May 20, 2012
Unswayed by Fear or Favour
by Roger Tan@http://www.thestar.com.my
As much as we do not like the Judiciary to be perceived as pro-government, we also do not want the Bar to be perceived as pro-Opposition.
ON May 11, the Malaysian Bar passed a motion containing 12 resolutions related to the April 28 BERSIH 3.0 public assembly by an overwhelming majority. The decision of the House with 939 votes in favour and 16 against is to be respected. The argument that it is not representative of the 14,000-member Bar has no basis whatsoever as Section 66 of the Legal Profession Act, 1976 (LPA) is clear, that is, a motion is carried if a majority votes in favour of it.
With that above overriding principle in mind, let me, however, put on record the reasons, whether rightly or wrongly, why I could not support the motion.
First and foremost, it must be acknowledged that Resolution (12) was amended to include, inter alia, that (1) the Bar is concerned by and does not countenance any acts of violence in a public rally and that such action by participants is not an appropriate response to the Police; and (2) the Bar is equally concerned by reports that certain persons had crossed through the Police barriers to Dataran Merdeka.
But this is a complete opposite of the language used to condemn Police brutality and the manner in which the assembly was handled by the Police on that day. I felt that merely expressing concern against the other law breakers is not strong enough.
The Bar, in my view, must be seen in the forefront in upholding the Rule of Law regardless of whether they were Police or protesters who had broken the law. If the Bar wanted to inveigh and condemn police brutality, the Bar must also do likewise against actions of those protesters who had behaved more like rioters and anarchists in assaulting policemen and jumping on and damaging Police vehicles.
Secondly, I did not want the Bar to prejudge the issues. The way Resolution (1) was worded, it appears that the Bar had already come to a conclusion that all those acts listed therein had been committed by the police. On the other hand, Resolution (12) was worded very carefully to state that the breach of Police barriers was based on reports.
As lawyers, we are trained that even if we have witnessed someone shoot another person, it does not mean the former is automatically guilty of murder. There could be other extenuating factors that require further investigation.
It is true that a report had been compiled by 80 monitors from the Bar. However, the final report was only e-mailed to the members the night before and this gives rise to that allegation that it has been tailor-made to support the motion. The identities of the 80 monitors were also not stated.
I, for one, would certainly like to know their political inclinations and read, for example, their postings and views expressed on the social media on BERSIH to satisfy myself that they were independent-minded in their conclusions, uninfluenced by whatever political or social beliefs they may have.
This is imperative because we have been asked to make a conclusion based on our monitors report. If so, it is axiomatic that we can be accused of being both a prosecutor and a judge at the same time simply because three of our members were allegedly assaulted by the Police.
If we have advised others not to react in anger, we too must be seen to be refraining from it as we are supposed to uphold the cause of justice without regard to our own interests or that of our members, uninfluenced by fear or favour. It is for this main reason that I would prefer to await the findings of an independent body such as SUHAKAM before we come to a judgment on this issue. Like many others, I would certainly like to know why some Policemen and protesters had reacted in the way they did after a full independent investigation. Monitoring is not an investigation, but an observation.
I remember four years ago the Bar Council actually postponed the Bars extraordinary general meeting fixed on October 6, 2007, to discuss the infamous V.K. Lingam video clip because we wanted the Royal Commission of Inquiry to complete its task first. We did this notwithstanding that the whole world knew that it was Datuk V.K. Lingam in the video clip albeit the latter said it looked like him and sounded like him but it was not him. Hence, a precedent is there.
Thirdly, I had also proposed in the meeting that Datuk Seri Anwar Ibrahim should also apologise because it was his men who were reportedly the ones who removed the barrier.
To me, removing the barrier was the trigger point. Of course, there is no excuse if the Police had responded disproportionately to the act of infracting the court order not to enter Dataran Merdeka.
However, it is common sense that in any quarrel, whoever first raises his hand against the other is often the most blameworthy. In this case, if the barrier had not been removed, we could have witnessed the largest peaceful public assembly in the history of our nation, and both political divides can claim equal credit for it.
I know what is written above can be painful for some members of the Bar to read. But it is certainly not an attempt to divide the Bar, but to strengthen it. Neither did anyone expect the motion to be defeated because it was proposed by the Bar Council; otherwise the entire Bar Council would have to resign if the motion had not been carried. As the 12 resolutions were packaged into a motion, members were also not able to vote on each resolution individually.
As a former Council member, I am more than concerned if the Bar is not seen to be bi-partisan in upholding the Rule of Law. It is sad if the public is led to think that the Bar is fine with those who break the laws that they think are unjust.
To my mind, with an established parliamentary democracy, whoever tries without full justification to emulate Martin Luther King or Mahatma Gandhi in times and situations different from theirs can best be likened to be practising politics of demagoguery.
Now that Deputy Prime Minister Tan Sri Muhyiddin Yassin has spoken, I would agree with him that the Bar has to eliminate the perception that it is monopolised by the Opposition. This perception that the Bar is against the government has been there for quite some time.
I remember in the Walk for Justice on September 26, 2007, some members had expressed concern that politicians who were not lawyers had been allowed to take part too. Similarly, I threatened to boycott the Dinner for Justice held on April 17, 2008, to honour the six judges implicated in the 1988 judicial crisis because the organisers had initially wanted only Pakatan leaders (to the specific exclusion of leaders of the Barisan Nasional component parties) to be invited to the event.
This was unacceptable to me because the event was jointly organised by the Bar and the Bar must be seen to be apolitical. That is why we even have a Malay keris on the Bar’s logo, apparently drawn by a MARA law student in a logo drawing competition held in the early 1980s, and we have no problem with it.
In fact, the reaction to establish a law academy is not new. In November 1991, the then President of the Muslim Lawyers Association, Zaid Ibrahim, had wanted the Bar Council to dissolve itself or its members quit en masse if it could not accept and respect Tun Hamid Omar as the Lord President. Zaid added that the government should seriously consider establishing an alternative Malaysian Law Academy that could work with the judiciary if the Bar was not able to end its feud with Tun Hamid.
It is hoped that in their moments of anger, both leaders of the Bar and government will be guided by the wise words of former Prime Minister Tun Hussein Onn who described the role of the Bar as follows:
“It is the duty of the legal profession to uphold the cause of justice without fear or favour. To effectively discharge this role, the profession must remain independent and be seen to be so. The Bar has a duty to speak up on matters of public interest affecting citizens rights and comment on proposed legislation affecting such rights. In doing so, the Bar must be constructive and must conduct itself with decorum. The government must appreciate the role of the Bar and be respectful of its comments – even when it differs with the profession’s views.”
It follows that as much as we do not like the Judiciary to be perceived as pro-government, others also would not like it if the Bar is perceived as pro-opposition. As former Lord President Tun Mohamed Suffian said: “The two essentials of the Rule of the Law are the independence of the Bar and the independence of the Judiciary.”
Woe betide the day if an individual or a body of persons is capable of controlling and influencing the head of the Judiciary or the Head of the Bar!
On a positive note, I am confident that the current President of the Bar, Lim Chee Wee, both a close friend and a former colleague, will be mindful of this and take kindly to my above observations made out of my love for the Bar.
Please read the Final Report on BERSIH3.0 by the Malaysian Bar Council Click Here. Mr. Roger Tan should comment on it in his next article. I think Lim Chee Wee and his colleagues at the Bar Council have done a good job in quick time.
The Royal Malaysian Police should examine its contents and decide whether a public apology will be forthcoming. In my humble opinion, the use of overwhelming force against your own citizens who you are sworn to protect is uncalled for and unjustified. What can the Tun Hanif Omar panel do? Refute it or accept its findings as the basis for their work.–Din Merican
Malaysian Bar Council Statement
“The Malaysian Bar views with grave concern, and condemns:
(a) the excessive, indiscriminate and wrongful use of water cannons and tear gas by the Police on participants of the assembly;
(b) the action of the Police in not allowing the crowd sufficient time to disperse in an orderly and safe manner, and instead chasing the participants and attacking them by persistently shooting water cannon and tear gas on them;
(c) the tactics of the Police in trapping and attacking the participants with water cannon and tear gas instead of permitting them to disperse;
(d) the random, widespread and wanton physical assault and brutality by the police on members of the public and media professionals;
(e) the unwarranted arrests of members of the public, media professionals and Members of the Bar, and the physical assault and beating of at least three arrested Members;
(f) the unjustifiable and unlawful confiscation and/or destruction of photographs and video recordings made by members of the public and media professionals, and damage caused to their recording equipment; and
(g) the lack of discipline and professionalism of the Police;
(2) The Malaysian Bar calls for the Police to identify their personnel involved in the misconduct and unlawful acts and surrender all the wrongdoers, in particular those who assaulted members of the public, media professionals and lawyers, for prosecution;
(3) The Malaysian Bar renews our call on the Government to give effect to the recommendation of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police to set up the Independent Police Complaints and Misconduct Commission recommended therein, without further delay;
(4) The Malaysian Bar calls for the Minister of Home Affairs and the Inspector General of Police to issue a public apology for the actions and conduct of the police, including the excessive, indiscriminate and wrongful use of water cannons and tear gas;
(5) The Malaysian Bar calls for the Minister of Home Affairs and the Inspector General of Police to issue a public apology to members of the public, media professionals and lawyers who were assaulted or beaten by the Police;
(6) The Malaysian Bar calls for the setting up of an independent commission to recommend and formulate proper guidelines or operating procedures governing conduct of police in the control and management of public assemblies, and the use of non-lethal and lethal weapons, which would be in accordance with internationally-accepted standards, in particular the Code of Conduct for Law Enforcement Officials (adopted by United Nations General Assembly resolution 34/169 of 17 December 1979) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 1990;
(7) The Malaysian Bar calls on the Government to pay just and proper compensation to members of the public, media professionals and lawyers who were assaulted;
(8) The Malaysian Bar condemns the Police for denying lawyers access to arrested persons and calls upon the police to abide by and give effect to Article 5 of the Federal Constitution and section 28A of the Criminal Procedure Code;
(9) The Bar Council will look into how it can assist those denied their constitutional rights and those who were assaulted to pursue claims against the relevant parties for just and proper compensation;
(10) The Malaysian Bar calls on the Government, in line with the Medellin Declaration, to:
(a) prevent crimes against media professionals, investigate and penalise such crimes, provide witness protection for those testifying about them and ensure that the perpetrators do not go unpunished;
(b) promote awareness and train Malaysian law enforcement agencies to respect and promote the safety of media professionals, and ensure that they are able to work in full security and independence; and
(c) take resolute action for the safety of media professionals and ensure respect for their professional independence;
(11) The Malaysian Bar calls on Dewan Bandaraya Kuala Lumpur to uphold freedom of assembly and the right of all to utilise Dataran Merdeka for public assemblies; and
(12) The Malaysian Bar reaffirms the right of individuals to participate in public assemblies. Such right must however be exercised in a peaceful and responsible manner. The Malaysian Bar reminds organisers of public assemblies of their responsibility to take all reasonable action to ensure a peaceful assembly.”