Threat to Malaysian Bar’s in­de­pen­dence

The Sun (Malaysia) - - SPEAK UP - BY GURDIAL SINGH NIJAR

should be given the free­dom to do what they want to do within the lim­its of the law.”

The first-listed duty of the Bar un­der the LPA is to “up­hold the cause of jus­tice with­out re­gard to its own in­ter­ests or that of its mem­bers, un­in­flu­enced by fear or favour”: LPA, sec­tion 42(1)(a).

As long ago as 2010, our high­est court de­clared: “The ob­ject (of the LPA) is clearly that the af­fairs of the Bar be man­aged by mem­bers of the le­gal pro­fes­sion who are not only pro­fes­sion­ally in­de­pen­dent but ap­pear to the out­side world to be so. The em­pha­sis is an in­de­pen­dent Bar, which is not sub­ject to ex­ter­nal in­flu­ences of a non-pro­fes­sional char­ac­ter.” Si­varasa Rasiah v Badan Peguam Malaysia.

There is lit­tle doubt that the govern­ment is some­times irked by the stance the Bar Coun­cil takes. Such as en­act­ment of laws that do not quite square up with no­tions of the rule of law, fair­ness, jus­tice.

Quite nat­u­rally, in such cases, the tar­get is the law and its pro­po­nent – the govern­ment. In this con­text the govern­ment should stand the re­spect­ful scru­tiny of these laws by a body that is pro­fes­sion­ally en­dowed to do so. To take um­brage of its ac­tions seems to me a puerile dis­play of mis­un­der­stood no­tions of the role of var­i­ous stake­hold­ers in a func­tion­ing democ­racy.

It sig­nals an at­tempt to es­tab­lish a com­pli­ant and sub­servient cit­i­zenry. This not only im­pairs the rule of law but worse, stul­ti­fies the en­er­getic dy­namism re­quired of a coun­try forg­ing ahead into the 21st cen­tury.

Our coun­try is go­ing through painful throes of seek­ing to re­store its past glory days. The govern­ment would en­hance its stand­ing im­mea­sur­ably by tak­ing an en­light­ened ap­proach to re­store its cred­i­bil­ity.

Im­pair­ing the in­de­pen­dence of a pro­fes­sion that could be en­listed as of­fi­cial­dom’s nat­u­ral ally, is cer­tainly no way for­ward.

An em­i­nent ju­rist once wrote: One of the fea­tures of the law that tends to ir­ri­tate other sources of power par­tic­u­larly politi­cians, the wealthy and govern­ment of­fi­cials is the de­mand of the law’s prac­ti­tion­ers – judges and lawyers – for in­de­pen­dence. Those who are used to be­ing obeyed and feared com­monly find it in­tensely an­noy­ing that there is a source of power that they can­not con­trol or buy – the law and the courts. (Jus­tice Michael Kirkby of the apex High Court of Aus­tralia.)

It is truly naïveté, smack­ing of un­abashed folly, to ex­pect democ­racy and the rule of law to pre­vail with­out as­sur­ing the law’s prin­ci­pal ac­tors – judges, lawyers and law aca­demics – a very high mea­sure of in­de­pen­dence of mind and ac­tion. Surely this would be cut­ting one’s nose to spite one’s own face.

Gurdial, a for­mer law pro­fes­sor, is cur­rently a prac­tis­ing le­gal con­sul­tant. Com­ments: letters@the­sundaily.com

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