The Role of Lawyers in the Administration of Justice
By Dato' Ambiga Sreenevasan
To many in Malaysian society, the practice of law is simply a means of earning a living. The ideal however requires more of lawyers - that we consciously play a broader role in upholding justice. We are enjoined to do so by tradition, legislation, our social conscience, and a sense of responsibility that arises from the privilege we have of appearing before the Courts of Law.
For much of its history, the Malaysian Bar has been criticised (and sometimes vilified) when attempting to give meaning to that ideal of lawyers upholding the cause of justice in society. Criticising the Bar's "Walk for Justice" in 2007, one Minister suggested that the Bar Council register as an opposition party. Others accused it of insensitivity and arrogance for organising a forum to discuss and propose solutions for the very practical problems of jurisdictional conflicts between the Civil and Syariah Courts that devastate families. I am hopeful however that these views are not widely held.
At the very least, no one can accuse the Malaysian Bar of failing to take a stand on issues that are of concern to the public, even if they are controversial.
Basic Principles on the Role of Lawyers in Society
What does it mean to say that lawyers must uphold justice in society, and how should this role be protected? Some guidance is found in the "Basic Principles on the Role of Lawyers" adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offences ('the UN Principles') in 1990 and intended to assist member states. Among these internationally recognised principles are the following:
(i) All persons, in particular those facing arrest or detention for a criminal offence, must have access to lawyers and legal services.
(ii) The duties of lawyers include not merely advising and acting for their clients, but also upholding human rights and fundamental freedoms.
(iii) The Government must ensure that lawyers are able to perform their functions without intimidation, hindrance, harassment or improper interference.
(iv) The legal profession must have codes of professional conduct and lawyers who breach the code should be subject to disciplinary proceedings.
Access to Legal Representation
There are approximately 12,700 lawyers in Peninsular Malaysia. Access to lawyers is a critical component of access to justice. The concern of the international community that accused persons are particularly vulnerable is not without basis.
In Malaysia, the Criminal Procedure Code ('the CPC') was amended in 2007. A new Section 28A gives an arrested person the right to consult with a lawyer and to have a lawyer present before the police commence any form of questioning or recording of a statement. The meaning of Section 28A is clear. Unfortunately, old habits die hard and the police are often reluctant to recognise this right of arrested persons to have a lawyer present.
Getting legal representation is also a significant problem for the indigent despite existing legal aid schemes. The Malaysian government runs a scheme through the Legal Aid Bureau, formed in 1970 and administered under the Legal Aid Act 1971. It offers assistance in most legal matters to the poor who qualify, but not in criminal proceedings where the accused claims trial.
The Bar Council runs its own legal aid scheme, established in 1983 and funded entirely from a mandatory annual contribution of RM100 each from members of the Bar. Hundreds of lawyers provide their services pro bono to handle a diverse range of cases. Legal Aid centres throughout Peninsular Malaysia aid those who qualify based on a "means test."
The Malaysian Bar's resources however are very limited and while we continue to do what we can, we have always emphasised that the provision of legal aid is the responsibility of the Government. This is in line with the UN Principles.
Protecting Human Rights and Fundamental Freedoms
The UN Principles stipulate that in protecting the rights of their clients and promoting the cause of justice, lawyers must uphold human rights and fundamental freedoms recognised by national and international law.
Our experience in Malaysia has taught us that those in power tend to look upon lawyers who espouse such causes with disdain. The argument goes that lawyers should just defend their clients rather than become the un-appointed defenders of human rights.
A simple response is that section 42(1)(a) of the Legal Profession Act 1976 reminds lawyers that the purpose of the Malaysian Bar shall be "to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour". I have referred to this merely as a reminder because even without this legislative imprimatur, we lawyers would play our role in upholding justice. It is simply part of our duties as legal professionals.
The Malaysian Bar remains true to these ideals. Our history bears testament to this.
During the 1988 Judicial Crisis when certain judges were suspended and removed through questionable means, the Malaysian Bar stood by the institution of the judiciary, offering legal assistance and public support. Twenty years on in 2008, the Bar’s stand was vindicated when the Government acknowledged the wrongs of 1988 by granting ex-gratia payments to the affected judges or their families. In 2007, when most had allowed these events to be forgotten, the Malaysian Bar (together with the International Bar Association, Lawasia, and Transparency International) established a Panel of Eminent Persons to report on the formation, deliberations and findings of the two Tribunals that investigated these judges in 1988. The Panel which included a former Judge of the Supreme Court of Pakistan and a former Chief Justice of India delivered their report in July 2008, unanimously finding that the allegations and findings against these judges were unjust.
On 26 September 2007, about 2000 lawyers together with other members of civil society walked from the Palace of Justice to the Prime Minister's office at Putrajaya to hand over a memorandum calling for the formation of a Royal Commission of Enquiry into the now infamous "Lingam Videoclip". This resulted in the formation of the Royal Commission before which the Bar appeared and played a vital role.
The revelations during the Royal Commission on the Lingam Videoclip provided added impetus for the formation of an independent Judicial Appointments Commission ('JAC') which the Bar had proposed even before the emergence of the videoclip. Progress in this regard has been slow, although recent announcements suggest that the proposal is still being considered. Opponents of an independent JAC seem more intent on protecting their own interest rather than doing what is in the interest of the country. The Bar believes that an independent JAC, with little if any Executive involvement, is critical for the country. It will reaffirm the fundamental principles of the rule of law and separation of powers, upon which this country is built. It will also re-inspire public confidence in the independence and integrity of the Judiciary that has taken a beating in the past 20 years.
These are just some of the more prominent causes espoused by the Bar; the list of all the causes we support is very long and continues to grow. Opposition to the Internal Security Act, protection of the land rights of aboriginal people, legal reform, commenting on draft legislation, promoting understanding of civil liberties – all these and many more are on the permanent agenda of the Bar.
Guarantees for the Functioning of Lawyers
Getting back to the fundamental role of lawyers in representing our clients, I want to note that there has been an alarming trend of lawyers being hauled up for questioning by the police in politically charged cases. These lawyers were doing nothing more than representing their clients. They were summoned for questioning by the police for no better reason than that they were doing their jobs.
To subject these lawyers to questioning when legal professional privilege clearly protects lawyer and client communication is completely unjustified. It amounts to nothing less than harassment and intimidation of lawyers. If lawyers are not protected, it simply means that every person's right to legal representation is compromised and in turn their rights are compromised.
In speaking up without fear or favour, the Bar has faced negative consequences. Our leaders have faced contempt charges, sedition charges, and threats to their safety and security. We have been investigated by the police and subjected to questioning on many issues. Most recently in the forum on conversion, I as the President had to give statements to the police. The Bar has had two of its meetings stopped by court orders.
These acts of harassment and intimidation must cease completely. It is only when one has to face the full force of the law or any abuse of power that one will truly appreciate the need for a fearless and independent Bar.
Those in power must recognise that safeguarding the independence of the Bar is as important as safeguarding the independence of the Judiciary. Justice PN Bhagwati, a former Chief Justice of India, eloquently said that:
"Those that fight zealously for the independence of the judiciary must surely know that is not enough. We need to be equally zealous to fight for the independence of the Bar. To those who said 'hands off the judiciary' I add 'hands off the Bar'".
Disciplinary Proceedings
It is recognised that lawyers are not beyond reproach. Steps must be taken to ensure that lawyers who misbehave are subjected to strict scrutiny and disciplinary action. The Malaysian Bar recognises this and it was at the forefront of the setting up of an independent disciplinary process under the Legal Profession Act. This is a complaints procedure for aggrieved persons and all complaints are scrutinised and given due consideration by the Disciplinary Board which operates independently of the Bar Council.
The Bar Council takes the matter of adherence to legal ethics very seriously. We expect the highest professional standards from the members of the profession. We have continuous professional development programmes to maintain standards and assist our members. We do not tolerate dishonesty and we value public feedback on these issues. We know that our duty to the public must include ensuring, to the best of our ability, that they are protected. Naturally, as in any profession we have errant lawyers. They are however a small percentage of the majority who are professionals serving their clients interests in hundreds of cases in Court and in the corporate world on a daily basis. The public must however be left in no doubt that the Bar Council will not tolerate, nor condone, dishonest or unprofessional conduct.
The Way Forward
The Bar Council has been called many names, most if not all of the time these labels are unflattering. But this is something the Bar has lived with for years. It has not stopped us from doing what we think is right. We know that we are a thorn in the side for those who abuse human rights, ignore the rule of law and violate fundamental freedoms. We make no apology for that, because for those whose fundamental rights and freedoms are abused and who face injustice and inequity because the rule of law is ignored, the Bar has been and will continue to be their strongest advocate.
Dato' Ambiga Sreenevasan has been in practice for 26 years. She is the President of the Malaysian Bar.