On 16 January 2010, the Chief Justice in his speech at the Opening of the Legal Year 2010 has called for opinions on whether we should retain our robes, bands, and whatsits as our legal attire. I managed to find the email I posted to the Rostrum, an email based forum I moderate along with Mr. K. Shanumga, where I argued for its continuation from the perspective of an appreciation of history.
Note: Dato’ Peter Mooney, one of the Bar’s most respected lawyers, had expressed his opinion that the Bar should dispense with its usual elaborate attire. I was replying to his email openly on the forum.
I confess that I used to think along similar lines as you have expressed where it relates to open court attire. What need we of these accessories? After all my robe sleeves frequently annoyingly tend to get caught on elaborate door handles and table edges or corners. I often tend to forget bringing it (a legacy of prowling the Subordinate Courts longer than it is healthy) and having to dash here and there to get one only for my matter to eventually get adjourned or written submissions directed (in chambers, of course). I’m always also solving the mystery of the recalcitrant bib. And it’s not like anybody puts money or cheques into that little pocket at the back.
(As an aside, I filched this off a Ministerial Speech in Singapore Parliament about their salaries: This pocket was located at the back so that even the very act of payment would not be seen by the barrister as money matters were considered to be beneath him. So if you look carefully at the back of a lawyer’s robe today, you will see a tiny pouch. That pouch is now all sewn up, so you cannot put any money in it. It has no function, but merely a vestige of a time long passed. That story may not be entirely accurate, but it is dutifully told by one generation of lawyers to the next to emphasise the nobility of the profession.)
I am not embarrassed to say that the greatest function I have ever obtained from the robe is when the back of my pants ripped and it gratefully hid my non-Brad Pitt bottom from everybody’s view. What is more, I used to envy the American lawyers who could wear all kinds of suits to court and pace around the court dramatically whereas we had to stand rooted in our black and whites robed.
But lately, I have revised my opinion on the issue and now have come around to finding meaning in the importance of the robe and its accompanying accessories, although I agree with the jettisoning of the wig (I have my own long hair, thank you very much). I shall take the circuitous route because the revision of my opinion was caused by what I’d like to think is a recent refinement of my thinking about our temporality.
For those uninterested in a vigorous bout of mental masturbation are advised to stop reading this email from this point onwards.
To say the present is informed by the past in imagining or planning the future has become trite. But it is still an important observation. The present is where the area of interaction between the past and the future. The difficulty with living in the present is how fast it goes by. It is gone just as we grasp it. It is not easy at all and we frequently fail.
Eugene O’ Kelly in his book Chasing Daylight explains rather poignantly in his biography of the last 3, 1/2 months of his life of his attempts to do so but fails. And if we want to get all technical and biological, the present will always slip us by because our brain takes a fifth of a second to translate our sensual inputs into sensations and thought.
It is this difficulty in grasping the present that tends to push us more so into the future or the past where things are easier to grasp.
The past is for the most part dead, closed to change or modification except in interpretation of facts, almost like a beautiful piece of art you can hang on the wall and admire. It is certain (and yes I’m assuming the certainty of facts here for purposes of explanation). This is often the past of fundamentalists and their call to return to the “glory days.” The glory days or the golden days is always assigned in retrospective by succeeding generations and not by that generation itself which more often than not had to slog through painfully through that supposed golden age. The present is always bad and like a boat slowly and gently taking them away from their promised land of the past.
On the other side of the present at the modernists or futurists for whom the present is merely a waiting room or launch pad for the glories and triumphs of the future. The past is disdained because of its antiquity, its lack of upgrades, its inability to be changed. The allure of the future is that it is a blank sheet of paper upon which we can draw any image or possibility that we are able. We can paint any possibility with our infinite palette. Yes, it is unknown but we can create our certainty and impose it. So the present is bad or not good enough because it’s not there yet.
I too know the comfort of the past and tend to collapse into sentimentality in its consideration and remembrance. I also know the comfort of an imagined broken or bright future. I was surprised how I could be utterly miserable but comfortable at the same time. I was miserable because the past and the future are not the reality that we are confronted with and it led to disappointment all the time because the present was not the expectation of the past or the future, it was a dynamic interaction between the two. And it is in reality and hence that humans live, thrive, and flourish. That is not to say that we must not dwell in the past or the future. We can do so but we should do so meaningfully and purposefully, not as a mean to escape our fear. And this fear I speak of is the fear of the present.
So I started to pay attention to the dynamics, which basically means paying attention to the present, living in it, immersing myself in it. I claim no insight but what I did notice is that the present is a taut rope upon which we walk, it is tension. When we live too much in the past or the future, the tension of the present slackens. And when this tension slackens the present is overrun by other the past or the future without balance and forces the present to rush headlong into either the future or the past. The lesson I have drawn from this is that we should, if not must, maintain this tension both in ourselves, in our institutions, and in our appreciation of things. We have so many fears despite living in wholly man made environments.
I sometimes think these fears are partly biological and habitual – for 400,000 years human beings for the most part have only lived in caves, in small villages, in primitive environments. It is only in the last 200 years that we are living in the trajectory of our present civilisation – massive dense cities, staying in large apartment blocks, traveling not by foot or beast but by vehicles beyond any imagining even 50 years ago. Our bodies were not made for this lifestyle and has not adapted which is why we live in times of great stress and fears. As a species we still do not know our place or role in this world when blessed with the most powerful intellect on this planet. The arrogance that we are God’s creation and that all on our planet is for our use and disposal no longer holds true. The possibility that we can be wiped out and the planet still goes on for billions of years is real if not true. Global warming may wipe us out but not all other life. So I’m guessing another contributing reason to this stress and fear is because at some unexpressed unconfronted subconscious level we have come to the painful realisation that perhaps we are not at the centre of God’s plans whatever these may be.
So coming back to how all this applies to the issue of robes, the robes and its accompaniments for me is the past or that link to the past which represents tradition – a heritage of the nobility of the legal profession and the traditions of ethics, justice and industry of a lawyer. A robe has no meaning when it is hangs idly. But meaning is breathed into it when it rests upon our shoulders. It becomes alive with our voice and our vigorous arm flappings or table thumpings at the Bar. On a sensual level, I see the robe as armour of justice because the added layer of cloth gives me an added sense of protection from the madness of injustice on our Bench. And on a verbal and shallower level, to dispense with the robe would bring considerably shorten my repertoire of lame jokes about disrobing.
More seriously, dispensing the robe demolishes the distinction between the profession of the lawyer from that of an excellently dressed waiter, a corporate consultant, or worse still, an audit executive. The loss of physical distinction also would create a loss in the mental distinction between the lawyer and those in other suited professions. This mental distinction is what we must save – that the lawyer is not simply a “legal executive” that does what his client wants.
He has a higher duty that trumps all his other duties to his client, the court (not the judges) and clerks – and that is his duty to justice. No other profession makes demands of their practitioners except perhaps that of the bench. There is no duty to justice on the engineer, on the doctor (although there are ethical demands – ethics is only the handmaiden of justice), on the corporate consultant, on the banker, on the cage cleaner at the zoo. And there are severe repercussions in failing to adhere to our duties justice.
So the robes maintain that tension, that pull of the past so necessary to the dynamics of the present.
And should we still wish to keep the robe then we must realise we have a duty to it. We are fortunate that the same duties to it are those to justice as well, so we must only do justice in the robes. Let it not be used to cloak lies, to shelter half-truths, to cover up male fide and dressing it up as bona fide.
The robe as the gavel are powerful symbols and that is where its importance and its use lies. If and when we are able to do this then our robes will not be just robes. If we carry out our duties as we are supposed to by justice then the sacred robes of justice will manifest itself into our reality and rest upon our shoulders discreetly. We may not be able to see the difference but I believe we would certainly feel it.
I hope that one day we all become worthy of such a robe.
Rosdila Ngah Roslan ialah fellow orang asli MCCHR dari 1 Mac hingga 31 Ogos 2020.…
The Malaysian Centre for Constitutionalism and Human Rights (MCCHR) a.k.a Pusat Rakyat LoyarBurok is a…
Rosdila Ngah Roslan ialah fellow orang asli MCCHR dari 1 Mac hingga 31 Ogos 2020.…