Another classic piece of LoyarBurokkery by LoyarBurokkers Fahri Azzat and Shanmuga K. This write up was circulated via e-groups, emails and in print at the AGM, but does not seem to have been published online before this.
We refer to the resolution [see below] which we are moving at the 59th AGM of the Malaysian Bar on 22nd October 2005 which essentially seeks to limit how long members of the Bar sit on the Bar Council or as Chairpersons of Committees of the Bar Council, and to prevent past presidents sitting in the Bar Council.
West Malaysian practitioners are compelled to become members of the Malaysian Bar by statute. Despite that compulsion, the freedom of members of the Bar to elect their leaders in the Bar Council is an important right, and any derogation from that must only be with good reason.
This resolution is moved not because of a lack of confidence or animosity on our part towards the current members of the Bar Council, many of whom serve the Malaysian Bar with great diligence. Neither is it an attack on experience or on senior lawyers. It is submitted that there are compelling reasons, on points of principle and for the improvement of the Bar generally, to limit the number of years members can sit on the Bar Council.
First, it must be recognised that imposing term limits on persons holding positions of power is not uncommon in a democracy – it is a well recognised limit on freedom of association. The Legal Profession Act 1976 itself imposes a term limit (which may perhaps be too short) on the President of the Bar.
The American experience is also particularly instructive.
George Washington, “perhaps the most popular and powerful American of all time .. nevertheless stepped down after two terms as president. He handed back to the people the immense power and trust they had given to him—dramatically making the case that no one should monopolize a seat of power.” Source: “Term Limits and the Need for a Citizen Legislature”, Edward H. Crane, The Cato Handbook for Congress: 106th Congress, 1999, page 112.
This established an unwritten tradition that no President would serve or seek more than two four-year terms.
“Franklin Roosevelt broke this tradition, however, when he sought and won his third and then fourth terms in 1940 and 1944. Congress, eager to contain the possibility of an imperial Presidency but leery of change during World War Two waited until its conclusion to pass the 22nd amendment to the Constitution [which limits Presidents of the USA to only 2 terms of office]”
In addition to the Presidential term limit, it appears that in 16 states in the US where there are limits on the number of terms State Legislators can serve. (An even greater number of States restrict the number of years a person can serve as the Governor of that State.)
However, members of the US Congress (the US version Federal Parliament) do not have term limits.
In US Term Limits v Thornton (1995) USSC, the US Supreme Court held by a majority that an attempt to limit the tenure of members of Congress through State legislation that prohibited the candidacy of a nominee was unconstitutional. Beginning his opinion by stating that the “fundamental principle of our representative democracy [is] . . . that the people should choose whom they please to govern them” Justice Stevens, delivering the opinion of the majority, ended “term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate.” He held that it was in fact the province of a Constitutional amendment. [Emphasis supplied.]
Thomas Jefferson is reported to have said “An honest man can feel no pleasure in the exercise of power over his fellow citizens.” Bar Council members do a great service to lawyers. They spend a lot of time doing jobs that nobody else really wants to do which impinge on the time they are able to spend on their professional duties and their family. It is unfair of us to continually vote in selfless people, who no doubt in the spirit of volunteerism will never say no when nominated for election and called upon to serve. It is incumbent on us to relieve the pressures of altruistic persons who desire to serve the Bar. We cannot in good conscience accept such huge sacrifices from our fellow lawyers for our benefit.
An incumbent in any position enjoys great advantages, in terms of name recognition and experience. This leads to a situation where elections become less competitive and thereby less representative of the electorate. It is also cited as a compelling reason for the decline in voter participation.
The inherent advantages of an incumbent can easily be abused. Our system of democracy is one in which we are supposed to govern ourselves. Instead of concentrating on doing things for the primary purpose of getting re-elected, a person holding elected office is able to discharge his duties more independently if he knows he can only be there for a definite period of time.
A situation should also not arise where members of the Bar feel estranged from its governing body. By permitting members to continually be re-elected, a gradual feeling develops of an ‘us’ and ‘them’ between Council and Bar which should not be discouraged.
From a practical viewpoint, by restricting term limits through a resolution of the Bar which makes it a matter of convention rather than regulation, we are able to control our elections ourselves rather than leaving it in the hands of the legislature or the Courts. If the system of term limits does not work out, all that would be required would be a resolution lifting the term limits.
A term limit will not deprive the Bar of the services of its brightest luminaries. It is a misconception that you cannot serve the Malaysian Bar in other capacities. One can serve the Bar Council by sitting in a committee; one can serve in the Bar Council Legal Aid Centres in various capacities; one can support the local State Bars as well as their committees; one can write to Bar publications; one can offer legal services to the Bar when called upon; one can serve in the bodies entrusted to ensure professional discipline.
We therefore urge you to support the resolution to limit the terms of Bar Council members.
K. Shanmuga & Fahri Azzat
9th March 2005
The text of the proposed resolution, extracted from the Malaysian Bar website. If you go there, you will see some other resolutions proposed by some other LoyarBurokkers those many years ago!
Item 5 (ix) Motion by K. Shanmuga Seconder :Fahri Azzat
Motion to limit by convention the tenure of Bar Council members and Chairpersons of Committees of the Bar Council
Limit by convention on the tenure of Bar Council members and Chairpersons of Committees of the Bar Council.
Whereas in order to bring about a better system of management of the Malaysian Bar it is the wish of the Malaysian Bar that that there be a continual refreshing of the composition of the Bar Council, through the democratic process so that fresh ideas and approaches are constantly brought to the management and leadership of the Malaysian Bar and therefore
IT IS HEREBY RESOLVED that the following conventions be adhered to by members of the Bar :-
a) In this resolution `an election’ means the election of members of the Bar Council under section 47(2)(c) of the Legal Profession Act 1976 (‘the Act’) and/or the election of the Chairman of a State Bar under section 70(4) of the Act and/or the election of a representative of the State Bar on the Bar Council under section 70(7) of the Act.
b) A member of the Bar who has served in the Bar Council for five (5) years shall not offer himself as a candidate in an election until a period of at least three (3) years has elapsed from the expiry of his last term of office.
c) A member of the Bar shall not offer himself as a candidate in an election if he has served as a member of the Bar Council for fifteen (15) years or more in aggregate.
d) A past President of the Bar having served 2 years in office as president shall not thereafter offer himself as a candidate in an election . For the avoidance of doubt, the disqualification in this clause (c) shall not affect the statutory term of office of the immediate past president as a member of the Bar Council pursuant to section 47(2)(a) of the Act.
e) The chairperson of any committee of the Bar Council established under section 58 of the Act shall not be appointed as Chairperson of that committee for more than three (3) continuous years nor shall he be appointed as Chairperson of that committee for more than ten (10) years in aggregate.
f) The Bar Council shall establish a Board of Advisers pursuant to section 58 of the Act to provide assistance and advice to the Bar Council as and when circumstances warrant it which may comprise members of the Bar otherwise disqualified from serving in the Bar Council by reason of the resolutions above but the Bar Council shall not delegate any of its powers to such a Board of Advisers
g) Nothing contained herein shall prohibit a person disqualified by reason of paragraphs (a), (b), (c) or (d) above from offering himself as a candidate for election or from being appointed as a Chairperson of a Committee as the case may be in any period of crisis faced by the Malaysian Bar if it is considered that the Malaysian Bar requires his particular expertise and leadership in the Bar Council and that there is no other suitable member of the Bar able and willing to serve in that capacity to meet that crisis.
The motion was rejected by a majority of 161 votes against, 54 in favour and 6 abstentions.