43. Ambiga Sreenevasan

Excerpts from the speech by President of the Malaysian Bar, Ambiga Sreenevasan, at the 14th Malaysian Law Conference.

Central to the administration of justice and the function of lawyers, is the rule of law. There has been a resurgence in the discourse on the rule of law and its importance, not only in respect of the administration of a country, but in a nation’s economic and social growth. This resurgence is important as we see the rule of law coming under attack in nations around the world. In the words of Matin Luther King, ‘Injustice anywhere is a threat to justice everywhere.’

Interestingly, two out of the five principles of our Rukunegara refer to the Law. They are,

• Keluhuran Perlembagaan (i.e. supremacy of the Constitution) and
• Kedaulatan Undang-Undang (i.e. the Rule of Law)

So what is this concept of the Rule of Law? Simply put, it means that no-one is above the law including the government. This is unlike in the case of Rule by law where the law is an instrument of the government and the government is above the law. The rule of law is built upon two essential components.

1) The Submission of all to the Law.
2) The Doctrine of Separation of powers.

Some of the indicators that the Rule of Law operates and functions well in a society are :-

- An independent and impartial judiciary. - Adherence to the principle that there must be equality before the Law
- The existence of a strong and independent legal profession.
- Speedy Access to justice for all
- The operation of the presumption of innocence
- The right to a fair and public trial

Of all the institutions in a democratic nation, the most vital is that of the Judiciary. It is the Judiciary that breathes life into the cold print of the Federal Constitution making meaningful all those guarantees promised to the citizens. It is the Judiciary that enlivens the spirit of the Constitution. It is the Judiciary that upholds the rule of law. It is to the Judiciary that an individual or a mighty corporation turns in seeking to protect and enforce their rights before a fair and impartial arbiter. The Government and the Bar are in agreement that a strong, independent and impartial Judiciary is critical to our progress as a nation. Recently we have seen the credibility of the Judiciary being brought into question and our system of appointments and promotions being brought under scrutiny. We have consistently called for the setting up of a Judicial Appointments Commission and I repeat that call. But that is not all. There is an issue of public confidence that we must address. Public confidence is a fragile commodity.

I quote the late Tun Mohd Suffian, the former Lord President when he said :-

"It is not enough for Government to have confidence in the judiciary if the public does not. It is not enough for courts only to go through the motion of trial. It is not enough if justice seems to be done if in fact justice has not been done."

The 1988 Judicial Crisis and many subsequent events did much to erode public confidence in the Institution of the Judiciary. It is therefore important for a process of truth and reconciliation to take place in this regard. This powerful process allows all those involved to confront the truth of what took place and to then move on. The Truth and Reconciliation Commission in South Africa is testament to the empowering nature of this process.

Independent institutions are not a sign of weakness of the government but a sign of its strength. Finally, when all is said and done, the upholding of the Federal constitution, the framework of the Nation, and democratic principles are only as good as the institutions provided for under the Federal Constitution. As such, there is a perennial need to maintain and strengthen such institutions.

The Bar Council takes the position that laws relating to detention without trial must be repealed in keeping with the country’s pledge to uphold the universal values in all aspects of national development, and for the promotion of the rule of law and international human rights standards.
The power of detention without trial remains an exception to the norms of any fair, just equitable and democratic society.

There are also currently 4 proclamations of emergency which have yet to be annulled. The Emergency (Public Order and Prevention of Crime) Ordinance was brought into force 37 years ago to deal with a specific violent situation - the racial riots of 1969; a situation which no longer exits. Yet the Ordinance is still being used. The Bar Council calls for the revoking of the proclamations of emergency and a repeal of the emergency ordinances.

Other legislation that requires serious review due to the passage of time and their having outlived their use are the Printing Presses and Publications Act (PPPA), and the Sedition Act. We live in the age of the Internet now. There is little point in controlling the press if it only means that the news will easily find its way into cyberspace. We acknowledge however that there has been an increase in the democratic space in this country but a review of some of these archaic legislation will help to formalise this move.

Malaysia has a long and time-honoured commitment to the cause of international humanitarian law and peace-keeping. We have ratified the Geneva Conventions, and more recently the Chemical Weapons Convention. Over the years we have contributed peace-keeping troops to many war-torn and conflict-ridden areas. Our assistance to Indonesia during the Asian Tsunami and to Timor Leste in her progress towards independence and nation-building also speaks volumes about Malaysia’s important role in international humanitarian efforts. Malaysia now sits on the United Nations Human Rights Council and is Chair of the Organisation of the Islamic Conference.

Yet, despite our obvious commitment to international justice and the rule of law in the international arena, we have yet to sign or ratify the Rome Statute of 17th July 1998 establishing the International Criminal Court (ICC), the first permanent international court before which those who have perpetrated some of the most heinous crimes against humanity like the Milosevics would be brought to justice. To date, 105 countries have ratified the Rome Statute.

We are hopeful that the Government will expeditiously sign and ratify the Rome Statute. As ever, the Malaysian Bar is ready to assist the Government in any way we can in this regard.
In recent years the Malaysian Bar has actively engaged with the Attorney General and the Minister of Law in the area of Law Reform. One of the legislation amended was the Legal Profession Act where amongst other things a discriminatory provision which did not allow lawyers below 7 years to participate in the Bar Council was removed. The Honourable Minister was responsible for facilitating this amendment and we would like to record our thanks to him.

We are also pleased that the Honourable Attorney General now consults us increasingly on proposed legislation. In the past year, the Bar Council has been invited to give its input in relation to certain proposed amendments to the existing law, such as in relation to the Law Reform (Marriage & Divorce) Act, the Limitation Act, and many others.

Apart from forwarding its views to the relevant authorities, the Bar Council further contributes to law reform in many other ways. The Council also pro-actively participated in the 2 Police Commissions. When Parliament set up a Select Committee not long ago to look into amendments and reforms in various areas of criminal law, the Bar Council made written and oral presentations of its views and recommendations to the Select Committee. A number of our recommendations have now found their place in the amended law.

An aspect of the rule of law is the enhancement of access to justice. The Malaysian Bar Council launched its Legal Aid scheme in 1983. Apart from providing pro bono legal services, it also promotes legal awareness. It is an entirely self–funded scheme, administratively financed by members of the Bar who contribute an annual sum of RM100 each. On top of that, hundreds of lawyers each year volunteer their services without charge, to handle and conduct legal aid cases of various types. In the last 2 years more than RM1 million a year has been spent by the Bar on legal aid.

The government also runs a Legal Aid scheme for the poor, namely the Government Legal Aid Bureau. The Bar Council Legal Aid scheme supplements this Government scheme. We are, with the encouragement of the Minister of Law, now looking at ways in which we can work together in providing legal aid more efficiently to the public.

It has been universally recognised that an independent and courageous legal profession is indispensable to the rule of law in a democratic society.

The Malaysian Bar has always acted to uphold the cause of justice uninfluenced by anyone except its own collective conscience.

Anyone who has been in our ranks and has attended our very democratic meetings, will know that only one thing drives the Malaysian Bar and that is the cause of justice. And let there be no mistake. We turn the light of examination on ourselves as much as anyone else. We are concerned about standards about integrity and about discipline in the legal profession. We have an independent Disciplinary Board set up under our Act presently headed by Tan Sri Khalid who is ever watchful over the disciplining of members. We are looking at various ways and means in which to improve our standards. And we have no problem with criticism whether constructive or otherwise because we continually undertake a process of self-examination. In fact we have a special session in this conference that deals directly with these issues relating to the legal profession. We welcome anyone who wishes to raise any issues whatsoever about the profession be it about standards, integrity or discipline to attend and speak your mind.

We value the Judges and Judicial Officers who work tirelessly and uphold the standards and dignity of the Judiciary. We appreciate the burdens of their office. Our criticism is levelled at elements that undermine them and the institution of the Judiciary. When that happens, we will speak and we will defend the institution against those elements. As Lord Denning has said in R v Metropolitan Police Commissioner, ex parte Blackburn " Silence is not an option when things are ill done." We have much to be grateful for in this country, but we speak because we know we are capable of so much more. And it is within our grasp. It is up to us to seize the moment.

To understand our role, I can do no better than to quote C.J. Bhagwati when he said :-

"The essential truth is that the judiciary is an institution. Its business as an institution of governance is larger than the individual profile of a judge. But, it is important to reflect on the constituent elements of this great institution. This institution consists of the Bar and the Judges. While we maintain our personal integrity, it is the Bar that fiercely supports the independence of the judiciary. While we pronounce judgment, it is the diligence and research of the Bar that unfolds in our work. While we express our commitment to the people, it is the Bar that fiercelessly [sic] selects the courses of action which we pronounce upon. Those that fight zealously for the independence of the judiciary must surely know that is not enough. We need to be equally over-zealous to fight for the independence of the Bar. To those who said " hands off the judiciary" I add " hands off the Bar".