On the role of the Bar, let’s go back to basics – Low Joo Hean

The recent debate in social media and public forums regarding the press release of February 11, 2015 made by the president of the Malaysian Bar in response to the recent Federal Court decision to turn down Datuk Seri Anwar Ibrahim’s appeal rekindled the nostalgic feelings that used to endear the public towards the Bar in its defence of the judiciary. This was when the latter was under siege in the 1980s at the height of the confrontation between the judiciary and the executive. This confrontation arose from the removal of the judges of our nation’s apex court at the time, though this time, ironically, the culprit that was accused of being an affront on the sacrosanct judiciary was the then-celebrated hero who used to be hailed as the rampart of the rule of law at the height of the confrontation.

A lot has been marvellously written on the legal aspects, both on the alleged inappropriateness of the Bar to drag itself into the quagmire of meddling into judicial affairs and the legal aspects of the charges proffered against the accused and the adverse aspersions cast on the absence of an abetment charge against Mohd Saiful Bukhari Azlan, the apparent victim in the case. I do not wish to venture into all and sundry of the said debates or even the nitty gritty of the said debates. I wish, however, to take a step back and “go back to the basics”, so to speak.

It is axiomatic that the Bar is an important embodiment of participation in the common desire to uphold the rule of law and to act as a guardian of that beacon, an ideal all members of the Bar hold only too dear. Having an important role in that regard, it is not testing the mind to assert that the Bar must concern itself with upholding the twin rules, namely the rule against bias (known among our legal circles as the Latin maxim, nemo judex in cause sua) and the right to a fair hearing (audi alteram partem) as regards various agencies entrusted with the role of administering justice including the judiciary.

But the council, as guardian of aforesaid ideals, should itself demonstrate its readiness to not only preach natural justice but also be seen as acting appropriately within the confines of such fundamental principles. It is all too irksome to continuously remind ourselves of the rule that “justice must not only be done but must also be seen to be done”.
That statement is already becoming a cliché coming constantly not only from the law academicians but also from the Malaysian Bar. However, at times, the Bar itself, in a stupendous irony, does not seem to abide by this very coveted principle it itself is so fond of reminding others to adhere to.

The recent outburst by the Bar president is a fine example of such humongous irony. In the same breath, the president admitted to not having read the judgment of the Federal Court yet saw fit to announce the death knell of the administration of justice in Malaysia mainly by reference to the perceived unsavoury role of the Federal Court in persecuting, not prosecuting, Anwar.

One may argue that being the Bar president, Christopher Leong, might have been guided by the principle to uphold the cause of uphold the cause of justice without fear or favour as embodied by paragraph 42(1)(a) of the Legal Profession Act 1976 and that Anwar, being the perceived victim in the scheme of things by the president, ought to be aided by his firing of an immediate salvo in support thus demonstrating his readiness to appear without fear in speaking up against the so-called mistreatment of Anwar.

Still, this begs answers to three questions. Firstly, whether the Bar president has done so without favour, a favour which might be politically tinged if one is to look at the past record of the Bar in this regard, in particular its about turn in the treatment of its recent resolution against ex-judges appearing as counsel. Second, whether the Bar had done justice to the judiciary without even affording the judiciary a right to “be heard” by first reading its grounds of judgment. Lastly, whether the right of the victim, Saiful, and his right to justice merited similar consideration by the Bar given the alleged Machiavellian machination involving him with unproven conspiracy claims as claimed by the defence during the trial.

One must remember that when the Bar president made the press release, he was not making exchanges at the grapevine or casual outbursts at the local kopitiam. He was making a deliberated upon articulation on the stand of the Malaysian Bar as regards the judicial verdict on Anwar. An articulation which, no doubt, the public would take as a credible reference of if not an authoritative opinion on the legal aspects of the verdict.

For him to announce to the public that he had not read the judgment but saw fit to imply that our apex court had a role in a complex cobweb of an alleged wicked scheme against Anwar in the same articulation would unquestionably fall afoul of the rule against bias if not scandalising the Federal Court with scurrilous attacks of grievous proportion.

Is it the Bar Council chairman’s stance that our judiciary does not merit the protection of natural justice when it comes to coverage by the media or whether in the court of public opinion? Is there no due process just because judges as well as public opinion is involved? With the advent of modern social media, such subterfuge can spread like wildfire and ricochet in the media with the effect of undermining the judiciary easily causing a groundswell of protests. Viewed in this light, it is not an overstatement to say that whatever the Bar president says can result in colossal consequences in the public domain.

While our president maintains an adamant stand against an apology for the press release, and has petulantly thrown down the gauntlet by demanding the said matter be discussed at the forthcoming Annual General Meeting of our Bar, some have deemed fit to even defend him by resorting to creative interpretation of his statement by claiming that it was intended only to excoriate the attorney-general rather than our Federal Court judges. This after the proverbial horse has bolted and overlooking the fact that even statistics concerning the number of cases involving the discussed legal provisions was readily available. Also conveniently forgotten in respect of Leong’s statement is the unwarranted nitpicking of the attorney-general’s prosecutorial discretion against the accused which lent credence to the public’s perception, albeit wrongly, of the attorney-general’s cahoot with the devil in persecuting the accused without proof. Does this not appear to be an attempt to salvage a loose cannon?

That being said, it is also interesting to note the treatment of the Bar president vis-à-vis the complainant, Saiful. The Bar has always been at the forefront in its clarion calls to protect rape, harassment or molest victims.

Also of note is the Bar’s championing employment harassment laws and critical stance against those who attribute blame on victims who scantily dress. However, in Saiful’s case the president would seem more interested to attribute blameworthy conduct on the part of the victim and instead of issuing a statement in support of his right to be free from a grotesque ordeal, he opted to buck the progressive trend of our Bar and accuse a victim of abetment in a sexual crime and in doing this, he was held sway by his own political beliefs maybe, but being impartial certainly not, however tenuous it might be.

Is it not against the grain to accord Anwar with all benefits of doubt by demanding the prosecution prove beyond reasonable doubt yet view Saiful’s account of the event with tainted perspectives although the burden of proof of conspiracy to defraud in even civil cases requires proof beyond reasonable doubt?

Such an odd interpretation of the law by our Bar president sets a dangerous precedent that may discourage victims of employment harassment or even rape or sexual indecency cases from reporting such ordeals for fear of repercussions arising from their prosecution as accomplices or abettors which hinder the cause of sexual victims against unsolicited advances or brutal sexual assaults.

On the aforesaid premises, I humbly call upon our Bar president to retract the said press release as I am mindful of the fact that this is not an issue that can be simply resolved by a majority decision of the Bar. Third parties such as our judiciary bear the brunt of the implication and deserves immediate exoneration and the public also deserve to be told the well informed and truthful legal position of this sordid affair. – February 25, 2015.

* Low Joo Hean is a lawyer and one of the 100 members of the Bar who have signed a press statement calling for the retraction of Christopher Leong’s press release of February 11, 2015.

* First appeared in The Malaysian Insider, 25 February 2015.

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