Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

©The Sunday Star (Used by permission)

It peaked when Queen’s Counsel Cherie Booth applied for admission to the High Court of Malaya to represent Fawziah Holdings in the Federal Court under Section 18 of the Legal Profession Act (LPA). 

Her application for ad-hoc admission was objected to by Metramac, Daim and Halim, the Attorney General, the Bar Council and the KL Bar Committee. 

On June 15, a five-man bench of the Federal Court rejected her appeal. 

Chief Justice Ahmad Fairuz Sheikh Abdul Halim, in an oral judgment, held that while Booth had the special qualifications required under the LPA, her credentials were also available among local lawyers.  

As a result, public curiosity has now changed to public concern about a Malaysian’s right to choose a lawyer of one’s choice in a civil case. 

How is a litigant supposed to know who the local experts are when lawyers in Malaysia are not allowed to advertise? 

If a litigant can afford a QC and the QC is available for all the court dates, why should he or she be denied the right to have the lawyer of choice?  

Why should the opposing litigant fear the presence of a QC when all the QC does is present arguments and the final arbiters of the merits of the argument still lie in the hands of the court? While the court may be satisfied with counsel's ability, does not the litigant's confidence in her/his counsel count, especially when millions of ringgit may be at stake? 

Datuk Param Cumaraswamy said that confidence in one's counsel was important but the right to choose one's own counsel was a qualified right, not an absolute right. 

“Section 18 allows for the ad-hoc admission of foreign lawyers but they are still subject to our laws. 

“Having restrictions are not unique to Malaysia. It’s the same in the United Kingdom and other countries,” said the former United Nations Special Rapporteur on the Independence of Judges and Lawyers. 

The Malaysian legal system is still quite young in comparison, could we not learn from the advocacy of foreign lawyers who are experts in a particular field? 

“In the early days, many Silks (QCs) did appear in Malaysian courts but over the years more and more of our lawyers are now experts. 

“I agree that transfer of expertise is important but if local experts are available, why go elsewhere? 

“You must remember that the refusal in this case should not be taken as a precedent for other applications,” he added. 

V. Sithambaram, chairman of the Bar Council’s Criminal Law Committee, agreed that right to choose one’s counsel was qualified. 

“But I do agree that in an important case, if the litigant feels the best lawyer is a QC, and in this case even an eminent public law lawyer like (Datuk Dr) Cyrus Das felt Booth was the best counsel, who are we to say otherwise?” 

He said the courts could read Section 18 of the LPA more liberally so as to give meaning to the fundamental right to a counsel under the Federal Constitution. 

“At the end of the day litigants must leave the court knowing that they had the best counsel and justice was served.” 

Asked why the council had objected to Booth’s application when it had not done so with applications for QCs during the 'mega-defamation awards' period in Malaysian legal history, its chairman Yeo Yang Poh said: 

“The choice of counsel must be a counsel who has right of audience under Malaysian law. 

“We gave our views in this case based on the materials provided in the application. 

“Under Section 18, the applicant must possess expertise that is not available locally and that was not the case here,” he added. 

Datuk Seri Dr Visu Sinnadurai felt, however, the courts should take a liberal interpretation of Section 18 in ad-hoc admissions of foreign lawyers. 

“These lawyers are experts in their field and their arguments can only assist the court in coming to its decision. 

“It’s certainly time the Bench and Bar take a more liberal view especially with the liberalisation of legal services under GATS (General Agreement on Trade in Services),” added the former High Court judge and former senior judicial specialist in the World Bank’s Judicial and Legal Reform Unit in Washington. 

Senior lawyer Datuk Zaid Ibrahim said he was surprised by the council’s objection. 

“This whole thing is farcical; the only person that matters is the client and it is the client who is taking the risk. 

“We will not be flooded with QCs. By and large 99% of clients choose local lawyers. 

“There are times when, because of the complexities and differing points, we will be enriched if we have a QC arguing the case. 

“The LPA is out of touch with the times.”  

Zaid acknowledged, however, while his firm had branches in Singapore, Jakarta and Bangkok staffed by Malaysian lawyers they did not represent their clients in court. 

This case has shown that choosing one’s counsel is not an absolute right here but Malaysians can probably take some comfort from the fact that each application will be dealt on its own merit. 

Comments (0)

Subscribe to this comment's feed