Dalam temuramah “Cross Talk: Making of the hybrid lawyer of tomorrow” yang diaturkan oleh Aniza Damis (New Straits Times, 31 Januari 2009) dan disalin di bawah, kita dapat menilai bahawa bukannya visi atau objektif Badan Peguam yang bercanggah, tetapi cara menyuarakan mesej Badan Peguam yang berbeza.
Outside of court, what should lawyers be doing with their time? Should they walk, march, protest, or just sit quietly and make money? Senior lawyer and Bar Council president Datuk Ambiga Sreenevasan and Bar Council human rights committee deputy chairman Amer Hamzah Arshad thrash it out, with ANIZA DAMIS sitting in.
ROLE OF LAWYERS IN SOCIETY
Amer: You have to uphold the Constitution and the Rule of Law, without fear or favour. Over and above that, lawyers need to take a more proactive role in terms of creating awareness, educating the public, taking up causes on behalf of the public. We know the law, we know how the system works, and we know its failings. We are now trying to come out with a hybrid lawyer – a legal expert who is also a human rights activist.
Ambiga: The examples set by our predecessors were very good. In 1988, we had the judicial crisis and Operation Lallang; it was a very tense situation. Despite that, the Bar stood up.
SPEAKING, NOT WALKING
Aniza: De facto law minister Datuk Seri Mohamed Nazri Abdul Aziz said, after the lawyers’ “Walk for Justice” in 2007, that their role is to speak, not to march.
Amer: Speaking up in court is one way of advancing an issue. But we have to be creative in trying to put forward our views. We had been communicating, engaging with the government, and yet it wasn’t working. Just because we went to the streets to send a strong message to the government about the judiciary doesn’t mean that we turned into a mob.
Ambiga: We always start by dialogue, by issuing statements, by trying to reason. But when it falls on deaf ears, then we have to make a decision how we want to advocate this in stronger terms. We are doing this for the institution of the judiciary and for the country.
Aniza: In December 2007, when you had the Walk for Freedom, you, Ambiga, didn’t walk; Amer did. Why?
Ambiga: The Bar Council called off the walk because we thought there would be a security issue. Especially as the police were already making noise that they were going to come down hard on the walkers. So, we felt a responsibility towards the other people, the non-lawyers who were going to walk. I was disappointed there was so much pressure on us to call off that walk. The only reason we did that was in the public interest at that time. But, of course, a group of lawyers decided otherwise. They were exercising their rights.
Amer: Different lawyers would have a different take of the situation. The country had just had the Bersih and Hindraf rallies. The situation was tense. It was important to send the right message to the government that it’s possible to have a peaceful demonstration in the name of human rights. From the government’s perspective, the Hindraf and Bersih rallies were associated with violence. So, we were trying to send a strong and correct message to the government that it is okay to have peaceful assemblies and rallies.
Ambiga: The council came under a lot of criticism, including from Amer and friends, for calling it off. Sometimes, I feel that perhaps Amer and friends don’t appreciate the issues that we have to deal with. We are not only there for a group of 30 lawyers; we represent a much larger group of lawyers.
Aniza: Amer, did you think it was the right decision?
Amer: I would say the right decision would have been to proceed with the walk, and to have the walk in a very coordinated and peaceful way.
Ambiga: There were people who said we chickened out.
Amer: Yes, I think that was some of the criticism.
Aniza: By marching, didn’t you feel you were creating some sort of schism in the Bar Council?
Amer: It shows that the Bar is dynamic. Whether you like it or not, that was the decision of the council. At the same time, the council respects the views and rights of other people to exercise their constitutional rights, and that’s what happened.
Ambiga: We respect the right to freedom of assembly. That’s why we were not angry with them for walking.
POLITICAL ACTIVISTS?
Aniza: Do you worry that the younger generation is going to be just activists, and is not going to look at the bigger picture?
Ambiga: I think they do get a feel for what’s happening around them. Amer’s group, the human rights committee, gets very heavily criticised by the members. But they are also entitled to their own views. Recently, we were criticised by our members for being so political. They said: “Stop all this and start looking after the interests of the members.” But we are looking after the interests of the members. We just don’t publicise it.
Amer: Different people will have different views on the Bar’s function or role. I cannot impose my views on the others. The most I can do is to sell my views. What’s wrong with being labelled political? We are not being partisan political, we are not taking sides with Party A or Party B; but we have to be political on issues, like the Internal Security Act, for example. On certain issues, people tend to perceive it as being political, when in fact it is something that involves human rights issues, human rights violations. Take deaths in custody, for instance. Some people might say speaking out against death in custody is trying to be political. I disagree. What’s wrong with voicing out our concerns on deaths in custody, which affect the public at large?
Ambiga: Every issue we take up is in relation to the Rule of Law and human rights. It’s never outside that. If within the political parties, they are having fights, we don’t comment on that.
Aniza: As we saw with the Conversions forum, there was such a reaction from various sectors. Do you still think lawyers should get involved in such matters?
Ambiga: That was a legal forum; we were talking about legal issues. We explained what it was to everybody. We were only dealing with legal issues; we were talking about the laws and the decisions made by the courts; we were trying to find ways to resolve them.
Amer: People said we should just accept the court’s decision. And if we weren’t happy about it, we should just disband and register the council as a political body. We can’t run from the fact that any political issue will have a legal and human rights angle to it. And we cannot stop from discussing or debating such issues. Because everything that we do in life will have a political angle, the human rights angle and the legal angle. So, there’s bound to be some overlapping.
ANTI-GOVERNMENT, PRO-GOVERNMENT
Ambiga: People say we are anti-government, and the opposition thinks we are pro-government. That only shows you how independent we are. Because a lot of issues are in relation to abuse of power or concern people in authority, I suppose it looks as if some of the issues can be anti-government. But we are not anti-anyone. We are pro-human rights, we are pro-the rule of law, and we are pro-justice. Recently, the minister said we were “publicity-seeking”, because we called for the separation of the public prosecutor role from the attorney-general’s role.” Once you label, you don’t have to deal with the merits. And that’s how they’ve been dealing with the issues (we brought up). It’s also time we realise that opposition is not a bad word. It is part of governance, the whole parliamentary process. People should get rid of this idea that if you are pro-opposition, it’s bad. The opposition should also stop saying that if you are pro-government it’s bad. They must concentrate on issues. Labelling is the easiest thing in the world to do. At the end of the day, this whole thing about human rights and right to assembly is a process of negotiation with the government. We have to show we can be responsible when we conduct assemblies. We must show that they don’t have to be paranoid about it. Right at this point, they are paranoid about all these things. They don’t have to be. And the way we do that is by being responsible about how we conduct assemblies. So, this whole process is a growing process for all of us. Some people like Amer are not patient enough, perhaps. They want it today; now.
Amer: We need to push the government, and the council. We need the members of the Bar to check and balance the council. Similarly, the council should be the check and balance for the government. If it is an issue that affects all of us, then all of us should stand up and voice our concern in unison.
Aniza: Amer, as you and your group move further up the ladder in the council, do you think the running of the council is going to change?
Amer: Maybe, maybe not. We are not trying to dominate the council and say: “This is just a human rights organisation” – it is part and parcel of the Malaysian Bar. Even assuming that the younger lawyers will eventually take up the mantle of the leadership of the Bar, that doesn’t necessarily mean that we are going to focus on this one issue. You can’t. Because when you talk about running the Bar, it is similar to running the country: there are other issues apart from human rights issues that need to be resolved and looked into. So, that can’t be the sole agenda; but it should be the big agenda. Ambiga, what are the views of the senior lawyers towards the younger lawyers, who seem to be quite vocal and critical at times?
Ambiga: Oh, there is a group that is critical of the younger lawyers who are (laughs) “outspoken”. But, as I say, I have total faith in the Malaysian Bar that when push comes to shove, we have never wavered on principle – whether senior or junior.
Amer: Prior to the amendment to Section 46A of the Legal Profession Act, which prohibits young members – those who have been in practice for less than seven years – from being a member of the council or holding a position in the Bar committees, you hardly saw any young lawyers in such committees in the council. But after the amendment, there was a gradual entry of younger lawyers at the council and committee level. Do you think that’s a step in the right direction? There are some complaints saying: “The young lawyers are too impatient. They are trying to take over the Bar.”
Ambiga: It’s for a senior and junior to get together and thrash it out. I do feel sometimes that you all don’t appreciate what we have to take into account in decision-making. I think that as you come up the ladder, I hope you will be in a leadership position, so that you can understand how difficult it can be to make these decisions! (laughs) This is life as it should be. What binds us all, ultimately – no matter what – is principle. If there is a violation of a principle, we are always united.
EAGER YOUNG LAWYERS
Aniza: Do you think that young lawyers are too impatient for change?
Ambiga: Not too impatient.
Amer: I wouldn’t say impatient. I think we’re just eager to see change.
Ambiga: I don’t have a problem with them being impatient for change for the good. It is good to be impatient, because there is nothing wrong to want things to change for the better.
Amer: And after 50 years, I don’t think we can say we are impatient. Though we may not be born back then, but still 50 years of independence and nothing much has changed in terms of human rights values and norms? How much longer do we have to wait? So, if by pushing for it, we are accused of being impatient. So be it. These are issues or matters that need to be addressed, and things that should be done now, we should not wait until tomorrow. Ultimately, we would like issues to be publicised so that people from all walks of life can appreciate the issues. It is through this process that we can make a real change when everybody is aware of the issues.
Jika diizinkan, komen-komen saya:
I. Isu perhimpunan/perarakan oleh peguam-peguam
Fakta
Pada 7 April 1981, lebih kurang 200 peguam berjalan ke Parlimen untuk membantah pindaan-pindaan kepada Societies Act dan Perlembagaan Persekutuan. Mereka telah memakai armband hitam. Kemudian, 42 dari mereka telah dituduh di Mahkamah dan disabit kesalahan berhimpun tanpa permit – lihat penghakiman-penghakiman yang dilaporkan dalam Siva Segara v Public Prosecutor [1984] 2 MLJ 212 dan Pendakwa Raya v Cheah Beng Poh & Ors [1984] 2 MLJ 225. Kini ramai daripada peguam-peguam tersebut adalah peguam-peguam berpengalaman dalam Badan Peguam.
Fakta
Selepas insiden yang disebut di atas, dan dalam artikel yang diterbitkan dalam The Star bertajuk “Bravo the Bar Council” oleh mendiang Tan Sri Dr Tan Chee Khoon pada 15 April 1981, dinyatakan:
Congratulations to the Bar Council for getting out of their air-conditioned rooms and descending from their ivory tower to demonstrate for fundamental liberties and human rights in this country.
At last the members of the Bar have reached manhood.
In my wildest dreams I would have never thought of the day when our lawyers would participate in a demonstration. In their wigs and black gowns they have always looked too respectable and dignified to actually take part in a demonstration and that, too, in a drizzle.
But on April 7, the lawyers actually stood on the roadside and in the rain, distributing their memorandum to MPs arriving at the Dewan Rakyat for the historic debate on the Societies (Amendment) Bill.
And 10 of them went into the lobby of the House to distribute their memorandum there as well.
It warmed the cockles of the heart of all freedom lovers of this country. The lawyers did us proud and the country salute you!
Let me explain.
In the past, the Bar Council had been headed by people who held office as chairman for too long and as a result got stale in office and in a sense got themselves isolated from the man in the street whom the lawyer is supposed to serve.
But with the passage of the Legal Profession Act a new generation of lawyers took over and the chairmanship was limited to two years. This was a change for the better.
…
I have always maintained that the lawyers of our country should be in the vanguard of the fight for human rights and fundamental rights.In the past it has been left to trade unionists, doctors and others to lead the fight. But they are not well equipped where the law is concerned and they usually do not read the fine print where legislation is concerned.
But now that the members of the Bar are in the vanguard, as they should be, the battle for the preservation of democracy will take on a new look.
In the past, I am told, the Government used to consult the Bar Council about some of the Bills they intended to bring to Parliament. That practice has long been discontinued. This is regrettable, for the Government can have recourse to a source of valuable advice free of charge.
…
The easy and arrogant manner in which the Government has passed the Bill will, I hope, bring home the message to every voter and citizen of the need for a strong Opposition and the danger of entrusting the Government with too much power.The Government is so drunk with power that it has become insensitive to the needs of the people.
…
Meanwhile the battle for democracy in this country goes on and we look to the members of the legal profession to be in the vanguard of the fight.But the Government must also take note of the warning made by Datuk Dr Ezanee Merican, president of the Malaysian Medical Association, that the “cure” will be worse than the disease.
In the meantime the people of our country salute the Bar Council. Continue the good fight.
Fakta
Pada tahun 1998an, semasa kes Anwar Ibrahim dibicarakan, peguamcaranya Zainur Zakaria telah dituduh menghina Mahkamah kerana telah memfailkan satu permohonan di Mahkamah. Peguam-peguam samada muda atau tua telah berjalan ke Mahkamah untuk membantah tindakan terhadap Zakaria tersebut. Mujurlah, tiada pendakwaan dimulakan terhadap peserta-peserta.
Fakta
Pada 7 Jun 2006, peguam-peguam telah berjalan ke Ibu Pejabat Polis Bukit Aman untuk membantah penyalahgunaan kuasa oleh pihak polis apabila menguruskan kes-kes jenayah berhubung peguam-peguam.
Analisa
Cara menunjuk perasaan dengan perhimpunan/perarakan bukannya satu cara yang baru yang hanya dilaksanakan oleh peguam-peguam kini.
II. Isu kritikan terhadap Badan Peguam/Majlis Peguam
Fakta
Badan/Majlis Peguam pernah menegur dan mengkritik pihak Kerajaan dan pihak Pembangkang.
Fakta
Badan/Majlis Peguam masih bekerjasama dengan pihak Kerajaan dan pihak Pembangkang terutamanya dalam isu-isu penggubalan undang-undang.
Fakta
Badan Peguam terdiri dari lebih kurang 12,600 ahli di Semenanjung. Kebebasan bersuara dan kebebasan bertindak oleh ahli-ahli dalam konteks Badan adalah nyata dan terjamin seperti yang dilihat dalam mesyuarat-mesyuarat AGM dan EGM dan pada peringkat jawatankuasa-jawatankuasa, dan dalam forum-forum seperti laman web www.malaysianbar.org.my dan kumpulan-e.
Fakta
Dalam artikel yang diterbitkan dalam theSun bertajuk “Without fear or favour” oleh KT Chelvi pada 24 Oktober 1996, dinyatakan:
Asked if lawyers have fought for justice in this country, only 41% of the 100 people polled said that they have. Fifty-nine percent said no. One of them, a lawyer himself, said: “I am a lawyer and it is very sad for me to say that how much a lawyer fights for justice depends on how much he is being paid.”
The legal profession, unlike many other professions, not only owe a moral duty to fight for justice but also a statutory duty imposed by the Legal Profession Act 1976.
…
An overwhelming 82% of the people polled said that lawyers should comment on government policies. A retired civil servant in his early 70s said: “I have read the Attorney General’s comments castigating the Bar Council for being vocal. The bar has a duty to point out the injustices in society. Nobody has the right to prevent it from performing its moral and statutory duty.…
Observation from the poll revealed that though the Malaysian Bar has in some ways made its presence felt in our society, it is far from being perceived as a movement crucial to democracy or a movement so very important.The Bar Council needs the people’s support to keep on going strong. It should concentrate on forging a closer relationship with society and start canvassing for support.
Analisa
(1) Setiap keputusan atau resolusi Badan/Majlis Peguam berkenaan isu-isu semasa, nasional dan kepentingan awam mempunyai dasarnya atas alasan-alasan ideal humanitarian atau undang-undang antarabangsa hak-hak asasi manusia. Menolong mengurangkan penderitaan manusia menerusi undang-undang menjadi salah satu tujuan tindakan Badan/Majlis, tanpa mengira genus, kaum, bangsa, kepercayaan agama, pendirian politik, pangkat sosial atau kewarganegaraan.
(2) Sesiapapun bebas untuk menjanakan perbincangan dan pendapat-pendapat serta menggerakkan apa-apa “revolusi” dalam Badan/Majlis Peguam tertakluk prinsip-prinsip demokrasi dan good governance.
(3) Sebenarnya, ramai ahli-ahli Badan Peguam dan rakyat Malaysia telah dahulunya kondem Badan/Majlis Peguam kerana tidak cukup menggunakan kemahiran undang-undang peguam-peguam untuk menolong masyarakat. Sekarang, ada ramai pula yang menyatakan Badan/Majlis Peguam keterlaluan.
III. Isu pembahagian Badan Peguam di antara peguam-peguam baru dan berpengalaman
Fakta
Peguam-peguam yang lebih berpengalaman sering medidik, memberi pandangan, sokongan dan keyakinan kepada peguam-peguam baru untuk selalu mempertahankan keadilan tanpa perasaan takut atau sikap memihak/berat sebelah.
Fakta
Seksyen 46A(1)(a) Akta Profesion Guaman 1976 (yang melarang peguam-peguam di bawah 7 tahun untuk menyertai apa-apa jawatankuasa atau bertanding untuk menjadi ahli Majlis Peguam) telah dimasukkan pada 1978 oleh Kerajaan kerana ingin mengawal cara dan pengaruh peguam-peguam baru dalam Badan Peguam. Kerajaan masa itu tidak berpuas hati dengan tindakan Badan Peguam meluluskan resolusi memboikot perbicaraan-perbicaraan di bawah Essential (Security Cases) (Amendment) Regulations 1975 atau ESCAR atas alasan bahawa prinsip undang-undang jenayah biasa tidak terpakai, dan Kerajaan telah membuat andaian bahawa peguam-peguam muda yang telah mengerakkan resolusi tersebut.
(Ini adalah satu contoh baik bagaimana isu-isu undang-undang, politik dan kuasa tidak dapat dipisahkan, dan bagaimana niat Badan Peguam boleh diputar-belitkan menjadi isu berbau politik untuk mengawal Badan melalui seksyen 46A(1)(a). Jika kita tidak berwaspada, Kerajaan pasti akan seterusnya cuba untuk menyekat kebebasan Badan Peguam.)
Fakta
Setelah usaha-usaha dan kempen tetap Badan dan Majlis Peguam, peruntukan 46A(1)(a) telah pada 2006 dimansuhkan.
Fakta
Dalam usaha-usaha dan kempen tersebut, peguam-peguam aktivis tidak pernah mengambil kedudukan bahawa semua ahli pucuk pimpinan Badan/Majlis Peguam mesti terdiri dari peguam-peguam baru, hanya bahawa larangan oleh Kerajaan tersebut mesti diketepikan atas dasar ia berlawanan prinsip kebebasan dari diskriminasi – lihat penghakiman minoriti dalam Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165. Malahan, seruan adalah supaya penggabungan tenaga kerja dan idealisme peguam-peguam baru dengan tunjuk ajar, pengetahuan luas dan pengaruh peguam-peguam berpengalaman akan lebih efektif dalam memajukan Badan/Majlis Peguam.
(Seumpamanya, Jawatankuasa Peguam-Peguam Muda Nasional selalu terbuka kepada peguam-peguam samada baru atau berpengalaman, tidak terhad hanya kepada peguam-peguam baru di bawah 7 tahun.)
Analisa
(1) Sejak pemansuhan peruntukan tersebut, adakah terdapatnya penukaran tuju hala atau misi atau visi Badan/Majlis Peguam? Adakah semua ahli pucuk pimpinan Badan/Majlis Peguam terdiri dari peguam-peguam muda? Tidak.
(2) Sebenarnya, apa yang telah dicapai sejak pemansuhan adalah lebih kerjasama antara peguam-peguam baru dan berpengalaman, dan sikap yang lebih terbuka dan inclusive dalam perbincangan isu-isu. Peguam-peguam baru dari seluruh Semenanjung juga berperasaan lebih empowered, dan lebih ingin menolong Badan/Majlis Peguam mencapai objektif-objektifnya.
(3) Yang amat merangsangkan adalah bahawa ramai di antara peguam-peguam berpengalaman menyokong pelbagai inisiatif baru dan berlainan yang telah diperkenalkan kini. Sebenarnya, ramai yang ingin menggerakkan lebih inisiatif dan lain yang nampaknya lebih liberal tetapi sebaliknya, ada di kalangan peguam-peguam baru yang mengambil pendirian lebih konservatif atau berhati-hati! Dilihat juga peningkatan sikap bertoleransi, “pertunangan” melalui perbincangan secara rasional dengan alasan-alasan bernas (walaupun berhubung perkara-perkara yang kononnya “sensitif”) dan penerimaan cara berfikir yang luas di kalangan ahli-ahli baru dan berpengalaman – ini harus diteruskan kerana ia adalah amat positif bagi Badan/Majlis Peguam.
(4) Perarakan Walk for Justice telah mendapat sokongan dari majoriti besar Badan Peguam tidak kira peguam-peguam baru atau berpengalaman. Lihat betapa efektifnya perarakan tersebut. (Dan ramai peguam-peguam telah memberi saranan untuk mengulanginya seperti apabila Raja Petra, Teresa Kok dan Tan Hoon Cheng ditahan!) Sejak kebelakangan ini, dalam tempoh beberapa tahun dari pemansuhan peruntukan buruk tersebut, nampaknya perhubungan antara peguam-peguam muda dan berpengalaman dalam Badan Peguam lebih erat, lebih bersatu dan lebih mengikat terutamanya dalam isu-isu nasional dan kepentingan awam. Sungguh benarnya pernyataan Presiden dalam temuramah di atas apabila beliau menyatakan: “If there is a violation of a principle, we are always united.”
(5) Seringkali, dalam sebuah institusi besar, mesti terdapatnya minoriti yang mempunyai pendapat yang berbeza dengan majoriti. (Ada jenaka bahawa jika 12,600 peguam dalam satu bilik, sudah pastinya terdapat 12,600 pandangan berbeza!) Pendapat-pendapat kumpulan minoriti amat penting, dan proses perbincangan dan penghujahan (seperti dalam Mahkamah!) mesti diteruskan. Ruang mesti diberikan untuk pendapat-pendapat tersebut diluahkan walaupun ada di kalangan pendengar-pendengar yang tidak suka mendengarnya. Fikiran kita mesti selalu terbuka, dan banyak kali ada pandangan kami yang mesti ditukar kerana salah. Jadi ada peguam-peguam yang menyokong ISA misalnya, dan mereka berhak menyuara atau membantah cara Badan/Majlis Peguam memperjuangkan hak-hak asasi manusia menentang penahanan tanpa bicara.
Secara kesimpulan, memberi label-label kepada sebarang perkara amat bahaya, tetapi jika ia perlu untuk tujuan perbincangan sahaja, sejak beberapa tahun ini saya telah nampak bahawa pembahagian peguam-peguam “baru” dan “berpengalaman” tidak lagi tepat. Nampaknya percanggahan hanyalah bagaimana atau cara perkara-perkara perlu dibuat dalam mencapai visi dan misi yang sama. Bukannya objektif yang berlainan. Adakah kita memeluk cara yang berlainan dan baru, atau mengikut cara yang biasa dan telah diuji. Adakah cara yang dikatakan berlainan atau baru juga pernah dibuat tetapi kita yang telah lupa. Adakalanya cara yang dikatakan berlainan atau baru juga tidak baik. Ataupun kita perlu menerimapakai hasil campuran kedua-dua versi biasa dan baru. Jika label benar-benar perlu, lebih penting untuk memberikan ungkapan deskriptif seperti “pro-ISA” atau “anti-ISA”, “pro-kebebasan” atau “anti-kebebasan” dan “pro-justice” atau “anti-justice”; sepertimana yang telah diterangkan oleh Presiden Badan Peguam.
Cara atau pengaruh yang mana lebih efektif bagi Badan/Majlis Peguam dalam memperjuangkan isu-isu semasa, terpulanglah kepada ahli-ahli dan rakyat Malaysia memutuskannya.
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THE FOLLOWING IS AN EXCELLENT AND ANALYTICAL PIECE PUBLISHED BY A LAWYER IN AUSTRALIA ON THE PANEL SET UP TO INVESTIGATE THE SACKING OF THE JUDICIARY IN 1988. IT IS A MUST READ.
Independent Committee into Dismissal of Judges in 1988.
INTRODUCTION
“The myth about existence of only things scientists can find and only things theories predict, is just that, a myth. Out of an infinite number, diversity and variety of myths made possible by the mystery of existence, atheists arbitrarily choose to believe in one pessimistic myth about existence of only things scientists can find; and only things theories predict” (Kevin M. McDaniel).
Lawyers likewise have settled upon us this pessimistic myth as a rational default position. And there are those who insist, a belief in such a pessimistic myth is necessary in order to be rational, law abiding, fair, just or simply sane.
However because the truth is just that, a myth is a myth, it is also perfectly reasonable therefore to choose the most optimistic myth about their (lawyer’s) version of the law as a rational default position.
Such a rational default position when pushed hard enough with other well worn urban myths, anecdotal evidence of corruption (and the perceived dominant role by one person, in the sacking, the Malaysian Bar's bette noir, one Dr. Mahathir Mohammed former prime minister of Malaysia) it leads inevitably to belief in the myth about the law and the Malaysian Bar’s interpretation of it; that lawyers can find things that legal conventions and theories predict; and everything else that enables us to have the highest esteem in their beliefs and their purposes. (my emphasis).
I will refrain from quoting or adapting any further material from Kevin M. Daniel from whom I have sourced the outline of my opening remarks.
Although the impact and the dimensions of his thoughts as expressed are critical to understanding at the introductory level, any analysis of the Report of the Panel of Eminent Persons to examine the 1988 Judicial Crisis in Malaysia (“the Report” and “the Panel”) cannot be overstated, I will rely on the evidence from the vents lading to events that led to the sacking then to the 20 year old Panel's findings.
It is my belief that a proper and balanced analysis of the Report and the events that give rise to it can be undertaken without embellishment or adornment of the facts.
THE MYTH OF “Terms of Reference”
The Panel of its own material is a self serving forum. The composition and authority by which it came into existence is equally a manifestation of the same self serving interests of the sentient mind behind the Panel at all times, the Malaysian Bar.
In an effort to lend legitimacy, a cosmetic semblance of dimension and depth to the Panel and its purpose, the Malaysian Bar had pulled together a raft of loosely knit interest groups referring to these as ‘various other groups’ in support of its star chamber.
However on closer examination it could hardly be said that these various other groups were in any way representative of the broader community in Malaysia or that they were independent or impartial to legitimise such an inquiry. And finally for good measure in its list of cohorts the Malaysian Bar adds the media, but is careful to be non specific of this fourth estate.
INDEPENDENCE AND LEGITIMACY
By the Malaysian Bar’s involvement in this inquiry, the Panel and its findings are deprived of the character of independence it craves. Not that the removal of the Malaysian Bar’s involvement would in any way have necessarily cured that defect.
One merely has to consider the political complexion and the position the Malaysian Bar and those other named groups driving the inquiry had already assumed against the real target of the Panel’s undisclosed object, Dr. Mahathir Mohammed.
More important, one wonders what the real purpose of the exercise was, considering the Panel lacked judicial, quasi judicial, legal or moral authority or coercive force that could in its wake prescribe or enforce the desired remedies the Malaysian Bar claimed to be pursuing by the Panel.
The Panel is and was incapable of recommending prosecution or referring its findings to a higher tribunal capable of reviewing the events of 1988. It had no capacity or coercive force or influence to affect its desired outcomes, whatever these may have been, obscured by the heat of vengeance, though not quite stated in those terms in its objectives. In short the Report is of little legal, jurisprudential or moral significance.
More damaging to the credibility of those behind the idea to set up this Panel are the statements of the Malaysian Bar through its president. Her statements ridicule the Malaysian Bar’s claims of upholding the virtuous principles of fairness, equity, justice and transparency in its endevour to bring closure to a matter otherwise long dead and buried.
The Panel it seems turned out to be nothing more than a tool designed to exact vengeance from an individual not of their ranks, who it appears made mockery of their professional incompetence and the arrogance of their ignorance.
BALANCE
This challenge for the Malaysian Bar should have been found in the dichotomy of the perceptions of law and justice held by them as legal practitioners and officers of the courts on the one hand and those same concepts as understood by consumers of legal services including the executive on the other.
The problem though for the Malaysian Bar appears to have arisen from its inability to draw the distinction between justice as a process and justice as an outcome.
The absence of a consultative process to include opposing points of view may forever remain a blemish on the credibility of the Malaysian Bar unless of course its members who understand the flaws in the proceedings speak up about it sooner rather than later.
The Panel’s findings appear to have been pre determined judging from the selective nature of evidence put before and accepted by it from one interested party alone.
In the absence of any countervailing evidence or dissenting views submitted by any other of the interested parties the subject of the Panels Inquiry, either in terms of written or oral submissions, the terms of reference, the entire purpose of the Inquiry, beginning with the process of submissions to the selection of the Panel was conceptually flawed from a legal, constitutional and moral standpoint.
A fatal flaw in the integrity of the Panel and its findings lay in its composition. It was an appointment by one side. Being a little unkind I would go so far as to suggest it bore all the hallmarks of a kangaroo court or a star chamber.
THE ISSUES
It is yet to be determined (20 years on form date of the event of 1988 and from publication of the Panel’s Report in 2008) what grevious offence so vital to the integrity of Malaysia’s judiciary or its constitution was committed that was so radically different to similar events that occurred in other commonwealth jurisdictions, for it to be so doggedly pursued by the Malaysian Bar and its allies.
There are three branches of government recognized in the traditions of the Westminster system of constitutional government. The executive, judiciary and the legislature, like the father the son and the holy spirit they are not three gods but three persons in the one godhead. And as it occurs in that other holy trinity, the trinity in government vests much power in one.
Standing between these like a geographic border, the imaginary line between states, is the equally invisible and sometimes illusory doctrine of the separation of powers. As fictional as any other doctrine (or law) sometimes may seem in practice, the fact remains that these doctrines and laws are fundamentally recognized more in the breach than for their observance at anytime anywhere.
So in 1988 a powerful and impatient executive, sick of the ‘cap in hand’ sub culture so inimical to a rapidly developing Malaysia burdened by the sycophancy and obstructive nature of a bunch of interlopers in the civil service and judiciary, took on the perceived omnipotence of the judiciary.
Not laid before the Panel however, was the missing and critical evidence that certain elements of the judiciary then, attempting encroachment into the role of the executive and legislature through other forums, were discovered and challenged.
The legislature by its chief chose to rise up to the challenge, call the bluff of the seemingly irrelevant doctrine and crossed the line. Interestingly no one died as a result. Malaysia went on to attract record foreign investment and rid itself of much of its third world status (except in the minds of those who blindly worship the west and all of its institutions even though they understand little of it or its application and consequences to them).
In examining the relevance, the importance and the impact of this incident which has farcically grown into a modern day Spanish inquisition, one has to take a closer look at the conventions, doctrines and laws that govern the conduct of the three branches of government.
It would then be useful to compare these in the context of the doctrine of the separation of powers, and the individual powers of each of the other branches of government, these being the legislature and the executive to assess its impact arising from any breach of convention of the nature complained of, then examine the Report and reasons for the Report to make better sense of it all.
BACKGROUND IN BRIEF
In this whole saga there are two protagonists. One being a former Prime Minister of Malaysia, unrepresented at the Inquiry and without any input to controvert or to contribute to the terms of reference. The terms of reference broadly speaking in this instance is a roadmap created by the other protagonist, prominent members of the Malaysian Bar.
To add to the farce, neither the Panel nor its Report were either independent or impartial evidenced by a statement attributed to the president of the Malaysian Bar following release of the Report.
The president of the Malaysian Bar Datuk Ambiga Srinivasan unfortunately and perhaps recklessly appears to confirm what has long been suspected as bias in the minds of elements of the Malaysian Bar as protagonist, either on its own or acting as a conduit for the frustrations of the former Lord President Tun Salleh Abbas and disgruntled elements in government, to exact a form of revenge against Dr. Mahathir Mohammed.
That part of Ambiga’s speech that seeks to convey the Malaysian Bar’s settled position prior to the appointment of the Panel and its Report appears to be contained in the following quote from her speech;
” the bar has been steadfast in supporting the judges whom we knew had suffered a gross injustice in 1988”.
The operative words in that statement above being “whom we knew had suffered a gross injustice in 1988”.
By what means and how Dato Ambiga know that the events of 1988 resulted in a “gross injustice to the judges” she clearly fails to establish.
Any evidence to support such a bold prescient statement and the claim behind it should have been placed not before the Panel but a properly constituted tribunal or court within Malaysia for it to have been examined in light of all other “evidence” later presented to the Panel.
It is easy to draw the inference by reference to that particular element of Datuk Ambiga’s speech, that perceived bias can be said to have been present within the minds of the Malaysian Bar (and by implication their stalking horse the Panel) prior to empanelling the so called assembly of Eminent Persons.
And by virtue of that element of perceived bias, now confirmed in her speech which turns out to be actual bias, participation by the Malaysian Bar in the process at any level has clearly tainted the integrity and independence of the Panel.
It appears conclusively that the Panel was clearly stacked, which therefore now begs the question; “should the Panel have continued with the process, in the absence of any input from any other party to its proceedings? perhaps a party that could have validly represented the interests of Dr. Mahathir or the government; or a party that could have validly challenged the inquiry or provided evidence to controvert the assumptions laid before the Panel?
And finally, was this a witch hunt by an interested party such as the Malaysian Bar and if so the, for what reasons was the Malaysian Bar seeking to proceed with the Panel 20 years after the event? Considering the distinct possibility that with the death and ageing of many of the witnesses, the quality of the evidence available could have well been eroded if not rendered unreliable and compromised for those very same reasons of the effluxion of time?
REMOVAL OF JUDICIAL OFFICERS
There is ample evidence and a plethora of material from all over the commonwealth including nations from wherein members of the Panel were selected to show clearly that removal of judicial officers is not as sacrosanct or rare as is made out to be by the Panel and the Malaysian Bar in their findings.
In fact a lack of understanding of the conventional doctrine of the separation of powers appears to be perhaps where the problem actually lies.
Examples of Breaches of Doctrines and Conventions
In 1975 the popularly elected government of Edward Gough Whitlam in Australia was sacked by the then governor general of Australia the late Sir John Kerr on the advice of members of parliament with the concurrence and written opinion of a judge of the High Court Sir Harry Gibbs.
There was much debate that followed at every level of Australian society. Recriminations followed. But the debate remained at a mature and although emotional level relevant where valid arguments given the opportunity to be ventilated, controverted and argued fairly won the day. The winner was in the end a more politically mature Australia.
The incident it was later discovered with the benefit of some research by scholars not to have been unprecedented. A previous government in the 1930’s in the state of New South Wales had also been sacked in similar circumstances by the governor in breach of a convention.
INTERFERENCE IN THE OFFICE AS OPPOSED TO THE EXERCISE OF POWER
Interference in any of the three arms of government by the other is generally perceived as being detrimental to the independent and efficient functioning of government as it has the potential to erode not just the independence of each of the three arms of government producing potentially undesirable outcomes that in theory could lead to a dictatorship.
There is an attempt and a convenient one at that to re cast the events of 1988 into an act that was illegal or unlawful perpetrated by one individual, that being the Prime Minister of Malaysia during that period, an event for which its is implied there were disastrous consequences for the integrity of the judiciary and the doctrine of separation of powers.
What’s not understood or clearly explained is the fact that even if Dr. Mahahtir did sack the judge, his actions in doing so was neither unlawful, unprecedented nor one which the Prime Minister (assuming he did it alone) did not have the legal power at his disposal to carry out.
Even if he did sack the judge and failed to follow procedure as laid out in the constitution there is nothing to suggest that he may not have cured the procedural defect subsequently or retrospectively.
The fact remains that the power did lie with his government to remove members of the judiciary even if that meant doing it without an address to both houses of parliament.
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There are instances where judges have been removed by the executive simply making the tribunals in which judges sit or their positions redundant. In a particular case which High Court judge Michael Kirby in his contribution to Tun Salleh Abbas’ book May Day makes reference. A judicial officer of the Industrial court in Australia was practically removed from office in this way. There was no reference to both houses of parliament no tribunal to inquire into his conduct. Just simply a redundancy of his position was declared and the judicial officer was removed from office.
In doing so the executive and the legislature had simply overcome the burden of having to carry out the task through the conventional means of having to proceed through the cumbersome exercise only after an address to both houses of parliament.
COMPOSITION OF THE TRIBUNAL
More recently of course there was the case of the sacking of the chief justice in Pakistan which resulted in rioting and mass hysteria by the bar in that country and by supporters of opposing political parties.
One notes that Pakistan has had limited experience as a democracy and the events referred to occurred under a military dictatorship in a fractured lawless society which Malaysia is not.
The Panel member from Pakistan therefore may not have been a good choice considering her limited exposure to the conventions, the rules and the workings of a bench and a government in a democratic environment.
The notorious case of the sacking and jailing of former Queensland Chief Magistrate Di Fingleton is another case in point. Australia has had a number of high profile cases involving judicial misconduct wherein those (apart from Fingleton and Vasta) the latter who resigned rather than face the prospect of an ignominious trial by media and government.
The Di Fingleton matter is so radically different from any other and can draw no comparison or analogy to the Salleh Abbas matter. It is perhaps an example of where the judiciary in their arrogance can be so fundamentally wrong and ignorant of the basic principles of law and the doctrine of the separation of powers, that they end up shooting themselves in the foot in the exercise of their powers.
In the Queensland case of Di Fingleton her sacking and subsequent jailing by her peers at the state level, before that shameful and erroneous decision was overturned by the High Court of Australia, was an act of arrogance and ignorance carried out at the expense of the principles of justice against a fine chief magistrate, jurist and reformer.
And from the ranks of Australia’s hallowed legal profession is selected a representative to the Panel to judge not the merits of the events of 1988 but to hang Dr. Mahahtir instead.
THE EVENTS OF 1988 AND THE BERTHELSEN AFFAIR
It is said that the Berthelsen affair was a catalyst in the whole affair which culminated in the sacking of the judges including Salleh Abbas in 1988. Berthelsen, a foreigner on a work visa in Malaysia had his visa revoked and was asked to leave the country.
It is further alleged (a matter unfortunately up held by the appeal courts then) that Berthelsen was denied natural justice in that he was not afforded the opportunity to be heard in appealing the decision of the Director General of Immigration.
It is well established in law that the physical presence of a defendant before a court in any jurisdiction including Malaysia is not a necessary pre requisite in order for that party to be heard or afforded justice. This is particularly so in matters involving immigration law where the applicant/ appellant may be abroad (offshore) at time off the hearing.
Of paramount importance when weighing up the right to be physically present for a hearing and the danger of the presence of the ‘offender’ in the circumstances for whatever reason, is the opinion of the Director General of Immigration as was the case in the Berthelsen affair. There is no reference to this point and whether the appeal courts dealt with such a point in considering the matter.
There was no right to Berthlesen to remain in Malaysia. The grant of a visa to a foreigner (a non citizen) is a privilege granted at the discretion of the host nation, not an absolute right of the non citizen as Berthelsen is and was at the time.
The denial or revocation of his visa was a discretion at the hands of the Director General of Immigration who exercised that discretion. And contrary to what the court of appeal by implication decided in that matter it was not the right of Berthelsen a non citizen in the circumstances to be present in Malaysia (onshore) to be heard in his appeal against the decision of the Director General of Immigration.
It appears the court of appeal not just erred but may have been negligent in arriving at its decision, perhaps fuelling the fire of a conspiracy theory which Dr. Mahathir then may have acted on.
As an example, Australia has excised many of its territorial outlying islands in an effort to deny refugees landing on these islands the right to appeal ‘onshore’ in order to establish their rights to remain in Australian as political refugees.
Regardless of the hue and cry raised by every human rights groups and the legal fraternity worldwide at the time, the High Court of Australia in its wisdom upheld the right of the Minister for Immigration to exercise the powers he possessed to do what he did in this regard.
That matter was decided in the ministers favour inspite of Australia being a signatory to the Human Rights Convention and the Refugee Convention. The fact remains that unpopular decisions can be and often are not illegal or unlawful.
JUDICIAL MISCONDUCT AND JUDICIAL MISBEHAVIOUR
Having considered the Berthlesen matter and the decision of the appeals court, one wonders whether or not it is necessary to labour the point that the other case of United Engineers could well have suffered the same fate of judicial incompetence in the hands of an anti Mahathir coalition of judges. And if that were the case, would it have constituted judicial misconduct or judicial misbehavior?
Sallman in his paper on this subject refers to a number of cases of judicial misconduct, judicial misbehavior on and off the bench which would be worth a read by the Malaysian Bar. The fact of removal of judicial officers and the legality or morality of the issue depends much on a number of factors including the legal and social environment in which they operate. Nothing happens in a vacuum.
Salleh Abbas chose to make an issue out of the events of 1988 and to demonstrate his abject lack of understanding of the process by not resisting the Malaysian Bar’s conduct in empanelling the so called Eminent Persons Panel. It was a self serving Panel appointed to prepare a report he Salleh Abbas so desperately saw necessary to vilify the former prime minster which act has served to reinforce the former chief justices apparent ignorance of how the system operates.
This is just an abridged version of what I chose to communicate on this matter which is a sorry saga in the legal profession, an indictment of the profession on its ignorance of the law and its unrelenting efforts to embed itself in the politics of destabilization of a country whose rank and file workers have achieved so much in such a short time under the leadership of Dr. Mahathir and his government.
Quintin George Rozario
Brisbane
Australia