Bar Council Should Uphold Dignity of the Profession, and not Condone Arrogant and Obnoxious Behaviour

Press Statement by Concerned Lawyers for Justice

30th June 2017

The Concerned Lawyers for Justice (CLJ) reads in disbelief the defensive statement issued by George Varughese, Chairman of the Bar Council, dated 29th of June 2017, in relation to a member of the Bar Council, Siti Zabedah Kasim (“Siti Kasim”), who is being charged under section 186 of the Penal Code, for having obstructed an officer of the Federal Territories Islamic Affairs Department (Jabatan Agama Islam Wilayah Persekutuan, “Jawi”) from carrying out her duties during a raid on an event at the Renaissance Kuala Lumpur Hotel on the 3rd of April 2016. [1]

While CLJ agrees in principle with the Bar Council that “[t]he independence of an advocate and solicitor to act for a client without fear or favour is fundamental to the administration of justice;” [2] this must however not be abused to the extent of putting lawyers above the reach of the law.  Instead, an advocate and solicitor is duty bound, even in representing clients and carrying out duties in defence of a suspected offender, to uphold the law and dignity of the profession at all times, to conduct with candour, courtesy and fairness, and to refrain from insulting or annoying attitudes, as laid down by the Legal Profession (Practice and Etiquette) Rules 1978, as well as embodied in Principle 12 of the United Nations Basic Principles on the Role of Lawyers (“UNBCRL”).

The fracas that occurred between Siti Kasim and the Jawi officers during the raid was partially recorded in video, and could be accessed on public domains, including Youtube and Facebook. [3] Upon having watched the short 3:04 minute video,[4]  we are shocked and concerned at the brutal intimidation and ruthless harassment thrown at the Jawi officers who were merely carrying out their duties in accordance with the law.

While the video may not be conclusive, at the very least we believe it provides a compelling evidence showing that the charge proffered against Siti Kasim was indeed fair, and must be allowed to be litigated in full in the Court of law. It is improper for the Chairman of the Bar Council to hinder or condemn due process from being carried out, especially when the person charged is currently a member of the Bar Council, for it would open the door for speculation as to whether the Bar Council is actually being biased in its stance, and not to mention it would also be against the principle of equality before the law. [5]

To put the record straight — the raid by Jawi at the function was made pursuant to a purported offence under section 9 of the Syariah Criminal Offences (Federal Territories) Act 1997 (“SCOA”), namely for contempt or defiance of the command of the Yang di-Pertuan Agong as the Head of the religion of Islam, the Majlis or the Mufti, expressed or given by way of fatwa, that if found guilty is punishable to a fine not exceeding three thousand ringgit or two years imprisonment or both. This, therefore, falls squarely within the category of “seizable offence” defined under section 2 of the Syariah Criminal Procedure (Federal Territories) Act 1997 (for brevity, “SCP”), allowing for arrests to be made without warrant.

Section 18 of the SCP reads as follows:

“[A]ny Religious Enforcement Officer … or Pegawai Masjid … may, without an order from a Judge and without a warrant, arrest any person who has been concerned in any seizable offence in the Federal Territories or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been so concerned.”

The fact that the function was a closed-door event does not preclude the Religious Enforcement Officer from the authority to enter into the premises in which the offence is suspected to have been committed. In fact, section 11 of the SCP clearly spells the duty of the person in charge of the premises to allow free ingress to the Religious Enforcement Officer, and to afford reasonable facilities so as to allow the raid to take effect.

Any attempt to obstruct the enforcement officers from carrying out their duties as expressly provided by the law, must therefore not be condoned, even when such obstruction is carried out by a lawyer or a member of the Bar Council. In fact, Siti Kasim’s failure to advise her clients of their obligation under the law to allow free ingress to Jawi, and to ferociously and repeatedly shout and demand for a search warrant when the law clearly states otherwise, is in clear contravention  of Principle 13(a) of the UNBCRL, which provides that the duties of lawyers towards their clients shall include “advising clients to their …. obligations … and as to the working of the legal system in so far as it is relevant to the … obligations of the clients.”

We urge the Bar Council to uphold the rule of law; to reaffirm the sanctity and supremacy of the Federal Constitution; to subscribe to the principle of courtesy and morality as declared in the Rukun Negara; and to reaffirm the commitment to allow the necessary enforcement functionaries to carry out their duties without intimidations and harassments.

 

Fatihah Jamhari

Secretary-General

Concerned Lawyers for Justice

30th June 2017

[1] http://www.malaysianbar.org.my/press_statements/press_release_%7C_let_lawyers_discharge_their_professional_duties_without_hindrance.html

[2] ibid

[3] https://www.youtube.com/watch?v=mSzaoP_At-k

[4] ibid

[5] Article 8 of the Federal Constitution

*Featured image taken from People Insider.

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