LoyarBorak #2: How Relevant Is The Bar Council? (Part 1)

LoyarBorak features discussions of selected issues in either written, video, or audio formats.

LoyarBorak #2 focuses on the role of the Bar Council, in view of the on-going Bar Council elections. Postal ballots must be returned by 30 November 2010, and the results are expected on 1 December 2010.

This LoyarBorak is moderated by Marcus van Geyzel (who also throws his views into the ring), and the borakkers are Adriana Leu, Foong Cheng Leong, Grace Wong, Lee Shih and Siti Shahrom, who all approach the discussion from their different experiences and positions in the legal profession. Please borak along in the comments section below.

If you’d like to be a borakker, email Marcus at marcus.van.geyzel[at]gmail.com

Marcus: For you personally, what role do you expect the Bar Council to play?

Adriana:

As someone who has just recently sat for the CLP Professional Practice Paper, the first thing right off my mind would be section 42 of the Legal Profession Act 1976. However, technically speaking, section 42 describes the many roles that the Bar Council is empowered to perform.

Ideally, I would expect the Bar Council to be that unifying presence that protects the integrity of our profession and speaks effectively for its members in relation to all issues which affect us. Further, I expect it to be a leading force in our society in pursuing the cause of justice.

Cheng Leong:

The role of the Bar Council is already set out in the Legal Profession Act 1976 but for me personally, the Bar Council should play a bigger part in protecting its members.

Grace:

To me, the Bar Council has always been the representative body of the legal profession. Its wide range of functions include upholding the cause of justice without fear or favour, to represent, protect and assist members of the legal profession and to express its view on matters affecting legislation and the administration and practice of law in Malaysia. In essence, they act as the voice of the legal profession. (Ok, this is a blatant reproduction of the Legal Profession Act).

Lee Shih:

I recognise the great importance that the Bar Council plays in effecting the Bar’s object of upholding the cause of justice. The Bar Council representatives are our front-line in speaking out against injustice.

However at the same time, the Bar Council has to balance this role with that of protecting and advancing the interests of its members. Such a role would include improving the working conditions of lawyers and improving the standards of the profession, e.g. legal professional development.

Siti:

A professional body wearing many hats, led by honesty and integrity. This includes regulating the admission of competent and qualified lawyers, preserving the quality and reputation of the profession, supervising the conduct of lawyers and disciplining them, regulating the legal profession in the interests of the public, improving access to justice and educating the public on the law, representing and promoting the interests of lawyers, and be the leading voice on law reform and public interest campaigns. Ultimately, the Bar Council should be responsible for upholding the reputation of the profession, fairness and justice and, most importantly, be independent from all political influence.

Marcus:

The borakkers have addressed this quite comprehensively. For me, official scope aside, the Bar Council has two main functions: to look after the interests of its members and to use its position to speak out and lobby against injustice in general. Every Council member should be clear on this.

Marcus: Up until now, how would you rate the Bar Council’s performance of its role you mentioned above?

Adriana:

I doubt I am in any position to comment given my brief time in this profession. However I have had many opportunities to speak to experienced lawyers and received many diverse opinions about their views of the Bar Council and practice in general. I’ve come across many disillusioned ones, some are still hopeful and many others are finding ways to survive in this profession.

I think one thing that we can all agree on is that the Bar Council is definitely no fence-sitter. On many issues, it has spoken up and stood its grounds. But it is a thankless job and everyday we still hear grouses and complaints by legal practitioners about the KPIs, SRO compliance and enforcement and the Bench’s perceived lack of independence.

Funnily enough, I’ve noticed that the people who tend to criticise the most are also the ones who don’t bother to take part in the work of the Bar Council, or even to participate in elections, for example. So, perhaps before we start to rate the performance of the Bar Council, we should look at ourselves instead. The Bar Council is only a name. What it does, how it does it, how strong or effective it is ultimately depends on us, the members. So the question should perhaps be: how would we rate ourselves as members in making the Bar Council the force we want it to be?

One way to start is to look at those ballot papers members have just received. How many of us will bother to vote?

Cheng Leong:

Unfortunately, not up to my expectations. The Bar Council has turned into a press release machine. When the 3 legal aid lawyers were arrested for trying to assist people who were arrested in the Brickfields police station, all we were able to get was a Suhakam inquiry. When the lawyers who were distributing the “Red Book” were arrested (and subsequently released fortunately), a press statement was once again released, but there was no news worth mentioning. We are now at a stage where lawyers are arrested here and there. What happened to the days where lawyers were respected?

Grace:

I am indeed proud to say that the Bar (either through its various committees or otherwise) has lived up to its words when it comes to reaching out to its members. In fact, the Bar has gone beyond reaching out to its members; it now extends its “hands” to reach out to members of the general public through university visits, Orang Asli trips, and many other activities.

However, it is rather disappointing also to notice that the Bar in recent times seems to issue press releases and that’s it! This is noticeable in the recent amendments to the Subordinate Courts Act and even the implementation of the KPIs and the Fast Track System which affects the legal profession as a whole.

Although there are talks and forums organised, I would have thought the Bar ought to have taken a more active role in voicing the grouses of its members.

Lee Shih:

The Bar Council has definitely been vocal through the issuance of statements to speak out against injustice. When you look at other jurisdictions, the Bar Council’s equivalent body would focus very much inwardly at the interests of the members. Here, the Bar Council (representing the Malaysian Bar at large) has done well in creating awareness of issues.

In terms of advancing the interests of its members, while steps have been taken, I think more can be done in terms of improving conditions and standards in general. This is a point that Siti makes. While a separate body, the Disciplinary Board, is in charge of meting out disciplinary punishments, Rules and Rulings can constantly be revised and updated to ensure a high level of professional conduct. At the same time, if certain aspects of the Rules governing practice have become archaic or outmoded (for example, certain parts of the Publicity Rules), then these can also be updated to reflect modern practice.

Siti:

Frankly speaking, I think the Bar Council could and should do more in terms of improving the quality of lawyers in the country. Perhaps, the best way forward is to filter at the entry point and impose a strict system of monitoring the conduct of its members. Lee Shih made a good point about constantly revising Rules and Rulings governing practice. I am sure many would agree that lawyers who cheat, fail to abide by the Rules and tarnish the reputation of the profession should be suspended and in severe cases, disbarred, regardless of their social standing and political influence.

There should be no two ways about it. The Bar Council should be firm. Lawyers are (generally) not and not meant to be crooks. So, say no to corrupt lawyers. Say no to touts. Say no to killer lawyers.

Marcus:

Mediocre. Whilst realising that effecting change is difficult, I think the Bar Council’s efforts in addressing issues have been half-hearted. Cheng Leong mentioned “press release machine”, and it’s not the first time I’ve heard that phrase used to describe the Bar Council. When Ambiga was president, I used to have non-lawyers say to me that I should be proud of the Bar Council. This was largely due to the successful organisation of the “Walk For Justice”, as well as her attitude of continuing to speak up despite pressure and accusations of being an “opposition party”.

It has been downhill since then. Incidents come and go, and all the Bar Council does is cobble up a press release, which will be ignored, as everyone knows that there will be no strong follow-up. I wonder what Council members are thinking when they attend their meetings, hold their discussions, and … do nothing.

Why bother being on the Council if you don’t intend to do anything substantial? Perhaps there is some thrill or status in holding a position. It is hypocritical of Council members who say that the government lacks “political will” to implement change, when they themselves do nothing with their positions in the Bar Council. Rumours of insider politics and factions do not help to dispel the notion that the last thing some Council members have on their minds is justice, let alone the rights of members.

LoyarBorak continues in Part 2.

Adriana is barely a month into her life as a pupil in chambers. She has heard many horror stories about the practice of law even prior to reading law but has remained unfazed and determined to pursue this childhood ambition of hers whilst holding on to the basic ideals of Justice.

Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. When not earning money blogging at xes.cx, he picks up pocket money as an information technology / intellectual property lawyer. He tweets @xescx.

Grace is a young litigation lawyer. She moved from Ipoh to KL this year, and continues to have a love-hate relationship with the madness that is legal practice.

Lee Shih is a litigator in Kuala Lumpur. He just about still qualifies to be categorised as a young lawyer. He has been neglecting his blog but tries to find time to tweet over @iMleesh. He wishes he had as much pocket money as Cheng Leong.

Marcus is a corporate/commercial solicitor who, every year, struggles to find more than a handful of good candidates to vote for. He remains hopeful that a change will come, perhaps through the transperambulation of pseudo-cosmic antimatter. He tweets @vangeyzel.

Siti is a young, enthusiastic tax lawyer who loves travelling, eating good food and salivating over sports cars. She tweet-stalks @sitishahrom.

Tags: Adriana Leu, Bar Council, Bar Council elections, Fast Track System, Foong Cheng Leong, Grace Wong, KPIs, Lee Shih, Legal Profession Act, Malaysian Bar, Marcus van Geyzel, SRO, Siti Shahrom, Solicitors Remuneration Order, Walk for Justice, political will