New directions and trends

7.1 Cause lawyering and the Malaysian Bar - without fear or favour

Let us not forget the fact that the true responsibility for the effectiveness Ofthejudiciary lies with the legal profession which fosters and nurtures it.

- Sultan Azlan Shah, speaking in 1989 as Royal Patron of the Malaysian Students’ Law Society in the United Kingdom and Eire

We know that we are a thorn in the side for those who abuse human rights, ignore the rule of law and Violatefundamentalfreedoms. 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.²⁹⁹

- Dato Ambiga Sreenevasan, President of the Malaysian Bar Council (2007-08)

The Bar and the rule of law

Broadly speaking, cause lawyering describes the practice of law committed to using legal means to support social change. In Malaysia the principal cause is one

292 ibid.

293 International BarAssociation, op. cit., p. 49.

294 Wu Min Aun (2007), op. cit, p. 273, para 286.

295 Wu Min Aun, �The Malaysian Judiciary: Erosion of Confidence’ (1999), op. cit.

296 G Felker, �Malaysia in 1999: Mahatir’s Pyrrhic Deliverance’, Asian Survey, vol. XL, no. 1,2000, p. 50.

297 P Martinez, op. cit., p. 195.

298 Sultan Azlan Shah, op. cit., p. 349.

299 Dato Ambiga Sreenevasan, op. cit.

dear to lawyers everywhere - the rule of law itself.^[730] As examined above, the concept of the rule of law, as opposed to rule by law, has been repeatedly strained and manhandled in Malaysia, mainly via the exercise of executive power and intimidation. Ultimately, the courts themselves have been drawn, unwillingly, into a series of events undermining the rule of law.

Yet under such a trying political climate, especially in the past two decades, the Malaysian Bar continues to actively defend political detainees, represent issues of human rights and organise persistent efforts on behalf of imperilled citizens.^[731] In particular, the Bar remains the steadfast guardian of the independence of the judiciary.

Reasons moving cause lawyers into action are manifold, and Lev has argued that the main impetus is an amalgam of professional interest and ideological commitment.^[732] Such efforts, however, are not undertaken without risk. Illus­trative of this is PM Mahathir’s accusation that the Bar was �playing too much politics and devoting less time to legal work.’^[733] According to a report by the Association of the Bar of the City of New York,^[734] several lawyers who have been active in the Bar’s efforts are reluctant to practise before the Supreme Court for fear of doing a disservice to their clients, given their outspoken stances.

These are indeed legitimate fears. In recent years there has been an increase in cases of lawyers being harassed and intimidated by the police, especially in relation to cases of purported breaches of public order involving citizens exercising their legitimate right to dissent.^[735] This gives rise to the perception of selective investigations by the police force, and the targeting of legitimate dissenters, especially when no offence appears to have been committed, as in the case of lawyer N Surendran.^[736]

Apart from police pressure on cause lawyers, the executive has also resorted to the court system to intimidate troublesome lawyers. For example, the 1986 prosecution of the then vice president of the Bar, Dato Param Cumaraswamy, under the SeditionAct gave rise to the perception that the executive was attempt­ing to silence the Bar.^[737] Similarly, prominent lawyer Karpal Singh was charged (although the Attorney-General withdrew its seditions charge in 2002) for com­ments he made as legal representative of Anwar in 1999.

The Bar and its efforts

Pursuant to s 42(1)(a) of the LPA1976, the Malaysian Bar shall �uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear or favour.' To this end, it may fairly be said that the Malaysian Bar has remained true to its ideals, standing up against what it perceives to be unjust laws and defending the judiciary whenever it sees that judiciary independence has been compromised.^[739] Indeed, after lamenting the decay of the Judiciary in 1991, Tun Mohamed Suffian commented:

There are only two bodies on whom the public repose confidence in this country. First, the Bar. The public will never forget the magnificent part played by the Bar in rushing to the defence of the Judiciary... The monarchy apart from the Bar is the last bastion that stands between you and tyranny.^[740]

Malaysian lawyers had, however, come late into activism mainly because there seemed little to be activist about.^[741] After all, activism requires a sense that there is something not quite right with the legal system or political order. Dur­ing the first 20 years of independence, the Malaysianjudiciary had maintained the supremacy of the Constitution and the rule of law, and resolved disputes without fear or favour.^[742] There was, consequently, a high degree of respect and confidence vested in the justice system.

Nevertheless, waves were made in the mid-1970s when the Government resorted to the Internal Security Act more often, and became more inclined to use its parliamentary majority to amend the Constitution frequently in order to enhance its own powers.^[743] In response, the Bar Council made several outspoken comments on the frequent constitutional amendments, leading the government to retaliate through the LPA 1976.^[744] Assuming that young lawyers were the root cause of dissent, s 46A, amended in 1978, barred lawyers from becoming members of the Bar Council until they had practised for at least seven years.

Indeed, amendments to the LPA were often used, and continue to be threat­ened, by the executive to attempt to clip the wings and whittle away the independence of the Bar.^[746] When s 46A failed to silence the Bar, the executive further amended the LPA in 1983 to erase the Bar Council's right to advise Parliament.^[747]

The relationship between the executive and the Bar reached its lowest ebb in the 1980s, under the premiership of PM Mahathir. It has been noted that ideologically, the two had moved miles apart - while PM Mahathir tried to beef up the state by extending executive power, the Bar stressed the need to protect citizens against executive power by rallying for judicial independence.^[748]

During the 1988 Saga, the Bar steadfastly stood by the fallen judges by passing several resolutions expressing grave concerns over the composition of the tribunals.^[749] The Bar went so far as to pass a vote of no confidence on the then newly elected Lord President Tun Hamid who had played a part in the removal of his predecessor,^[750] while some lawyers even boycotted sessions of the court chaired by Tun Hamid.^[751] In a press statement released in 2006, the then President of the Bar, Yeo Yang Poh, also called for the executive under the new Prime Minister to investigate the events of 1988, �with a view to uncov­ering the truth, leaving no stone unturned, correcting the errors and injustices perpetrated, and restoring the honour of the judges who for no more than assert­ing their independence were so cruelly sacrificed at the altar of political power play.'^[752]

The independence of the legal profession was also demonstrated by the trial, appeal and ultimate release of Datuk Seri Anwar Ibrahim. Following his arrest in 2001, the Kuala Lumpur Bar Committee issued a memorandum stating that the administration of justice was facing �its darkest hour since independence.'^[753]

The Bar has also been active and fearlessly outspoken in its advocacy of pro­gressive initiatives to safeguard the independence of the judiciary.

Today, the Bar continues to play an active role in promoting the independence and strength of the judiciary, and vows to maintain its outspokenness in relation to issues of justice and law.^[757] On 11 December 2008 it released a press state­ment supporting the general purpose of the Judicial Appointments Commission Bill 2008^[758] (JAC Bill), while highlighting several problematic provisions in the Bill.^[759] For example, the JAC Bill vests too much power in the Prime Minister, who controls the appointment of the majority of the Judicial Appointments Com­mission, and is given unfettered power to amend the provisions of the Act. This does little to buttress the separation of powers, but instead gives the power of the executive over the judicial appointments process the force of law.^[760]

7.2 Optimism for the future?

Despite the worrying issues that have plagued the Malaysian legal system for around two decades, there are signals that the system may be changing for the better. In particular, judicial and legal reforms have been effected, and continue to be considered. However, it is observed that many of the reforms continue to be blunt weapons in combating the targeted evils. Furthermore, the stances held by the ruling party UMNO have sometimes been seen to be at odds with reform efforts.

Anwar's vindication

In 2005 Justice Michael Kirby stated:

The overturning of Anwar's sodomy conviction in a 2-1 decision of the Federal Court in 2004 obviously represents a very public assertion of judicial independence and of the Rule of Law in Malaysia.^[761]

It has been suggested that the Federal Court’s decision to uphold Anwar's appeal and release from prison would not have been possible under the Mahathir regime and ideology.^[762] This is because in contrast to Mahathir’s public chidings of the judiciary, PM Abdullah Badawi made it clear that he would not seek to influence court decisions.^[763]

Content as we are about Anwar’s vindication, such an interpretation never­theless creates the impression that the judiciary is still subject to the whim of the executive, since the exercise of its independent will ultimately depends on the stance of the government of the day.

Ex gratia payments to fallen judges

Twenty years on in 2008, the Bar’s stand regarding the 1988 Saga was finally Vindicatedwhen the GovernmentpaidRM10.5 million³³⁴ exgratia to the affected judges or their families.³³⁵ However, the gesture by the Government appeared to be unsatisfactory and half-hearted at most, since no apology was made, and compensation nevertheless left the record against the judges untouched.³³⁶

Impressions of such half-heartedness may also be drawn from comments, such as those made by Minister Datuk Seri Mohamed Nazri Abd Aziz, that the ex gratia payment â€?is not the Government’s admission of guilt’, but rather â€?about moving on’.³³⁷ Dato Ambiga Sreenevasan, President of the Malaysian Bar, has however argued that a process of truth-finding and reconciliation is crucial before the country may move on from the injustices committed in the 1988 crisis.³³⁸ Absent such public scrutiny of unjust decisions, there can be no guarantee that those in power remain accountable for their actions.³³⁹

Law reforms

The perception of a lack of enthusiasm by the Government towards judicial reforms may not be totally unfounded. Of interest was the resignation of de facto Law Minister Datuk Zaid Ibrahim in September 2008. Zaid was appointed to the Prime Minister’s Department to take charge of judicial and legal reform, and had put in motion the ex gratia payments to the judges. When Zaid tendered his resignation in September 2008, he reportedly said that it would be futile to carry on with his efforts to reform the judiciary due to hard resistance from some UMNO cabinet members relating to matters such as reform of the Internal SecurityAct.³⁴⁰ At a press conference the day after tendering his resignation, Zaid lamented:

This country is about the rule of law. This country is about transparent processes. Ifyou don’t subscribe to these principles or ifyou just pay lip service, it is difficult to translate them into a policy.³⁴¹

If this was indeed the situation within the ruling party, then there is certainly cause forworry. After all, much ofMalaysia’s constitutional future depends on the

334 â€?Ex-Judges Paid RM 10.5 Mil Ex-Gratia’, The Star, 7 Novermber 2008; ⁱSalleh Sacked, but Given Compassionate Pension, Says Dr M’, The Sunday Star, 9 November 2008, reproduced at The Malaysian Bar.

335 Dato Ambiga Sreenevasan, �The Role ofLawyers in the Administration of Justice’ op. cit.

336 Dato Ambiga Sreenevasan, �Let Right Be Done’ (2008), op. cit.

337 �Ex-Judges Paid RM 10.5 Mil Ex-Gratia’, op. cit.

338 Dato Ambiga Sreenevasan, �Let Right Be Done’ (2008), op. cit.

339 ibid.

340 �Zaid Says Some Umno Ministers Resisting Reforms’, TheEdgeFinancialDaify, 17 September 2008; F N Karim, �The Last Straw that Broke his Back’, New Straits Times, 17 September 2008.

341 �Zaid Says Some Umno Ministers Resisting Reforms’, op. cit. integrity of those in power, and those responsible for upholding the rule of law.^{[764] [765]} Nevertheless, some headway seems to have been made with the move against corruption and the proposal to set up the Judicial Appointments Commission.

The Malaysian Anti-Corruption Commission Bill 20 08^[766] (MACC Bill) was passed and came into operation on 1 January 2009, with the declared objec­tive of making �further and better provisions for the prevention of corruption and for matters necessary thereto and connected therewith'.^[767] This was against the backdrop of the recently released Corruption Perception Index (CPI), which placed Malaysia in 43rd place in 2008.^[768] Aside from investigating allegations of corruption, the MACC, which replaces the much-criticised Anti-Corruption Agency (ACA), is also responsible for educating the masses against corruption.^[769] The MACC, however, has not managed to escape criticisms of ineffective­ness, given that the power to prosecute corruption cases remains vested in the Attorney-General.^[770] This is, however, not a foregone conclusion; in Jan­uary 2009 the opposition party, Parti Keadilan Rakyat (PKR), lodged several corruption allegations with the MACC to test whether it is less partisan than the ACA.^[771]

The JAC Bill also came into operation on the same day to identify and recommend candidates for the judiciary to the Prime Minister.^[772] Despite its shortcomings,^[773] it arguably represents a positive step towards restoring confi­dence in the judiciary.^[774]

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