March 21, 2016
The Bar Council does not do politics
By Gerard Lourdesamy
I was amused to read the comments made by two prominent lawyers who represent UMNO and the Prime Minister Mohd Najib Razak and another lawyer who is a DAP state assemblyman in Penang about the censure motion against the Attorney-General (A-G) Mohamed Apandi Ali proposed by three members of the Bar and the judicial review application filed by the Bar Council in relation to the A-G’s failure to exercise his prosecutorial powers against the Prime Minister for alleged corruption.
The Attorney-General is not Above or Below the Law
While they are perfectly entitled to express their views in support of the AG or otherwise, they displayed a certain degree of ignorance about the constitutional position of the AG, the role of public interest litigation by way of judicial review and the role of the Bar Council.
My response to them is :
(a) The censure motion did not originate from the Bar Council but from three members of the Bar;
(b) Unlike political parties like UMNO and the DAP, the Bar Council cannot prevent a motion from being tabled and debated at the Annual General Meeting (AGM) of the Malaysian Bar so long as the requisite notice is given to the Bar Council Secretariat and the motion has a proposer and two seconders. This even applies to motions that are critical of the Bar Council or their leadership;
(c) The censure motion in its purport and effect had nothing to do with the judicial review application filed by the Bar Council against the A-G in respect of his decision not to charge the Prime Minister for alleged offences in relation to the RM2.6 billion “political donation” and the RM42 million from SRC International that mysteriously ended up in his personal bank accounts;
(d) The appointment of the A-G is done by the Yang di-Pertuan Agong under Article 145 (1) of the Federal Constitution on the advice of the Prime Minister;
(e) The Agong is bound to act on such advice as provided for in Article 40 (1) and (1A) of the Constitution;
(f) The appointment of the A-G is not one of the prerogative powers of the Agong, see Article 40 (2) of the Constitution;
(g) If every exercise of power by the Agong under the Constitution is deemed to be part of his prerogative powers, for example the Royal Address that is read at the state opening of Parliament, then we would like Brunei, be an absolute monarchy as opposed to a constitutional one;
(h) The locus standi test for judicial review in the context of public interest litigation has been widened by the Federal Court in the case of Malaysian Trades Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor where the Court held that in order to pass the “adversely affected” test for judicial review, an applicant has to at least show that he has a real and genuine interest in the subject matter. The Court added that it is not necessary for the applicant to establish infringement of a private right or the suffering of special damage;
(i) Therefore, it would be erroneous to argue that the Bar Council’s judicial review application against the A-G is bound to fail by reason of Article 145 (3) of the Constitution. In fact there are obiter statements of the Privy Council and the Federal Court itself that suggests that in certain exceptional circumstances such a review may be possible;
(j) The sub judice rule is only applicable in criminal and civil cases where there is trial by jury. Otherwise it is obsolete. A single judge having to decide a case based on the law and evidence before him should be astute enough not to be influenced by external and extraneous factors and circumstances;
(k) In any event the application of the sub judice rule to questions asked in Parliament is for the Speaker to decide and not for ministers to pre-empt;
(l) It is unfortunate that lawyers who are themselves politically active either openly or in private should accuse the Bar Council of acting like an opposition party. This accusation is akin to saying that all lawyers who are active in UMNO or the DAP couldn’t care less about the Rule of Law and the interests of Justice;
(m) The Bar Council is only concerned about the Rule of Law and the imperative to do justice without fear or favour. It is a statutory duty imposed on the Bar Council by the Legal Profession Act. The Council is not bothered about lucrative legal fees from the government or government linked entities or a plethora of titles and honorifics or a slew of benefits that accrue to lawyers who very wisely represent and advise some of our politicians;
(n) If our government and its leaders have a tendency to only pay lip service to the Rule of Law, fundamental freedoms and human rights the Bar Council cannot be expected to keep quiet and vainly hope that these issues will be addressed by the government at some later date. I think close to 60 years since Independence is long enough for the government to act wisely and responsibly; and
(o) The A-G honestly knows how and when to defend himself. There is no need for lawyers in private practice who are well connected to the Establishment to comment as if they have been briefed by the A-G to represent him and by extension defend the government from the Bar Council.
Whatever the motives, self-regard and pomposity are not appealing traits in any lawyer, myself included.
Gerard Lourdesamy has been a practicing lawyer for the last 23 years.