought have appeared in newspapers and astonishingly nothing is done. No investigation. In fact responsible judges and minister rush to scream “case closed?don’t open it. Is this behavior that will build confidence or further erode the confidence people should have in the judiciary.

Who is speaking and telling the truth? To get to the bottom of all this allegations which have tarnished the Judiciary it’s only appropriate if a Royal Commission of Inquiry is establish to fully investigate the allegations of wrong doings in the Judiciary. The setting up if the Commission would throw into light the wrongs if any and mechanism could be found to address the mistakes. Failure to set up a commission would only result in the man in the street to think the government of the day has some thing to hide.