Dear members of the Bar,
Param Cumaraswamy wrote a public letter that was published in the New Straits Times on 8/7/06, concerning the Bar Council. The President responded by pointing out the correct position, which was published in the NST on 10/7/06.
Param has given his reply on 14/7/06, this time on the Malaysian Bar website. I write in response to his reply.
Param acknowledges that section 76(2) has always been in the LPA, since 1976. It is also not disputed that the Bar Council has always maintained its desirability, and has never called for it to be repealed.
During the trial of the 1st Rajasegaran suit some years back (in which Rajasegaran took the Malaysian Bar to court to prevent the Bar from holding an EGM to discuss the Judiciary), a member of the Bar Council at the material time was called by the Plaintiff (Rajasegaran) to testify. He was asked to reveal certain details concerning the proceedings of a Bar Council meeting. He declined to do so, by reason of section 76(2). The High Court judge, R K Nathan, ruled against the Bar and compelled him to reveal the details.
The Bar appealed on this issue (among others), all the way to the Federal Court. The team of counsel for the Bar was led by a former president of the Bar. I was part of that team. Another former president also stressed to the Council the importance of preserving the effect of section 76(2). The Bar forcefully argued the position. The Bar lost. The judge did not give effect to section 76(2).
The matter was widely publicized.
No one has questioned the Council as to why it took that position to defend section 76(2), all the way to the Federal Court. No one claimed that section 76(2) was abhorrent, or that it made the Bar Council non–transparent or non–accountable.
It is difficult to comprehend what the current accusations by Param are aimed at. What the present Council has done is totally in line with what previous Councils have maintained over a period of 30 years. What the present Council has done is in line with the strong position that the Bar took in the Rajasegaran case. The new section 76(3) merely restores the effect intended by section 76(2), as argued by the Bar.
The issue concerning the circulation of the legal opinions relating to the Van Buerle suit had been the subject matter of discussion at the AGM at which Param was present. The Council’s position was fully explained, and need not be repeated.
Param also expresses concern about the manner in which section 76(2), in his words, “has of late been invoked”, and he writes that “of late Council members are given a kit containing, among others, a set of 'Guidelines for Council Members'”. This is not true. The idea of a Bar Council Kit started many years ago. The “Guidelines for Council Members” went back even further. They were formulated many years ago, and have gone through the charge of many past presidents, and consistently maintained.
In fact, members might like to know that it was only about 3 years ago that the Council, under the chairmanship of Kuthubul Zaman, debated and decided to take a more liberal view of section 76(2) vis–Ã –vis members of the Bar (as opposed to third parties). This present Council has followed suit.
On the amendment regarding DB sittings, Param asks why the Bar Council “failed to oppose immediately such an outrageous proposal before sending the Bill to the Government”. He has made another wrong assumption. The Bill was not one sent by the Council to the Government. The Bill was prepared by the Attorney General’s Chambers; and we (along with others) gave our suggestions and input.
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