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".

42. Sultan Azlan Shah

Excerpts from the Opening Address by HRH Sultan Azlan Shah at the 14th Malaysian Law Conference.

We must ever be mindful that written constitutions are mere parchment pieces.

It is important that there must be, in the hearts and minds of those who are entrusted to administer and uphold the constitution, a belief in the values and principles that animate the august document.

I had occasion to observe when sitting in the Federal Court in 1977 that the “constitution is not a mere collection of pious platitudes”. I spoke then of the 3 essential features of our constitution. I said:

“It is the supreme law of the land embodying three basic concepts:

One of them is that the individual has certain fundamental rights upon which not even the power of the state may encroach.

The second is the distribution of sovereign power between the states and the federation,…

The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the executive, legislative and judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.”

In a speech delivered in Kuala Lumpur in April 2004, Lord Woolf spoke of the ‘Rule of Law’,
“The Rule of Law is the rule by the laws that govern a true democracy. They are the laws that provide for a proper balance between the protection of human rights and the interests of the State. Laws which an independent and responsible judiciary can enforce to protect all members of society from abuse of power.”

All countries, including those that are totalitarian regimes, have courts. But as I observed previously:

“The [mere] existence of courts and judges in every ordered society proves nothing; it is their quality, their independence, and their powers that matter.”

In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.

In this regard the principal quality a judiciary must possess is “impartiality”. Lord Devlin said of “judicial impartiality” that it exists in two senses-the reality of impartiality and the appearance of impartiality. He emphasized that the appearance of impartiality was the more important of the two.

Impartiality also means that judges are not only free from influence of external forces, but also of one another. No judge however senior can dictate to his brethren as to how a decision should be arrived at.

It is of the essence of a judge’s character that he must be a person of unquestionable integrity who brings an unbiased mind to his task. Like Caesar’s wife, he should be above suspicion.

It is said that public confidence in the judiciary is based on four evaluating criteria. They are:
(1) the principle of independence of the judiciary;
(2) the principle of impartiality of adjudication;
(3) the principle of fairness of trial; and
(4) the principle of the integrity of the adjudicator.

How does our judiciary measure today against these criteria?

Sadly I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past. In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.

There is no reason why judges with the assured security of tenure they enjoy under the Constitution should not discharge their duties impartially, confidently and competently.

Judges are called upon to be both independent and competent. In these days, judges must ever be mindful that the loss of independence can come from many sources, and not just from the executive. Therefore, judges must piously resist the lure of socializing with business personages and other well connected people. They may discover at their peril that they have compromised themselves in the cases that come before them with the unedifying spectacle of recusal applications.

Nothing destroys more the confidence the general public, or the business community has in the judiciary than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him.

I should point out that mere cosmetic changes alone would not suffice. If we wish to achieve this goal, it is imperative that major reforms are introduced. Many other countries have taken such steps to establish specialized commercial courts. Recently, the Dubai Commercial Court (where one of our own former Chief Judge has recently been appointed to sit as a judge in this new court), and the Qatar Commercial Court have been established.

I know that judging is an arduous task calling for a good mind and a capacity for hard work. The inevitable consequence of incompetence is delayed judgments and backlog in cases leading to all round dissatisfaction.

As is often said, there are good lawyers and bad lawyers. Whilst the majority of the lawyers discharge their duties as officers of the court with professionalism and dedication, there have been cases of some others who have brought disrepute to the legal profession. There have been allegations against some lawyers that in clear dereliction of their responsibilities, they have either misled the courts, or attempted to choose the judges or courts for their cases to be heard so as to obtain a favourable decision in their client’s favour. This is serious interference with the administration of justice and the process of the court.

I am reminded of the proud accolade of the late Tun Suffian in his Braddel Memorial Lecture in 1982, when speaking of the Malaysian judiciary to a Singapore audience he said:

“ In a multi-racial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgement with our name deleted could with confidence identity our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”

Read the full text here.

41. Wait for Report

The Government will decide on the next course of action once it receives a report from the panel to verify the authenticity of the video clip purportedly showing a lawyer discussing appointment of judges.

The Deputy Prime Minister Datuk Seri Najib Tun Razak said the Government had yet to receive the report from the panel.

"When we get the report from the panel, we will decide," he told reporters after officiating the Women's Institute of Management Biennial Lecture 2007 here on Monday.

Najib was asked to comment on Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz's statement that if no witnesses come forward, it could be concluded that it was a non-issue and the video clip was not genuine.

The panel headed by Tan Sri Haidar Mohd Noor, which was set up by the Government on Sept 27, was given 30 working days to complete the investigation and report to the Prime Minister.

The panel has been waiting in vain for witnesses to volunteer information despite the assurance by Prime Minister Datuk Seri Abdullah Ahmad Badawi on Saturday that witnesses would be given personal security wherever required - Izatun Shari, The Star.

Please read my comments here.

40. Anwar to Persuade

After Prime Minister's assurance of witness protection, Datuk Seri Anwar Ibrahim is prepared to discuss and persuade the whistle-blowers to come forward and give their testimony.

"I am ready with a thumb-drive (of the original video clip). Tomorrow (today) we will see whether the ACA is clear of what they want."

Meanwhile Bar Council Vice-Chairman, Ragunath Kesavan said "witness protection also included protection to witnesses round the clock, security of witnesses and even providing for a new identity as well as relocating them for their safety."

Read all here in theSun.

39. Malam Bangsa Malaysia

Event : Malam Bangsa Malaysia
Date : 3rd November, 2007
Time : 8.00pm
Venue : Room A, Dewan Sri Pinang, Pulau Pinang.

There will be a charge of RM10 per person to cover rental and refreshment costs.

The event can only accommodate 200 people and attendance is by invitation.

The organising team has also put together a forum entitled 'One People, One Nation' which is open to all who are registered to attend the get-together later that night.

The forum is scheduled to start at 5pm. Registration will start at 4.30pm.

Speakers for the forum are :

1. Dato Seri Lim Chong Keat
2. Khoo Kay Peng (independent political analyst)
3. Malik Imtiaz Sarwar
4. Haris Ibrahim

What you need to do to get an invitation:

Firstly, as places are limited, please be sure that you can attend before you ask for the invitation.

If you are very sure that you can make it, please send an e-mail to bangsamalaysiapenang@gmail.com

In your email, please provide the following details :

1. Name (as per IC) and IC number
2. Contact number
3. A little bit about yourself ( where you're from, what you do ). Also tell us what your feelings are about the last fifty years of independance and what your hopes are for the coming fifty years. Also, share your thoughts on what you think needs to be done to make the aspiration of one people, one nation a reality in Malaysia.

All e-mails will be replied.

All particulars furnished will be treated with utmost confidence.