Threat to Malaysian Bar’s independence — Gurdial Singh Nijar

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Source: The SunDaily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

THE former de facto law minister, Datuk Seri Nazri Abdul Aziz (now tourism and culture minister), has unmasked the motive behind the proposed amendments to the Legal Profession Act (LPA): to clip its wings. “If you want to monitor, monitor on what?” he asked. He was amazed that this was taking place in present times.

The Bar, he said, has always been critical even during his term as law minister. “It has not weakened the government in any way. We are still here; we are stronger and to me, let them be,” he said.

This roundly repudiates Minister in the Prime Minister’s Department Datuk Seri Azalina Othman’s contention – that the proposed amendments to the LPA would only seek to address “bread and butter issues” like legal exams and the ability of all legal practitioners to speak and read English. Ignoring the fact that two government representatives would sit in the Bar Council; and that the whole election system would be revamped such that, according to the Bar Council president, Steven Thiru, it would impede the Bar’s proper functioning.

On this, Nazri said: “We shouldn’t be interfering in how they want to run their association and all that. Every association 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 Singh Nijar - file pic

Gurdial Singh Nijar – file pic

 

Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.