In Defence of the Bar Council Resolution Demanding Resignations

At the Bar Council Extraordinary General Meeting held on 15 May 2009, the Bar resolved to demand for the resignations of the Minister for Home Affairs, the Inspector-General of Police, Officer in Charge of Police District (OCPD) ACP Wan Abdul Bari bin Wan Abdul Khalid and DSP Jude Pereira of the Brickfields police. I spoke in favour of the resolution calling for the resignation at the EGM and now I am writing in defence of it. The irony is that the attack against the said resolution has not just come from outside the Bar but from within as well. This, however, is not at all surprising.

Some of the lawyers in a forum I moderate have criticised the resolution as being ‘too harsh’ or that it has ‘confused’ or ‘overshadowed’ the real issue namely, the impropriety of the OCPD’s behaviour, or that the demand for resignation is so extreme and that the Bar Council is now like some ‘loony fringe NGO’. And you have the likes of Tan Sri Abu Zahar, the President of some organization known as ‘Persatuan Peguam Muslim Malaysia’ (PPMM), who did not bother to turn up or speak at the EGM or even condescend to send some flunky from PPMM to raise his or their concerns or objections to the resolutions at the EGM. If Abu Zahar disagreed so vehemently with it so as to claim ominously as Utusan Malaysia did that ‘Majlis Peguam tidak sensitif keselamatan negara’, then he should have argued it at the EGM and not deliver his criticisms to the Utusan Malaysia. That he has chosen to forfeit that right indicates a lack of bona fides in his criticism, never mind the immense lack of erudition in his critique, and a lack of propriety for ventilating of criticism.

But before I proceed to address these criticisms, allow me to digress a moment to remark about this aberration that is PPMM. As far as I know there is only one body that is legally qualified and proper to represent the lawyers and that is the Malaysian Bar as statutorily provided for in the Legal Profession Act 1976 (LPA76). The purpose of the Bar is spelt out in section 42(1) LPA76. In short, they are there to protect, regulate and develop the practise of all lawyers called to the Bar. Indeed they are the only body empowered to act in the interests of the lawyers that is and should be recognized by the law. It is for this reason that I am unable to understand what an organization like PPMM is for, aside from providing office bearing positions for those desperate for such ornaments.

What is so different from a Muslim lawyer as opposed to a Christian, or a Hindu, or a Jedi believing lawyer in their practise? The ethical code of conduct and the applicable laws apply to all lawyers irrespective of their belief. In fact, one’s religious belief has and should have nothing to do with the law, except in so far as it becomes an issue in a case.

Further, I mentioned just now that PPMM as an aberration. This is because its very existence is prejudicial to the egalitarianism and unity of the Bar. What then if Hindus and Christians start their own organizations, for example? The very term ‘Peguam Muslim’ encourages if not demands factionalism thus provoking fragmentation at an already fractured Bar, and an adherence not to law but religion, which going by Islamist type lawyers, is whatever they think it is, under the guise of religious authority, of course.

As far as I’m concerned, a lawyer is a lawyer. There is no such thing as a Christian or Muslim or Hindu lawyer. It’s not in the LPA76 and anybody who tries to market themselves as one is a fraud. There is however a lawyer who believes in Christianity, Islam or Hinduism. The difference is subtle and slight though painfully significant.

Now let me address some of the recent criticisms that I have heard since the resolution was passed. At the outset let me state that is no serious criticism in respect of the call for the resignation of the OCPD of the station. It would appear, at the very least, everybody is agreed on that. The criticism focuses on the demand for the resignation of the IGP and the Home Minister, so I shall address those only, and in turn.

Let us place the resolution in a wider context instead of that single instance on 15 May 2009. It is important that we understand and appreciate the environment we are in. The exploits of rogue policemen can be regularly found in the newspapers. And as we all know our mainstream printed newspapers are heavily censored, so whatever is reported there would tend to be the tip of the iceberg.

I need not cite for you detailed examples except point to the general trend. They are either cutting themselves into deals with gangsters or trying to rob them themselves, or committing robberies themselves, destroying evidence, killing people in custody, police lodging police reports for receiving less bribes than his colleague, etc. That more and more developments are becoming gated is an indication that citizens cannot leave security to the police but have to take it in their own hands with private guards and fenced up housing areas. That we read of just rapes but gang rapes, snatch thefts, robberies, house break ins on a daily basis demonstrates a systemic inability to prevent crime and suggests that criminals think little of the police’s enforcement. And let us not forget the famous recent case where two Special Branch officers were convicted for the murder of a Monglian lady in cold blood – Public Prosecutor v Sirul Azhar and Azilah Hadri. Let me ask you this – how many police have been convicted of murder, culpable homicide as compared to lawyers?

The IGP over his tenure has overseen these developments and done nothing of significance to stem the overwhelming tide of crime besieging our country. And what does he do when all this is going on? He sends precious police resources down to break up a peaceful candlelight vigil and then permits his subordinate to arrest the lawyers waiting to see their client on the pretext of there being an illegal assembly. What do we need before we hold him accountable? Do we need our very own family brutally and senselessly killed by crime before we censure him? The lawyers were doing their job just as his policemen were abdicating theirs. To oversee such a flagrant and unjustified use of power to arrest the blameless lawyers (or in fact, any citizen who is blameless) on the grounds of illegal assembly is unacceptable by any civilized standards. To waste precious public resources over such petty matters when people are being killed by crime is unforgivable. People in his position have resigned for less.

And the Home Minister? Let us not forget that he was supposed to be a lawyer before. Though his greatness probably lay in obtaining judgment in defaults for hire purchase claims, I am certain he should at least have acquainted himself with simple basic concepts like innocent until proven guilty and the prosecution has to prove its case beyond a reasonable doubt. But if you told me he did not, in truth, I would expect it. His excuse would no doubt be he didn’t do criminal.

Now instead of offering to investigate the matter. Instead of giving his former brother and sisters at law the benefit of the doubt; instead of behaving with even a hint of judiciousness – he defended the police and impliedly accused the lawyers of trying to put themselves above the law. What utter rubbish. What a complete lack of fairness. What a complete lack of responsibility.

What did the lawyers do that put themselves above the law? Demand to see their clients? Getting arrested while waiting for their clients? One of them being moved about from place to place to avoid being found by his concerned friends and relatives? You mean those same lawyers that were shouted at by the OCPD on a speakerphone while they waited outside the gate for their clients and were then arrested for purportedly illegal assembly? I am not sure which part of the entire episode the lawyers claimed themselves above the law. And the fact that the lawyers were arrested was clear proof that they were not above the law! And does the Minister hear the Bar Council scream when lawyers are arrested for breach of trust, for destroying evidence in court, for cheating? No, it does not, because the Bar Council and most lawyers respect the law. So the Minister’s resignation should come from his lack of bona fides and ethicality in his consideration and handling of the episode. If his tenure at the Ministry of Education is anything to go by, the ISA looks set to be with us for many more years to come.

And to those that describe demanding their resignations as harsh, I confess to feeling sad that some of our very own lawyers do not realize how low the standards of integrity and credibility are in this country that they are only too ready to forgive the people in power who transgress the very laws they are duty bound to uphold. It is sad that the abuses of authority, breaches of the law and ethics are met with pathetic begging to be more ethical, to be more fair, to be more sensitive. And what is more sad that we have been so used to pusillanimous resolutions condemning events or instances that when there is finally a resolution of some worth, of some meaning, of some potency, there are those who are only to quick to quibble about its potency and consign the Bar Council to being an NGO.

To those who criticize the resolution as excessive and insist on a resolution that is more achievable have completely missed the point. Of course absolutely nothing is going to happen to the IGP or the Home Minister or even the OCPD. There are too many vested interests in them for those in power to demand their resignations. In fact I think the OCPD will be soon up for promotion for the ‘good job’ that he did. We called for their resignation as an expression of the strength of how unjustified the actions were, how angry we are at their baseless transgressions and to indicate that we deplore and will not tolerate any unwarranted arrest of not just the lawyers but also of any citizen.

That’s right. The resolution was not just about lawyers and we are not somehow trying to carve out some special status for ourselves. Those that claim this of us are delusional, did not bother to read the resolution passed and are malicious. They do not know that though lawyers are good at defending their own interests, they are their best when they are defending the interests of others in the spirit of truth and justice.

Finally, to all those lawyers who disagree with the resolution or criticize it for being harsh, please forgive us for demanding more for our integrity and self-respect than you think yourself entitled to.