Another Response to the 8 LoyarBurokkers

The resolutions carried by the Malaysian Bar in its recently concluded EGM on 11 May, 2012 have led many to talk and debate about the Bar Council, the Malaysian Bar and its resolutions. Amongst the thoughts which I have had the opportunity of reading, I am particularly intrigued by the views exchanged between Roger Tan and 8 LoyarBurokkers, namely by Edmund BonFahri Azzat, Janet Chai, K ShanmugaMahaletchumy BalakrishnanMarcus van GeyzelSeira Sacha Abu Bakar, and Sharmila Sekaran.

I am, however, perturbed by some of the arguments of the 8 LoyarBurokkers, and I wish to put forth my views here.

At the outset, whilst I am a member of MCA, which is a known fact to the likes of Edmund, Shanmuga, Marcus, and Roger, I hope that this fact, when read together with this article, would not be construed as an attempt by me to be a candidate or to obtain any sort of benefit from the ruling coalition. I see it necessary to highlight this fact not because the 8 LoyarBurokkers have mocked Roger for not expressly revealing his political affiliation, but for the acts of some members of the Bar who, at the height of anger during the EGM, have conveniently made such accusations against those who spoke against the motion at the recent EGM.

With that record set straight, I shall endeavour to put forth my disagreements with some of the arguments of the 8 LoyarBurokkers.

The stand of the 8 LoyarBurokkers

The essence of the 8 LoyarBurokkers’ 2,600-words long article “Fallacies Spun by Critics of the Bar”, to my understanding, are as follows:

  1. The Bar did not prejudge the issues, as the resolutions carried were based on the observations of the monitoring team, whose credibility is undoubted.
  2. The Bar need not condemn the unruly protesters, and it was a fallacy or misapprehension that to be an independent organisation, the Bar must always be even handed or restrained in its remarks.

Whilst I may lack the wisdom of the 8 LoyarBurokkers or that of Roger Tan, it appears to me that some of the fallacies alleged by the 8 LoyarBurokkers do not hold water.

Did the Bar prejudge the issues?

In 900 or so words, the 8 LoyarBurokkers have sought to argue that the Bar did not prejudge the issues. The arguments of the 8 LoyarBurokkers were premised upon the following grounds:

  1. The 12 resolutions carried by the Bar were based on the observations of the 80 monitors, whose credibility are without doubt.
  2. The political or social belief of one would not impair the ability to state the fact of how excessive force was used by the police, or how a fellow Malaysian was assaulted and battered by the police.

Firstly, in support of the 8 LoyarBurokkers’ contention that the credibility of the monitors of the Bar are without doubt, the 8 LoyarBurokkers have cited the names of 5 notable, respectable senior lawyers who were also members of the monitoring team. It is not my intention to challenge the credibility of these 5 respected senior members of the Bar, but the fact remains that the Bar has, intentionally or otherwise, left out the names of the remaining 75 or so monitors.

What is the rationale behind the Bar’s action to hide the identities of these remaining 75 or so monitors? Is itbecause the Bar Council is fully aware of the fact that at least one of its monitors was playing the role of both a prosecutor and a judge, when the monitor is also a member of Bersih’s steering committee?

At this juncture, before any form of attack is hurled at me, I have no qualms confessing that, despite my known political affiliation, I was part of the Melaka Bar monitoring team that observed the Bersih 3.0 protest in Dataran Pahlawan, Melaka. After I submitted my report, I also informed the person in charge, the Melaka Bar Representative to the Bar Council, Desmond Ho, that some of my observations may have been worded in what some may perceive as a biased manner, and I left it to him to make any necessary amendments before he compiling all the observations for submission to the Bar Council.

Hence, I am of the honest belief that a monitor’s political or social beliefs do, to a certain extent, affect the observations recorded.

This leads me to the second point, where the 8 LoyarBurokkers appear to be undisturbed by the political or social beliefs of the individual monitors. Whilst I wish to thank them for indirectly having that sort of confidence in me that I would have been able to report my observations as they were, I am perplexed by the fact that some of these 8 LoyarBurokkers have just, not too long ago, criticised the appointment of Tun Hanif Omar as the head of the Government-appointed panel which is tasked with investigating the events and allegations surrounding the Bersih 3.0 rally.

For the record, I share similar concerns on Tun Hanif’s appointment as the chairman of the panel, as the panel ought to be free and independent from the interested parties i.e.the Government, the police and the participants. As such, I am of the view that the former Chief Justice of Sabah and Sarawak Tan Sri Steve Shim would have been a better person to lead the so-called independent panel, with the former IGP Tun Hanif Omar assisting the panel by sharing his knowledge from his experience as a former IGP.

In the same vein, I also believe that whilst it may be difficult or impossible for the Bar to form a completely neutral monitoring team, the Bar ought to have at least disclosed identities of the members of the monitoring team who may have vested interests. The Bar ought to be open about it and, I am sure, has nothing to hide. This is particularly so when the Bar must not only be independent, but also be seen as independent.

Moving on, in their article, the 8 LoyarBurokkers have also asked important factual questions — who ordered the closure of the nearby LRT stations so as to prevent the people from dispersing; who ordered the destruction of cameras belonging to journalists; what justified the 4 hours of continued attacks? Ironically, when the 8 LoyarBurokkers claimed that the Bar did not prejudge, they have also admitted in their article that answers to these questions have yet to surface. Yet, without answers to such important factual questions and with the factual matrix in dispute, the Bar had for instance, made the finding that the police had fired tear gas in a manner to box in the protesters rather than to disperse. As a matter of fact, when the tear gas cannisters were fired, were the police fully aware of the fact that access to the nearby LRT stations have been closed, thus preventing people from dispersing since the persons instructing the police and those in charge of the LRT stations are different?

Notwithstanding the fact that we have yet to obtain any answers to such pertinent factual questions, the Bar in its Resolution 1 (c), however, has condemned the police of, amongst others, “trapping… the participants with water cannon and tear gas instead of permitting them to disperse”. If this is not prejudging, then I ought to be guided by the more senior members of the Bar of the meaning of prejudging, hoping to earn some CPD points in the process.

The unruly protesters were less blameworthy?

In their article, the 8 LoyarBurokkers have also argued that there was no need to condemn members of the public who turned violent for, amongst other reasons, “most thinking Malaysians who have access to the alternative media… are not convinced that these so called ‘rioters’ are as blameworthy as the police”.

This is a dangerous notion as it seeks to create a sort of “pecking order” of blameworthiness. Section 42(1)(a) of the Legal Profession Act 1976 impels membersof the Bar to uphold the cause of justice without fear or favour, and the Bar is not to allow its interests or that of its members to affect them in any way.

It then begs the question of how could we speak out only for the wronged protestors, and not for the wronged police officers? We cannot treat the sacrosanct principle of equality before the law as something economical that can be altered to suit a manufactured “pecking order” of culpability. As such, it is my honest belief that all members of the Bar, including the 8 LoyarBurokkers, share my view that a wrong is a wrong regardless of who the culprits are, and the scales of justice cannot be tipped simply because we feel one is less culpable than the other.

Having said that, it is only prudent to come to such a drastic conclusion after a thorough probe has been conducted. At the very least, we ought to let the Courts decide whether or not the alleged offences have been committed, and the amount of damages suffered. In this respect, instead of urging the Government to pay “just and proper compensation” to the victims, as was stated in Resolution 7, the Bar ought to have urged the victims to come forward and assist them to go through the due process of law to obtain compensation.

Notwithstanding the above, the Bar’s carefully-worded resolutions also omitted the fact that the Bersih protests were conducted in 11 cities in Malaysia, whereby no untoward incident was reported except in Kuala Lumpur. Given that the respective state Bars have also sent their respective monitoring teams to observe the various protests around the country, it begs the question why weren’t the reports from the monitoring teams in the other states tabled to aid members in developing a more complete view of the events that took place in Kuala Lumpur and 10 other cities on 28 April 2012?

Further, in the unholy haste to compile the final report, the Bar has neglected to at least mention an incident in Melaka where a DAP state assemblyman breached the barricade in Dataran Pahlawan, Melaka. Hence, it is only natural for some to question the impartiality of the Bar, because we have been perceived as selective in our use of facts and in our condemnation; contravening long-cherished legal principles. While I accept this may have been inadvertent given the hurried manner in which the report was compiled, it is not too late to correct this.

Also, I wish to raise a procedural matter with regards to the EGM, where we were compelled to vote for the resolutions en-bloc rather than opening each of the 12 resolutions to be voted on individually, allowing us to vote in favour of the neutral ones and voting against the ones some of us found to be contentious and lop-sided.

I do hope that in future, the Bar will allow a greater degree of flexibility in such matters, in line with the democratic values we rightly demand others to respect and uphold. This, I believe, is what the so-called detractors of the Bar want and will, in the long run, make the Bar a better partner in the administration of justice in this country.

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Eric Choo is a young lawyer practising in Melaka and the current Legal Bureau Chief of MCA Jasin, Melaka. He tweets at @choows and describes himself as an idealist who wish to see his country progress as one without being divided by ethnicity, race or religion. He believes and hopes that such change can come from MCA. He encourages young men and women who thinks alike to come on board to this journey of political transformation, regardless of your political inclination.

Posted on 23 May 2012. You can follow any responses to this entry through the RSS 2.0.

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15 Responses to Another Response to the 8 LoyarBurokkers

  1. Ghaflennon

    We came out to march on the streets in demand for clean and fair election . We had our yellow color T-shirts on for the cause of our fullest and pivotal meaning . It was our constitutional rights to assemble and to freedom of speech to stand a show of our grievances with the Election Commission . Our constitutional rights to assemble was granted . Indeed , we carried neither batons nor stones . For that matter , we had our families along to celebrate our rights in knowing it was a peaceful-democratic event , and we assumed we were all enlightened and civilized Malaysian .

    We want to tell the world that Malaysia is a democratic country and Malaysia is no near to an utopian democracy . We want the world to know that we are in agreement for now with the changes in our electorate procedures in which are cleaner and fairer . Seven out of the eight demands have been made and we are satisfied for now . Yet , we are also telling the Election Commission and the world that there will be another Bersih 4 that would again demonstrate to seek for our further to come electorate demands which have not been met and thus make a place to rest for democracy of Malaysia which are in questionings .

    It is the responsibility of the present Administration and further accountable for entrusting the people of their democratic rights to come the time to vote with peaceful and harmonious minds with good manners . The sitting-down then of Bersih was the mark of a peaceful and harmonious demonstration until , THEY defied the court order by their distressed political leaders . These incendiary leaders had their unconsciousness bias that had deliberately commanded their contracted demonstrators to walk in against of our own interest and the laws .

    It seems exclusive , the political high-jackers were in command . Our peaceful by sitting-down demonstration and with sound messages were politically highjacked . We had been told that it required more  of just being the peaceful demonstrators . They signaled us and commanded their contracted brand of demonstrators to lead and stormed through the barricades . The act was in against the objective of Bersih . We were confused when they summoned us to actively play broader roles over Bersih , to awaken the political-illegal conscience with engenders sense to cross the barricades and to break the law because it was our democratic rights to do so . This  is an affirmed affidavit underlined the broadening of  their new ' code of injunction ' for the Demagogues' consumption . It smells mental anarchy to me   .

    I am neither lawyer nor a constitutional one . Just a citizen of Malaysia who wants peace and harmony to prevail . It is my constitutional rights . The Bar Council in its own rights must address this issue in the making of the report . As I have had smelled mental anarchy in the procession to demonstrate by political leadership , the Bar Council was not spare either . As someone remarks , " Bar Council's democratic pretension " in which I think as pretension as such . More to that , it has detached and disengaged itself from being of an accountable body for upholding ' fair justice ' . The faculty of learned mind was in containment

    • i m a cook

      They who signal you with two fingers are charged in court ,are they found guilty yet? How pretentious of you ?

  2. Loh Siew Cheang

    All these discussions are academic. Opposing views could and should have taken place at the EGM. I was not there in person, but I understand that Mr Choo and Mr Tan were present to ventilate their views – which failed to persuade the House.

    For all intents and purposes, for detractors of the Bar, the avenue is open, for you to get an EGM going to either declare the previous EGM's resolutions null and void, or to propose your own motion.

    As far as I am concerned, this avenue has yet to be exhausted.

  3. andrewteh

    What are you saying, Mr Choo? That because you admittedly produced a skewed report on the rally in Melaka due to your political affiliation therefore all 80 Bar Council monitors are liable to do the same? That's a gem of an argument..!

    I despair for the profession if all lawyers are associated with the level of intellect you have shown in that argument of yours.

  4. andrewteh

    What are you saying, Mr Choo? That because you admittedly produced a skewed report on the rally in Melaka due to your political affiliation therefore all 80 Bar Council monitors are liable to do the same? That's a gem of an argument..!

    I despair for the profession if all lawyers are associated with the level of intellect you have shown in that argument of yours.

    • puppeteer

      who are you to say the report is skewed? were you there? yeah, i do despair if YOU are a lawyer :-D

      • May Chee Chook Ying

        I was in Malacca's version of "Duduk Bantah". Were you there, puppeteer? Are we seeing the side of you that's honest? I doubt "honesty" and "puppeteering" can go together. You may be a puppeteer but we are no PUPPETS! Not singing to your tune, my friend. Anyway, God bless and have a good day.

  5. Lisa Ng

    Hmm, theoretically, political affiliations should have no bearing on the duty of lawyers to serve the objective of being on the monitoring panel during Bersih, i.e ensure justice (beyond laws) is upheld. I feel – even as a non-lawyer – it's a different case entirely in the situation regarding Tun Hanif's appointment to the panel. Firstly, he isn't a law expert. He's a high-ranking police officer serving on a panel whose objective is to investigate violence (which as it now stands seems to have been mainly) perpetrated by the very institution he once led. Do you not think there is a clear case of conflict of interest here?

    I also don't think that protesters are less blameworthy than the police. Anyone who breaks the law and instigates violence is wrong, yes. But the protesters and police are NOT on the same standing. There needn't be anything said about the protesters because it is a given – the ones who rioted are wrong and they should be charged accordingly. Police violence is more worrying because in the first place, their duty is to catch those who are breaking the law without losing their head. Not fight back. Their duty is to keep order both by preventing disorder as much as possible and containing it when and if it does occur. They cannot be equated with the common member of the rakyat or else, we would be excusing trigger-happy policemen who fire at criminals for hurting their partners during a raid gone wrong.

    I'm not familiar with the procedures of the EGM and what transpired but it IS good practice to vote on individual resolutions rather than voting resolutions en-bloc in any case. You get a clearer picture of just how large (or small) the silent majority is when you opt for this. Also, you've raised reasonable points regarding the absence of the summaries from the monitoring panels in the other cities where Bersih was held.

    Your post provides insights (at least for me) on why some members may feel that the Bar comes across as being "impartial" even if it may not have set out to be so. And your manner of conveying the issues you have is commendable. It's more credible than dramatics and hyperbole that pander to sensationalist journalism.

    • Eric Choo

      Thank you for your kind comments and I find it necessary to reply to some of the points that you have raised.

      1) You are right that, theoretically, political affiliations should have no bearing on the duty of the lawyers to serve the objective of the monitoring team. However, the test to the Bar now is to be seen to be independent. I am not saying that the Bar isn't independent, but it must be seen as such. Hence, the Bar ought to be open about the identities of the monitors and show that they have nothing to hide. Without which, it is bound to attract suspicions and thus criticisms, which is what is happening now.

      2) On Tun Hanif's appointment, what needs to be emphasised is that the panel is a fact finding panel. Hence, there is no need for him to be a legal expert. Rather, as I have suggested, he should assist the panel with his knowledge from his experience as a former IGP. For instance, he would be able to assist the panel on what should have been the proper guidelines followed by the police and whether or not the police have done so. Yes, there is conflict, which is why he must not chair the panel. To me, there is a stark difference between chairing the panel and assisting the panel. And in my humble opinion, the panel ought to be headed by an independent person like the former CJ of Sabah & Sarawak, Tan Sri Steve Shim.

      3) To compare Tun Hanif's role in the fact finding panel and that of the observers in the monitoring team may not be comparing apple and apple. The latter is supposed to state the facts as they saw them, rather than to find facts. I concede that. But, as I have demonstrated in my own role, the strength of the words used, the emphasis to the incidents happened may differ given someone's affiliations and/ or beliefs. Some may say that just because I am like that, it doesn't means the rest will do the same. Sure. But to this, we have to return to the very threshold that the Bar must be seen to be independent. Hence, in addition to identifying the monitors, we need to know (1) if the final report was based on all the observation reports by all the monitors (which to my understanding, and I stand to be corrected on this, some observation reports were only submitted in the morning of the EGM) and (2) who are the independent, respected members of the Bar who have been appointed to vet through all the observation reports before compiling them into the final report as it is. This, I believe, should suffice to show how far the Bar is willing to go to be independent and to be seen as such. Likewise, this should also be practised by the very same panel of which Tun Hanif is appointed to chair.

      (4) On your point that there is no need to say anything about the unruly behaved protesters as it is a given (I have added in the words "unruly behaved" because majority of the protesters/ participants were very well behaved), my view is that when we are silent about it, we will be seen to as condoning those acts. In any event, condemning the unruly behaved protesters in the manner which we condemned police brutality will not do any harm to the Bar or its image, will it? The failure, however, has provided ammunition for critics to shoot the Bar where the Bar must be seen to be acting independently, without fear or favour. More so, given that rallies/ protests are now a norm, we ought to send a strong message out that we despise all forms of violence and injustice.

  6. Lisa Ng

    Hmm, theoretically, political affiliations should have no bearing on the duty of lawyers to serve the objective of being on the monitoring panel during Bersih, i.e ensure justice (beyond laws) is upheld. I feel – even as a non-lawyer – it's a different case entirely in the situation regarding Tun Hanif's appointment to the panel. Firstly, he isn't a law expert. He's a high-ranking police officer serving on a panel whose objective is to investigate violence (which as it now stands seems to have been mainly) perpetrated by the very institution he once led. Do you not think there is a clear case of conflict of interest here?

    I also don't think that protesters are less blameworthy than the police. Anyone who breaks the law and instigates violence is wrong, yes. But the protesters and police are NOT on the same standing. There needn't be anything said about the protesters because it is a given – the ones who rioted are wrong and they should be charged accordingly. Police violence is more worrying because in the first place, their duty is to catch those who are breaking the law without losing their head. Not fight back. Their duty is to keep order both by preventing disorder as much as possible and containing it when and if it does occur. They cannot be equated with the common member of the rakyat or else, we would be excusing trigger-happy policemen who fire at criminals for hurting their partners during a raid gone wrong.

    I'm not familiar with the procedures of the EGM and what transpired but it IS good practice to vote on individual resolutions rather than voting resolutions en-bloc in any case. You get a clearer picture of just how large (or small) the silent majority is when you opt for this. Also, you've raised reasonable points regarding the absence of the summaries from the monitoring panels in the other cities where Bersih was held.

    Your post provides insights (at least for me) on why some members may feel that the Bar comes across as being "impartial" even if it may not have set out to be so. And your manner of conveying the issues you have is commendable. It's more credible than dramatics and hyperbole that pander to sensationalist journalism.

    • siewchin

      Lisa – your manner of conveying the issues is just as commendable ! It is not easy to put aside our emotions and just deal with the issues, especially for a lady :-))) or should i say you comment as such because you are a lady – no foul-mouthing, no hysterical accusations, no chest-thumping…. lol.

      • Lisa Ng

        Heh heh. No, nothing to do with gender I reckon. Regardless of whether we disagree or agree with the views presented, I think Mr Choo writes respectfully. I also tread with an open mind because I'm not a lawyer, was therefore no where near the EGM, but am curious about the whole premise of perception versus reality. As a layperson also, I would be damn terrified if a policeman arbitrarily decided I should be whacked on the head and kicked around a few times because "It's okay, the government says it's okay to have feelings and lose my head a bit". A wrong is a wrong. And a wrong is more serious if you're working for the law. It's on Law and Order! :D

  7. May Chee Chook Ying

    There is a higher court than the court of justice and that is the Court of Conscience, something I'm sure that's alien to the likes of you. A thousand probabilities do not make one truth and the truth is protestors were hunted down and brutalized for a good two hours before they hit back in self-defence. My lil friend, I worry for you. You not only have to be a "good" lawyer, you have to be an "honest" one. One, with a well-formed conscience. Go, embrace some good virtues before you end up on the dark side of life. I mean you well, spinning does you no good. God bless.

    • puppeteer

      "…hunted down and brutalised for 2 hours.." errrr how's that again? don't glorify lah, just tell it as it is, that is part and parcel of honesty, no?

      • May Chee Chook Ying

        Part and parcel of honesty is telling it as it is, with all the documented evidence including videos. Have you been to Bersih rallies before? Do you think those who feared for their lives were glorifying themselves? With a name like "puppeteer", you trying to advocate honesty? Why, hide behind a mask? Come on, be honest, show your your true self!