A response to a senior lawyer’s posting on an email forum on the issue of the Bar Council President’s Press Releases and deals with the Bar Council President’s responsibility, a Bar Councillor’s accountability and what the Malaysian Judiciary should really be doing.
Background: A senior lawyer with 23 years of practise defended the recent criticism against the Bar Council President, Mr. Ragunath Kesavan, opining he should not be singled out because, despite press releases being made by the President, they are collective Bar Council decisions. He points out the President and other office bearers are not paid and claims most lawyers do not recognize their sacrifices in taking up those positions. He suggests that they are unfairly criticized whether or not they do or say something. He moves on to say that legal fees in Malaysia are the cheapest in the region and how he has embraced technology to do things faster and more efficiently until we beat the judiciary at their own game.
Of course the Bar Council is supposed to take a stand on various national issues. Some of our complaints are that they are not focused or absent on the appropriate issues (those that touch our practising lives). These complaints are not without merit – see the Gaza Flotilla press statement issued last year. The 4th paragraph is classic.
The decision is a collective one, but let’s be honest — some fellas are more influential than others in there. It may be a collective one but how reflective are they? (I mean that in both senses of the word)
If the President is merely bound by the entire Bar Council without any element of discretion whatsoever then please replace him with a fictional puppet or something — that will at least reflect supposed working relationship between the office bearers and the rest of those in the Bar Council. Then all 35 members can speak with one voice through the puppet.
No, it is not unfair to single out Ragunath for it.
He is the President.
The buck stops with him — whether he likes it or not. If you want to be at the top, then you must accept that you will be the first one to get hit. As President he has the final say whether to proceed with the statement. If he doesn’t, get the puppet. Somebody has to take responsibility. The President has to be immediately accountable — the rest of the Bar Councillors will also be accountable.
Are you suggesting he retains the presidency but has the accountability of a janitor?
Yes, we elected them but how much of a choice do we really have in our candidates? Seriously. We elect them on account of the impressions that they have given to us that they are capable and are willing to make the sacrifice.
Yes, I am somewhat aware of the responsibilities of the President or even just a normal Bar Councillor. Edmund [Bon] has apprised me of the immense amount of work that is required to be done in Council. But I also know there are a number who just warm seats and easily get elected year in year out (I’ve sat in a few BC sub-committees myself). More importantly, all those that stand for the position know what they are up against — no pay, more BC work, less paying work, lots of criticism. I’m not happy with this situation but it’s there for the taking.
If any of them say they didn’t know this was coming then they have no business standing.
Yes, there are sacrifices to be made — but does that mean we cannot hold any of them accountable? Because they are doing us a freebie service, we must now treat them with kid gloves and always harken to the sacrifices they have made? We must only reserve the most generous praise for them? Or we must pity them the poor things — damned if you do damned if you don’t? Poor baby.
I have heard this line of argument before at the legal aid level and I am not impressed. Once you agree to take responsibility — with or without remuneration — you do so to the best of your abilities. If you cannot do so, don’t stand. If you got in and feel you cannot do it — resign.
Applying your criticism to the legal aid context, if I take up a case pro bono and then mess it up, am I entitled to tell the client, “Look buddy, you didn’t pay me okay? Try to understand my position okay? I got a lot of paying work to do. You’re a freebie. Look at the sacrifices I made to do your case even though I butchered it?” Is this an acceptable standard to be operating at for the Bar Council i.e. mediocrity?
Because mediocrity thrives when criticism and accountability is lacking.
Two words to those who think they deserve such “immunity”: Grow. Up.
In my short career at the Bar, I have seen at least 2-3 manifestations of this case management thing. None of them had any sustainability because it was not a naturally occurring thing shaped from the various stakeholders to the judicial system. This round is no different. It is the same and usual shove it in our faces whilst thumping their chest in the public about what a great job the judiciary is doing. I am far younger than you in practise but I know this whole KPI (Key Performance Index) thing is not going to be the last of it.
The thing is, we have been giving each and every Chief Justice a chance because we have no choice. We either dance to their directions or our client’s cases are struck out or compromised.
But all this talk of procedure, KPIs and what not in truth is really a smokescreen for what the Judiciary really should be doing — reforming itself into a judicial institution that is respected first by its citizens and then by other countries, reconciling and redeeming itself from the ghosts of 1988 as well as all those Chief Justices that have failed during their tenure to do justice.
The Judiciary should be busy trying to reclaim its moral and ethical authority.
For all its crowing about expeditiousness, are any of us impressed with the quality of judgments spurting forth at the Court of Appeal and Federal Court level during the Tun Zaki period? Are any of our Malaysian cases cited overseas by other Commonwealth countries? Did you notice that the test for leave changed twice during his tenure? First Syed Kechik then Jocelyn Tan now back to Syed Something Like Kechik? It was during his tenure that NH Chan, a former Court of Appeal judge, was roused from retirement to write hard hitting critiques against the Federal Court.
But we know that is far, far more difficult to rejuvenate the Judiciary’s moral and ethical authority in the hearts and minds of the nation.
You don’t need a Denning to make a merry go round faster.
But if you are content with that then I apologise for interrupting your standing ovation.
Editor’s Note: This piece has been edited for readability, errors and a more general readership.
Fahri co-moderates an email forum known as ‘LawyersTalk’ with Roger Tan, who founded it about 2+ years ago. LawyersTalk comprises of approximately 8,500+ lawyers from both Peninsular Malaysia and Sabah and Sarawak. Despite this, he tries his best not to sound or appear like a lawyer and often passes himself off as a TV2 drama minggu ini extra or aspiring B-movie actor.