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©The Sun (Used by permission)
by Yeo Yang Poh

JUDGING from the responses received, the successful conclusion of the Bar election a few days ago received general support from members, but did not please everybody. Param Cumaraswamy is one of the displeased, as seen from his comment (see flashback, theSun, March 2).

Param had wanted the council to hold a fresh election. He presented his argument. His argument was considered, but did not manage to persuade the council. The Bar AGM will be held in two weeks and he can test his argument with the general body of the Bar. But he cannot wait. He has to publicly exhibit his displeasure.

The Bar election is governed by the Legal Profession Act that prescribes postal balloting. There are no polling centres for members to go to collect their ballot papers and cast their votes. Instead, members vote by returning their ballots by post or delivery to the Bar secretariat. These ballots must be delivered in sealed envelopes. They must be kept unopened, and later be delivered to the scrutineers after the close of the voting period.

In the circumstances, it is obvious that the only thing the Bar secretariat can do is to faithfully receive any and all envelopes returned to it, not knowing what is in fact contained in each and every envelope. The Bar secretariat is, and by law has to be, merely a passive recipient of all envelopes so returned. This is an indisputable fact that proponents of fresh election find so inconvenient to mention or discuss.

While there is nothing we can do to change the secretariat’s role as a passive recipient of returned envelopes, what can and should be done is for the scrutineers to undertake the duty as active verifiers of the authenticity of each and every returned ballot.

That would have solved the problem. But that was what two out of the three original scrutineers declined to do. Fortunately, that is now done. The problem has now been solved.

The obvious purpose of the saboteur is precisely to hope to nullify the election. On the other hand, the objective of the 3,300 honest voters was to elect their representatives to the next council. What proponents of fresh election want the council to do is to happily hand the fruits of fraud to one crooked saboteur on a platter, and in the same stroke frustrate the exercise by 3,300 honest voters of their right.

Fortunately, the present council has behaved responsibly, and now collects the prize of a public exhibition of wrath by those who, strangely enough, seek to persecute the victim for the crime.

The first scrutineers’ report based its recommendation not on full and established facts, but on the assumption or fear that there could have been other forgeries. That assumption has now been debunked. That fear has now been allayed. That recommendation falls.

While an obviously right and practical step is available, proponents of fresh election want the council to take an illogical route instead. The sole reason put forward for a fresh election is that 50 forged ballots were detected (as opposed to undetected) and were disregarded. Let us try to follow the logic. What it amounts to saying is this: whenever you detect forged ballots (that by law had to be returned in envelopes that must remain sealed), you must immediately hold a fresh election, and no other option can be right. This begs at least the following unanswered questions:

(a) Why must this be so?

(b) Why can’t the detected forged ballots be treated as spoilt ballots and be disregarded?

(c) How does one prevent the passive receipt of the contents of any envelope that the law prohibits one from opening at the time of receipt?

(d) If one nullifies an election simply because some forged ballots are detected, then one must consistently do so each time this happens. Knowing that there is no way of avoiding the receipt of unknown contents of sealed envelopes, is that not an absurd position to take and a dangerous precedent to set?

(e) If the detection of forged ballots in itself is sufficient reason to throw out an election, then wouldn’t it be an easy task for any fraudulent or mischievous person to nullify any and every Bar election? and

(f) Taking the above into consideration, is that the kind of decision that a responsible council would make?

These questions have been asked of those who insist on a fresh election. None has provided any logical answer, precisely because one does not exist.

While Param is quick and generous to publicly disclose his view and his annoyance that his advice was not followed, he is not at all generous to mention that there are other members of the Bar (including past presidents) who hold the view that a fresh election should not be called. The council had considered all views, and did not regard the opinion of other members as inferior to Param’s.

Bar leaders are not elected to do anyone’s bidding. They are elected to use their best judgments in managing the affairs of the Bar. It is not my understanding that, in so doing, if the collective and bona fide views of the council do not happen to find favour with one or more past presidents of the Bar, then the council must quickly switch its position. The recent trend of emotional public rebuke by a few, unfair and misdirected as it is, has no hope of weakening the current Bar leaders’ resolve to continue doing the right thing. This resilient and admirable spirit on the part of my colleagues in the council, unshaken in the face of adversity, makes me especially proud of the Bar and of the council in the past two years. I am confident that this much-needed spirit will persist in future councils.

I will be completing my term as president of the Malaysian Bar in about two weeks. Thereafter, I will belong to the category of persons known as past presidents. My pledge to members of the Bar is that I will not turn on the Bar, or seek to put down the council, just because my successors will not follow my advice. I shall not assume that I always know more than them just because I have been there and had held the position. I place this pledge in writing, so that I can be easily reminded of the same, should I one day commit the error of letting my emotion displace my love for the Bar.

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