Keeping the Judiciary Out From Being Scandalised or Politicised — Faidhur Rahman Abdul Hadi

The chorus to the 2007 hit single by Monkey Majik featuring the Yoshida Brothers goes “I need a change… ‘Cause it’s all gone wrong for me’… (I need) somebody else to lead me now.” The sentiment conveyed by the single reflects exactly the thinking of the more than 100 practising lawyers of the Malaysian Bar who come from diverse parts of the Malaysian peninsula and from different walks of life who have one thing in common: Outrage and utter disgust with our President, Mr Christopher Leong, for his February 11, 2015 Press Release implying that Datuk Seri Anwar Ibrahim was “persecuted, not prosecuted” by the Malaysian judiciary, a fundamental element in the administration of justice in Malaysia established by non-other than Article 121 of our Constitution, a document which binds not only members of the legal profession, but all the citizens of this nation to which we belong.

Not since 1988, a dark year in the history of the administration of justice in Malaysia, when His Lordship Tun Salleh Abbas was removed as Lord President, has an attack on our judiciary been so severe. But this time round, in 2015, the attack on our courts comes not from the highest echelons of the executive, but by the President of the Malaysian Bar himself. By virtue of his office, he has implicated the entire legal profession in his dastardly attempt to discredit our judicial system. A significant number, if not the vast majority, of members of the Bar are rightly livid with his actions, and it is for this reason that an initial number of 100 have decided to lend their names to a humble statement sounding out his false and misleading remarks and demanding a retraction thereof. False as they are plainly wrong, both in fact and in law, and misleading as they would most certainly lead to unsuspecting members of the public to conclude that our judiciary acts in collusion with the executive branch of our nation to persecute Anwar, an individual who has been tried and found guilty of sodomy according to law.

Christopher Leong’s misdeeds in relation to the said press release are great in number as well as grave in their severity. His said press release, as so eloquently summarised by fellow member of the Bar, Mr Gerard Lourdesamy in his article, “The Bar Council has an onerous obligation and duty”, … amounted to a serious contempt of court that brought the administration of justice and the court into public odium and disrepute; militated against the fundamental and statutory duties of the Bar; was a misinterpretation of the facts and the law; it did not represent the views of a majority of members of the Bar; it was unfair and unsubstantiated given that the Bar Council president admitted to not having read the judgment of the Federal Court prior to issuing his statement; and that it was akin to a trial of the judiciary by the media, which the legal profession abhors.”

With respect to Mr Gerard however, his conclusion is not correct when he avers that the independence and integrity of our Bar is still intact. Make no mistake, it is because our President has compromised, very seriously, the independence and integrity of the Bar that the group of 100 lawyers and growing were forced to act and issue their statement in the first place.

In a previous article, “Playing fast and loose with the Federal Constitution” I had warned that certain irresponsible quarters in Malaysian society, one among them the Bar Council, were playing with fire by, among others, being complicit in the procuring of the removal of preventive detention laws responsible for the general well-being of our nation all this while such as the Internal Security Act 1960, agitating for the removal of laws protecting our Constitution such as the Sedition Act 1948, and now, besmirching the good name of the third branch of government by attacking its credibility amongst the Malaysian citizenry, chiefly by giving credence to media reports disputing the trial and conviction of Anwar for sodomy and wondering aloud, preposterously and absurdly, why the complainant, Mohd Saiful Bukhari Azlan, who is a victim of the crime in question, was not charged with abetment pursuant to Sections 377B and 377A of the Penal Code, read with Section 109 of the Code.

Certain individuals writing in support of the President, such as “An Observer — Why Christopher Leong is right”, in a feeble attempt at defending the President’s actions, point to Anwar’s previous overturned conviction for sodomy in 2004, never mind the fact that statement issued by the 100 lawyers is not concerned whatsoever with Anwar’s previous sodomy case or even his current case but everything to do with the Bar President’s scandalisation of the judiciary in the name of the Malaysian Bar.

Great judges of the past, as well as present, have cautioned very strongly against any attempt to politicise the judicial system. The dicta of His Lordship Wilmot CJ is one notable example and was quoted with approval in the English case of Rex v Davies (1906) 1 KB 32 where he states that attacks upon judges “excite the minds of the people a general dissatisfaction with all judicial determinations and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and dangerous obstruction of justice, and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals, but because they are the channels by which justice is conveyed to the people” Channels that indeed have been irrevocably and possibly even irreparably damaged due to the actions by Christopher Leong.

Another judge of yore, Wills J stated in his grounds in R v Parke (1903) 2 KB 432 that statements of the like made by Christopher Leong should be treated as contempt of court as “… their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists — namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try that case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned.”

It is notable that when the 100 practising lawyers made their demands, one of the first individuals that came to Christopher Leong’s defence was Eric Paulsen of Lawyers for Liberty, a man notorious for his own infamous statements that undermine the position of Islam as the religion of the Malaysian state, one of them falsely accusing JAKIM of promoting extremism in the preparation of Friday sermons, a claim that he is facing a charge under the Sedition Act for.  His defence for our President vainly pleads paragraph 42(1)(a) of the Legal Profession Act 1976, where members of the Bar are supposed to uphold the cause of justice without fear or favour. By saying this, Eric insults the intelligence of his fellow members of the Bar. Obviously no favouritism means the Bar should not display partiality towards the ruling party of the day, but neither does it mean a preference for the federal opposition, in particular their leader, Anwar either, a fact lost on the supporters of our President. To dispel the myth that Bar Council actions all this while amount to upholding justice without favour, one need only note the silence of our President when retired Federal Court judge Gopal Sri Ram appeared as lead counsel for Anwar in our nation’s apex court in 2014, in spite of a resolution passed earlier that year by the Bar against retired judges appearing as counsel. Only when the Bar Council was condemned for this silence, did Mr Christopher Leong respond. Without favour? No way Jose.

Yesterday, defenders of the indefensible have decided to recast our President’s February 11th Press Release as a mere question of the discretion of the Attorney-General to prosecute Datuk Seri Anwar Ibrahim’s case and not as an attack on our judiciary. Bar Council member Andrew Khoo and former President of our Bar, Lim Chee Wee echoed by the likes of Low Teck Kuan claim that the 100 lawyers have failed to read the President’s Press Release carefully and that were the said press release properly scrutinised, it would surely have referred to criticism on the part of the prosecutorial discretion to charge Anwar, in spite of the clear wording to the effect in the third paragraph of the statement that “… the decision of the Federal Court has come as a surprise to many.” Why a surprise? It does not take a rocket scientist to deduce the fine print here.

Suffice to say that the statement made by the President of our Malaysian Bar as not only brought our judiciary into disrepute but also tarnishes the standing of the legal profession as a whole, as it has been made in its name. The signs are loud and clear. Something is very wrong with our Bar. I, for one, as a duty bound officer of the court, will not be a part of the travesty my President has created, and neither will a great number of other lawyers. Like the chorus to the single quoted above, I, too, need change and someone else to lead me now. To this end, it is high time legal practitioners from all over the country (myself included) including you, dear reader, if you are a fellow member of the Bar, demand from our President and other Bar Council members not only a retraction and unreserved apology for attacking our judiciary, but also true change — a fundamental reform of the way issues are handled at the Bar. Ask for no less than true accountability and transparency during the conduct of elections to the Bar Council and demand neutrality in future press releases that are made in your name. Only then will the Bar Council, and the Malaysian Bar by extension, truly go back to being the professional body it once was — one that truly upheld the cause of justice without fear or favour. And only then will its members go back to carrying on their legal and professional trade without hesitation nor worry.

*First appeared in The Malay Mail Online, 23 February 2015.

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