Source: Malaysian Bar
Political Intimidation of the Malaysian Bar Has No Place under the Rule of Law
The Malaysian Bar is outraged by statements reportedly made on 23 and 24 October 2016 by the Minister in the Prime Minister’s Department, Datuk Abdul Rahman Dahlan (“Minister”), that the Government is looking at blacklisting companies that support the pro-democracy movement BERSIH.
The Minister is further reported to have said that “[w]e will also (blacklist) the law firms [who have contracts with government-linked companies, who support BERSIH].… I urge government-linked companies not to directly engage the services of these law firms”, and that the Government “would also look at lawyers who are involved in the movement”.
The comments attributed to the Minister are shocking, and are a manifestation of a further decline in the level of understanding of the rule of law. To advocate that law firms and Members of the Bar be punished for professing and practising the principle of the independence of the legal profession is to hold the legal profession to ransom and to blatantly disregard the rule of law.
The action proposed by the Minister is clearly unconstitutional, as it reeks of prejudice and would contravene the protection against discrimination set out in Article 8 of the Federal Constitution. In addition, Article 5 protects the right to life, which includes the right to a livelihood. Any attempt to victimise lawyers or law firms would impinge upon this fundamental right.
Further, the proposed action contravenes international law. The Universal Declaration on the Independence of Justice (known as the Montreal Declaration) clearly sets out the following (emphasis added):
3.11 The lawyer, in discharging his duties, shall at all times act freely, diligently and fearlessly in accordance with the wishes of his client and subject to the established rules, standards and ethics of his profession without any inhibition or pressure from the authorities or the public.
3.12 Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law, and it is the duty of the lawyer to do so to the best of his ability. Consequently the lawyer is not to be identified by the authorities or the public with his client or his client’s cause, however popular or unpopular it may be.
3.13 No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or represented any client or client’s cause.
Similar principles have been enunciated in the United Nations Basic Principles on the Role of Lawyers. In particular, Principles 16 and 18 state as follows (emphasis added):
16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
. . .
18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
Moreover, these United Nations Basic Principles go further, and affirm the right of lawyers, as individuals, to freedom of expression, belief, association and assembly. Principle 23 states (emphasis added):
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
The apparent mindset that law firms and Members of the Bar can be made scapegoats and be economically blackmailed if they act in any matter that the Government considers objectionable, is alarming and must be condemned.
All right-thinking Malaysians must recoil from the sentiments reportedly expressed by the Minister, which are tantamount to overt discrimination against professionals for their purported contrary political views or affiliations. Professionals, businesses and traders must not be penalised for providing goods or services to those whom the Government arbitrarily labels anti-Government or deems unpatriotic.
The independence of the legal profession is a critical pillar of the rule of law, and must not be threatened by economic sanctions or any other method of reprisal. The Minister’s reported comments are nothing short of political blackmail and intimidation that can never be accepted, let alone tolerated. Such strong-arm tactics have no place whatsoever in the civilised discourse of a robust democracy that respects the rule of law.
The Malaysian Bar strongly urges the Government of Malaysia to distance itself from the remarks made by the Minister, which are bereft of any good sense, and damaging to the international standing of Malaysia.
26 October 2016
 “Rahman Dahlan: Blacklist companies supporting Bersih”, The Star Online, 23 October 2016; “Rahman Dahlan tweets warning, pro-Bersih companies will be blacklisted”, New Straits Times Online, 23 October 2016.
 “Gov’t also looking to blacklist pro-Bersih law firms, says Rahman”, Malaysiakini, 24 October 2016.
 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 (see www.un.org/ruleoflaw/files/UNB