Acceptance Speech by Steven Thiru, President, Malaysian Bar, at the presentation of the Inaugural Rule of Law Award 2016 by the Union Internationale des Avocats (International Association of Lawyers), in cooperation with LexisNexis, to the Malaysian Bar on 28 October 2016 at the Opening Ceremony of the 60th Annual Congress in Budapest, Hungary
Mr President, Presidents of the Hungarian Bar and Budapest Bar Associations, President of the Congress, Distinguished Guests, Ladies and Gentlemen.
It is a privilege for me to accept this prestigious inaugural Award on behalf of the Malaysian Bar’s almost 17,400 Members and past Members, 30 past Presidents, and past and present Bar Council members.
The Malaysian Bar is humbled by this momentous Award, which recognises our “strong and unfailing commitment to the defence and promotion of human rights and the rule of law.”[1] We wish to thank the Union Internationale des Avocats (International Association of Lawyers, “UIA”) and LexisNexis for this great honour.
The Malaysian Bar is a long–standing member of the UIA and we are proud to share your key ideals which include the promotion of fundamental principles of the legal profession throughout the world, particularly independence and freedom; and the defence of lawyers and other legal professionals. We are indeed delighted to be associated with the UIA.
As an independent Bar for more than 69 years, one of the Malaysian Bar’s main objectives is “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.”[2] This is our Rule of Law mandate, which we have vigilantly guarded and consistently invoked with fortitude.
The late YM Raja Aziz Addruse, a three–time President of the Malaysian Bar, said:
“The Legal Profession’s traditional role has been and still is to uphold and preserve the rule of law and in discharging this central function without fear or favour it has come to be regarded as the sentinel and guardian of the fundamental rights of the individual.”[3]
In upholding and preserving the Rule of Law, the Malaysian Bar has been in the forefront of defending constitutional rights, the independence of the judiciary and ensuring access to justice. In our unwavering commitment and devotion to the Rule of Law, we have:
condemned the existence, and use, of oppressive and unjust laws such as the Internal Security Act 1960, the Sedition Act 1948 and other security laws; advocated for the protection of the independence of the judiciary, particularly during the 1988 judicial crisis, and the video clip scandal in 2007 that exposed interference with our judicial appointment process; promoted and preserved the framework and foundation of our secular democratic constitution that enshrines fundamental liberties and affirms universal principles and norms of human rights; and provided for legal representation to the marginalised and vulnerable in our society, including the aboriginal peoples known as the Orang Asli.
This Award is also a testament and tribute to the sacrifice and selfless efforts of generations of Members of the Malaysian Bar who have contributed to the discharge of our statutory duties and functions, in the best traditions of the Bar. This Award to the Malaysian Bar has also been made possible by the hard work, support and dedication of our administrative secretariat.
Distinguished Guests, Ladies and Gentlemen.
Over the years our efforts have earned us bouquets and brickbats in equal measure. We are currently facing an unprecedented threat to our independence in the form of proposed amendments to our governing statute, the Legal Profession Act 1976. The proposals include the appointment of government representatives to sit in the Bar Council, a radical overhaul of our process for electing Bar Council members and Office Bearers, and a drastic increase in the quorum requirements for our General Meetings.[4] The basis for these proposals is manifestly spurious.
The proposed amendments are a serious attack on the independence of the Malaysian Bar and an unmasked attempt to interfere with our internal administration. These proposals are clearly intended to weaken our independence and paralyse the performance of our statutory functions. Our steadfast and unrelenting commitment to the Rule of Law appears to be the underlying motivation behind the proposals.
This Award therefore comes at a very critical time for the Malaysian Bar. It will further strengthen our resolve to repulse this blatant assault on our independence. I wish to here express our deep gratitude to the UIA, who together with 19 other leading international law associations and national bar associations, have resolutely and forcefully spoken up against the proposed amendments in solidarity with the Malaysian Bar. This international chorus of condemnation of the attack on us cannot be ignored and has certainly reinforced the importance of the independence of the bar as a universal principle of the Rule of Law and as a hallmark of a free society.
Our on–going campaign to oppose the amendments is called “Hands off the Malaysian Bar”, and it has reminded us of the following salutary principles.
First, the independence of the bar enables lawyers to fearlessly discharge duties to clients and to court. Indeed, one of the most valuable assets of the advocate “is complete independence and integrity”.[5] Moreover, it has been said, “Standing between authority and subject is always uncomfortable, often dangerous. But that is what we are trained to do.”[6]
Secondly, the membership of an independent bar association is equally vital. It has been observed that “A lawyer’s membership of a liberal profession and the authority deriving from membership of an independent bar association helps to maintain his or her independence.”[7]
Thirdly, no other organisation is better placed than bar associations to advise and comment on legislation touching on the rights of the citizen and their liberties. This function cannot be performed meaningfully unless the Bar is independent, and is free to comment, without fear of reprisal or penalty.[8]
Fourthly, an independent bar is the right of every citizen, and is essential for citizens’ right to access to justice.[9] Unless there is an independent bar, ready and willing to defend rights that are guaranteed in a society, there will not be freedom and the Rule of Law.[10] Indeed, it is to the independent bar that the citizen looks “for guidance on what the law is, what the law should be, and what the law must never be.”[11]
Fifthly, our own Federal Court has accepted that “an independent bar must not be subject to external influences of a non–professional character”[12] and the absence of political influence secures an independent Bar Council.[13]
Sixthly, an independent, effective and competent legal profession is fundamental to the independence of the judiciary. Lord Macmillan once said, “… a strong bar makes a strong bench.”[14] In the same vein, it has been observed that “The administration of justice is made possible not only by a fair and impartial judge, but also by a courageous and upright advocate.”[15]
Finally, an independent legal profession is vital to the economic progress and development of a nation. Unless investors are confident that they may resort to an independent and non–aligned bar for advice and representation in their disputes with any party, no matter how powerful or well–connected they may be, investors’ confidence is likely to deteriorate.[16] Thus, an independent bar is not just as “an adjunct grafted onto the commerce of society, but an essential element in its development.”[17]
These time–honoured principles must remain sacrosanct for all of us and serve to further fortify our commitment to protect and defend the independence of the Bar.
Distinguished Guests.
The threat to our independence will not deter or dissuade us from fulfilling our purpose, and acting true to our values and responsibilities. We are, and will continue to be a measured, moderate and non–partisan voice of reason and conscience in our society. We will always remain pro–justice and pro–Rule of Law, without fear or favour.
The Malaysian Bar pledges to continue lending its advocacy, both in the public arena and in the courtroom, to defending freedoms and rights, and working with all like–minded citizens to realise our nation’s aspirations for an inclusive and functioning democracy.
In conclusion, the Malaysian Bar again thanks the UIA and LexisNexis for the inaugural Rule of Law Award. It is clear that the UIA shares the Malaysian Bar’s principles and values. This makes the Award all the more meaningful to us and we look forward to continue working with the UIA to uphold these common principles and values.
Thank you.
Steven Thiru
President
Malaysian Bar
28 October 2016
Please click here to view the press release issued by the Union Internationale des Avocats, entitled "The Malaysian Bar Receives First UIA / LexisNexis Rule of Law Award", dated 20 Oct 2016.
[2] Legal Profession Act 1976, section 42(1)(a).
[3] Raja Aziz Addruse, ‘Editorial’ (1969) 3(4) INSAF, p. 81.
[4] Proposal to Amend the Legal Profession Act 1976 is a Severe Threat to the Independence of the Malaysian Bar, Circular No 127/2016, 27 May 2016.
[5] Mahajan CJ of the Indian Supreme Court in an address in 1954; see, R Sarkar, Modern Advocacy (1985) p. 83; Peter Slinn, Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach: Proceedings of the Latimer House Joint Colloquium, June 1998 (1999) p. 84.
[6] Pheroze Nowrojee, “No Respecters of Persons: Advocates in the Front Line” (2011) 20(1) Journal of the Commonwealth Lawyers’ Association, pp. 16–20.
[7] Structuring bar associations to ensure an impartial and independent legal system (Speech given by Margery Nicoll, Deputy Secretary–General and Director, International, Law Council of Australia and Chair, Bar Issues Commission, International Bar Association at the Iranian Bar Conference 2015, on 24 July 2015).
[8] Memorandum on the Independence of the Bar and the Legal Profession in Malaysia (1996) XXV No 3 INSAF 1–13, p. 9
[9]Commonwealth Lawyers Association, Feedback for the UN Special Rapporteur on the Independence of Judges and Lawyers, jointly issued by Dr Karen Brewer, Secretary General, Commonwealth Magistrates’ and Judges’ Association, and Mrs Katherine Eden–Haig, Secretary General and CEO, Commonwealth Lawyers Association, 10 June 2016.
[10] Dr Cyrus V Das, “Developing Constitutionalism: Role of the Bar Association” (1998) XXVII No 3 INSAF 9–18, p. 12.
[12] Malaysian Bar & Anor v Government of Malaysia [1986] 2 MLJ 225.
[13] Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, p. 343.
[14] Law and Other Things (1938), pp. 175–176; Dr Cyrus V Das, above n 10.
[15] Mohd Qarim Chagla CJ, in his Autobiography (1978) at pp. 70 and 72–73; Memorandum on the Independence of the Bar and the Legal Profession in Malaysia, above n 8, p. 7; Peter Slinn, above n 5.
[16] Memorandum on the Independence of the Bar and the Legal Profession in Malaysia, above n 8, p. 9.
[17] Ibid, per Lord Alexander of Weedon QC, “The Role of the Advocate in Our Society” [1992] 1 Malayan Law Journal xxxvii–xlviii, p. xxxviii.