The Young Professionals (YP) refer to the response of the Bar Council National Young Lawyers Committee (NYLC) chairman Khaizan Sharizad Ab Razak published by the Malay Mail Online on July 25, 2016 to Kee Mohd Thariq’s article, Steven Thiru shouldn’t pretend that he cares about young lawyers (Malay Mail Online, July 19, 2016) on the pending amendments to the Legal Profession Act 1976 (“LPA”) to be tabled before Parliament in October.
First of all, it cannot be stressed enough that the proposed amendments to the LPA in current form are mere proposals with nothing yet set in stone. It may yet be the case that the amendments will undergo further changes, some or all of which might eventually be acceptable to the Bar Council and NYLC alike. Given this fact, NYLC’s hysterics over the article by our member, Kee Mohd Thariq, as can be clearly gleaned from the tone of their response, is rather overdramatic. We urge the NYLC to argue their position in a dispassionate manner befitting the dignity of the Malaysian Bar, rather than resorting to playing up imaginary fears.
Second, the article in itself, howsoever read, can in no way come close to being a personal attack on the Malaysian Bar President as the NYLC puts it. It is in fact an honest appraisal of the President’s failings in respect of the legal profession, particularly with respect to young lawyers. We lambast the NYLC for the baseless allegation, which we believe to be unwarranted.
Thirdly, as Kee Mohd Thariq is a member of YP and wrote the article in that capacity, YP believes that it is incumbent upon ourselves to respond on his behalf to the allegations made in the NYLC response, which we, to borrow the expression used therein, are similarly constrained to believe border on misinformation, and thus have similar adverse implications for the wider public. Thus, the following paragraphs constitute our rebuttal to NYLC’s response on a point by point basis, and where necessary, we have elaborated further on additional issues of interest mentioned within Kee’s article which the NYLC has failed to respond to:-
- Bar’s partisan stand on issues of the day
The view that the Malaysian Bar dabbles in partisan politics are far from speculative or a mere empty claim as implied by the NYLC, but has been proven in recent times by the occurrence of events such as last year’s infamous Press Release made by the former Bar President, Mr. Christopher Leong, in which he alleged “persecution” of Datuk Seri Anwar Ibrahim after his conviction and sentence for sodomy was affirmed by the Federal Court at the time, a statement which, admittedly, was issued before the grounds of judgement of the said court was even available to be read by the public at large, including the Bar.
Such conduct clearly impugned upon the competency of the Malaysian Courts to adjudicate matters and brought the administration of law and justice in Malaysia into dispute. Despite the huge implications surrounding this huge error on Mr. Leong’s part, regrettably, neither the former Bar President nor the Bar Council apologised despite more than 100 members of the Bar urging them to collectively do so, and they continue to refuse to do this. This particularly manifest action of the Bar Council indicating clear partisanship on its part is thoroughly unbecoming, unprofessional and is the source of continued embarrassment for members of the Bar who believe in impartiality, decency, credibility, proper decorum and standards of conduct. It has become a black mark on the standing of the legal profession in the eyes of the Malaysian public.
There is also the highly unprofessional conduct of the current Bar President, Mr. Steven Thiru in his response to two well-known corruption investigations (one of which has entered the prosecution stage) affecting both sides of the political fence. Vide three Press Releases dated 8 July 2015, 22 March 2016 and 11 July 2016 respectively, Mr. Steven has essentially framed two different standards of accountability for politicians holding public office depending essentially on which side of the fence they stand.
While Datuk Seri Najib Abdul Razak, our Prime Minister, must take an immediate leave of absence without any preconditions pending the completion of investigations into the alleged improprieties surrounding 1MDB, the Bar Council has seen fit to opine that the Chief Minister of Penang state, Lim Guan Eng, not only need not have done so in the absence of any “strict legal requirement” but is now even totally absolved of even any moral obligation to do so as the prosecution stage has commenced, never mind that there is no conviction or acquittal yet! Double standards indeed.
Although we believe that everyone is entitled to their own personal views on political matters, such views should not be projected unto the Malaysian Bar. The Bar is a collective of many different minds and personalities and its President should know better than to use his position as a platform to air his own personal views.
Many members of the Bar as well as those of the wider public at large are aware of these occurrences, as well as many more on the part of the Bar Council, and this is what fuels the perception on the partisan leanings of the Bar, and certainly not “the continued allegations of those such as Mr Kee,” This kind of blatant partisan conduct on display by the Bar is certainly not sanctioned by our Constitution, and for the NYLC to make an empty reference thereto and simply dismiss this thoroughly valid and substantial concern, we regret to note, is an insult to the collective intelligence of those who caution against this, for the benefit of the Bar’s own credibility and the right of the general public to an unbiased legal opinion alike.
- Increase of quorum for Bar AGMs
Contrary to the claim of the NYLC that Kee Mohd Thariq fails to appreciate the history behind the AGMs of the Malaysian Bar, he and indeed the rest of YP have done our research thereon, and we find that Mr. Steven Thiru’s statement claiming that increasing the current quorum for AGMs of the Malaysian Bar from 500 members to 4,000 renders the Bar Council’s effective cession is not only preposterous, but also incorrect. There is precedent, prior to the 2006 amendment to the LPA establishing the current quorum, indicating that this higher number is indeed achievable, per the reconvening of the 59th AGM of the Bar back in 2005, where 3,027 members attended thereby ensuring quorum was reached. This was hailed by the Bar President at the time, Yeo Yang Poh, as vindicating the ability of members to rise to the occasion and The Star’s news report on the same at the time is archived right at the Malaysian Bar’s own website. If members of the Bar rose to the occasion back then, there is no reason why they cannot do so again.
But interestingly, this precedent was never alluded to by Mr. Steven Thiru nor by the NYLC in their response to Kee’s article. Further, the notion that the Bar Council will somehow close shop as a result of a lack of quorum is in contrast to the current Bar President’s assertion as reported in the Malay Mail Online on July 15, 2016 that the highest attendance the Malaysian Bar has ever secured in its history amounts to a measly 1,906 members. Why the discrepancy? Kee omitted reference thereto in his article, as it was thought appropriate as well as considerate, to allow Mr. Steven as the Bar’s President the opportunity to explain this incongruity, but alas, disappointingly, not only has he failed to do so, but it appears that the NYLC wishes to perpetuate this myth on his behalf.
- Foreign investors and the Bar
That investors, unlike as with the judiciary of a nation, do not care whether a legal professional body such as the Malaysian Bar is, as a whole, independent or otherwise is pretty much accurate, and it is disingenuous of the MYLC to throw into the mix legal due diligence undertaken by individual or groups of lawyers, duly hired by investors based on solely their own unique professional competencies, abilities and circumstances, and not their viewpoints. This is obviously an attempt at obfuscation.
Legal due diligence by lawyers does not have the goal of holding governments to account – this kind of diligence is undertaken by and is the role of members of parliament in a democracy, and is not the duty of privately hired legal help. Legal due diligence, in reality, is merely an inquiry into the legal and regulatory compliance of entities such as corporations, societies and other bodies corporate of interest and/or concern to the investor.
Further, investors have control over and direction of any legal due diligence undertaken by lawyers, unlike as is the case with courts and tribunals. So while the latter must be independent to ensure fairness in decision making affecting such investors, the former, do not. The NYLC’s conflation of two very different types of due diligence suggests deliberate muddying of their respective divergent roles or a lack of understanding of our national legal framework.
- Elections to the Bar Council and State Bar Committees
We regret yet again a misrepresentation by the NYLC this time on why exactly movements such as Bersih and the Malaysian Bar by extension support the abolition of postal votes in respect of general elections. These are in no part due to, as the NYLC puts it, the Election Commission making the criteria unduly narrow, overly bureaucratic and failing to widen the franchise. It is because the postal votes are and indeed have been subject to tampering by officials in charge of tabulating the votes, as can be gleaned from the statements and resolutions of these organisations opposed to postal voting, issued time and again by them.
Likewise the same concern is had with respect to elections to the Bar Council and, as postulated by the Attorney-General Tan Sri Mohamed Apandi Ali in his article published by Berita Harian on July 4, 2016, 50 votes cast during the elections held to the Bar Council for the 2007/2008 session were held to be fraudulent and yet nothing was done, and the continuing inaction in this regard by the Bar, means that this fear is not unfounded.
The disquiet amongst members is further compounded by the staunch refusal of the Malaysian Bar (unlike Election Commission officials) to allow independent third party monitors to observe live counting of the votes, and subjects candidates and their representatives the ability to do so only vide a pathetic live video feed, and even then after executing a letter of undertaking, which is not a legal requirement in the LPA or any other written law. The act of the Bar in cutting the live feed in response to one candidate, M Reza Hassan’s, refusal to sign the undertaking and barging into the room where the feed was shown during the tabulation of votes for the 2014/2015 session is cause for further alarm in this regard.
The NYLC’s contention that to ensure free and fair elections the current system must remain, cannot be further from the truth. There is simply no accountability. There are no checks and balances. The current postal voting system is the furthest thing from free and fair. Just imagine: the Bar Council themselves are the one counting the votes unsupervised!
- Representation of young lawyers within the Bar
Unlike evidently the NYLC, we do not have access to the amendments to the LPA as presently proposed, and cannot verify for ourselves NYLC’s claim that a member will have less influence on the outcome of the elections if they are enacted, and neither can anyone else. Are we expected to take this claim at face value?
But in any event, free and fair elections can only come about by one method of voting – that of secrecy of vote ballot papers cast in ballot boxes situated in polling stations, as is the case with general elections. This need not involve high costs – the existing offices of the State Bar Committees can serve as polling stations, and a designated day or number of days can be set in order for members to come and cast their ballots, subject to the same requirements practised in a general election i.e. registration and safeguards against double voting such as by requiring the use of indelible ink.
This method of secret vote by ballot, and not by postal votes delivered to the Bar Council or, laughably, by show of hands for State Bar Committees as is practised currently, ensures greater reliability compared to the present system of allowing just about anyone to return a postal ballot within a month’s time frame. In fact a demonstrably successful running of this system by the Malaysian Bar could serve as an example and catalyst for Election Commission officials to mend their ways in the conduct of general elections more than any protest or rally ever could.
- Contribution of young lawyers
While Kee and other members of the Bar with YP are grateful that section 46A(1)(a) of the LPA that disqualified members of less than seven years’ standing from serving in the Bar Council and State Bar Committees is no more, one right move by the Bar in this regard does not excuse a history of injustices perpetrated upon young members of the Bar by the Bar Council whether successful or otherwise.
For instance, while we commend the Bar Council for its support leading to the repeal of the LPA section mentioned above, we are also mindful that it is the same Council who not too long ago, also proposed that the establishment of new law firms be limited to members of at least seven years’ standing as well. Thankfully this proposal was shot down in a past AGM, in no small part due to the efforts of young lawyers in opposing the proposal back then.
The NYLC is right that young lawyers are the vanguard of the Malaysian Bar. Being the future of the Bar, it is their responsibility therefore not to parrot the words of or defend the actions of the Bar Council or its members as they do with their response to Kee’s article, but to act as a check on the Council’s excesses by genuinely making known the concerns of young legal practitioners and to rebuke the Council accordingly when its members patronise young lawyers the way they do currently.
- Meritocracy or representation?
Standing for office in the Bar Council is as much about representation as it is about meritocracy, and perhaps even more so. If the amendments result in permanent places on the Council for those of less than 10 years’ practice, thus ensuring that the concerns of young lawyers are heard within the Council and their needs duly met, we see no reason to object to the same.
Besides, if merit were the sole criterion in running for office, then all concerns and interests of different segments of the Bar membership, which is broad based consisting of members of different classification based on not only age but race, religion, gender and the like, will fail to be addressed by the Malaysian Bar and this would result in widening inequality between Bar members based on those classifications. An amendment taking into account age, as well as other concerns, would reflect the spirit of Article 8 of the Constitution affirming equality before the law and the prohibition of discrimination on the criteria set forth in Article 8(2) specifically.
- CPD Scheme
The imposition of the Continuing Professional Development (CPD) scheme reflects in many ways the failure of the current system of administration practised within the Malaysian Bar. Having tried to impose the scheme for many years at each AGM but failing to muster support, the Bar Council has sought to persist with its introduction, apparently refusing to take no for an answer, and in its latest incarnation, tabled before the recently concluded Bar AGM held earlier this year, the scheme will apply progressively, affecting only young lawyers called to the Bar after 2011, being some 6,000 members of the Bar.
Yet out of some 700 members of the Bar who attended that AGM, some 300 had left earlier before the debate and vote was held on the said motion, and out of 589 members left voting, the motion was carried 295 to 294, in short, a mere 1 vote decided the fate of all 6,000 young members who are to be forced to attend this scheme or face having to pay a hefty fine of RM500. The NYLC’s endorsement of this travesty betrays its lack of respect for the principle of democracy that is a hallmark of decision making practised within this country, as enshrined in our Constitution.
How can any self-respecting body seeking to govern its 17,000 members, make decisions based on meetings attended by a mere 500 of these members, when these decisions affect all or large portions of other members? This is precisely why the quorum needs increasing – to make the attendance and vote more democratic, representative and in accordance with contemporary situations and needs. It is the responsibility of the Bar Council to make this quorum work for the benefit of all Malaysian Bar members, as it has in the past and can do so again, if it just stops moaning and immediately embarks upon the task at hand.
- Bar’s failure to uphold human rights
The NLYC has failed to respond to Kee’s mention of an earlier article written by another member of YP, Faidhur Rahman Abdul Hadi, titled Malaysian Bar decision making process in serious need of reform (Malay Mail Online, July 26, 2016), for which he has received letter from the Bar’s secretariat reprimanding him regarding the same for disclosing to the public at large Malaysian Bar AGM proceedings (despite there being no law to the contrary of this) and warning him not to do the same again, in total denial of his freedom of speech and expression pursuant to Article 10(1)(a) of the Constitution. If the Bar Council supports young lawyers, as the NYLC postulates, the Bar Council would not have issued such a letter. This makes a mockery of the Bar’s supposed reputation as a defender of human rights. Even the contents of the article, which touched upon the human rights implications of the CPD scheme, was all but ignored.
While it is clear that while voluntary learning schemes should be provided and attendance thereon encouraged, making the same compulsory for members amounts to none other than forced labour, and is a violation of fundamental liberties, in particular Article 6(2) of the Federal Constitution, Article 4 of the Universal Declaration of Human Rights (UDHR), Article 8(3) of the International Covenant on Civil and Political Rights (ICCPR) as well as the International Labour Organisation (ILO)’s 1930 Forced Labour Convention and 1957 Abolition of Forced Labour Convention. It is also arguable, for the most part based on the discourse present at the recent AGM suggesting that young lawyers are somehow in need of a compulsory learning scheme due to their supposed unemployability and inability to practice as counsel, that the scheme also amounts to degrading treatment of young lawyers, which is prohibited by Article 5 of the UDHR and Article 7 of the ICCPR.
Rather than be concerned for Faidhur’s right to speak up as a young lawyer or even the welfare and rights of many of the 6,000 young lawyers about to be penalised unnecessarily for being forced to attend a scheme they neither have any interest in or desire to be a part of, the NYLC has chosen to defend the Bar Council’s action in the flagrant disregard of an individual’s free speech rights and partake in the commission of what potentially or at least arguably constitutes one of the most systematic violation of human rights perpetrated in Malaysia committed by a body against its members in recent times, and against the ban on forced labour at that. Thus Kee, as well as other young members of the Bar can be excused if they are not impressed by any call to provide suggestions and input to address the issues faced by members of the Bar internally by joining any Malaysian Bar or State Bar Committee. The administration of the Malaysian Bar is in such a bad state that only external pressure, not internal participation, can result in meaningful change and it is to that end the Malaysian Bar must be reformed.
- Bar’s selective view of what amounts to justice
It is odd that the NYLC considers employee and consumer rights mere party political issues, but the welfare of political party leaders such as Datuk Seri Anwar Ibrahim and Lim Guan Eng are not. That the former are considered non-issues while the latter are, speaks volumes about the misplaced sense of priorities the Bar has, and its failure to appreciate the true meaning of the terms administration and justice, or even the meaning of the term justice as used in section 42(1)(a) of the LPA. This would suggest that an amendment is needed to clarify what is meant by the term used in section 42(1)(a) of the LPA as well, which unfortunately, isn’t included in the proposed reforms forming part of the proposed LPA amendments to be tabled in the coming months.
- Independence of the Bar
While the Bar is statutorily bound to make decisions free of external influence by virtue of section 42(1)(a) of the LPA as supported by principle 24 of the of the Basic Principles on the Role of Lawyers agreed in Havana, Cuba in 1990 and by the UN Human Rights Council in 2015, the NYLC conveniently forgets the existence of section 42(1)(l) of the same law, which states that the Malaysian Bar must “promote good relations and social intercourse amongst members and between members and other persons concerned in the administration of law and justice in Malaysia,” as well as principle 25 of the Basic Principle on the Roles of Lawyers, which states that “Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics,”
This would mean that the appointment of two (2) Government representatives in the Bar Council is not a limitation on the independence of the Bar (notwithstanding that the Bar is in fact not independent even as currently constituted) but in pursuance of greater cooperation between legal practitioners and other bodies concerned in the administration of justice, which necessarily includes the Government.
While the NYLC takes a myopic and jaundiced view of the proposed amendments to the LPA to be tabled this October, we at YP remain positive as to the outcome of the amendments, which would clearly enhance democracy, ensure better representation and more reliable and transparent methods of voting, thus benefitting young as well as senior members of the Malaysian Bar alike. YP thus stands with Kee in support of the proposed reforms, and calls upon all affected parties to uphold the speedy passage and implementation of the same at the next session of the Malaysian Parliament.