The Bar has increasingly become a pressure group lobbying for social change, but
this does not mean that it engages in political causes.
CRITICISING the Bar’s historic ‘Walk for Justice’ on Sept 26, 2007, a
Minister was quoted as saying: “Those who participated in the ‘Walk for
Justice,’ their brains are like Opposition party. It is better for them to
register as members of an Opposition party. I will be more delighted if they
(Bar Council) register as an Opposition party so that I will know how to handle
them.”
The Minister was surely mistaken in likening members of the Bar to Opposition
party members. Perhaps the error stemmed from confusing the spearheading of
“political causes” by the Bar with supporting “political parties.”
Politics arises by the nature of human plurality. The aim of politics is to
promote the foundation of a “good life” and its superior end is freedom.
Politics affects every person’s life. From the price of fuel and vegetables to
whether a student is able to obtain a scholarship and the availability of public
schools and playgrounds, the political process (which puts the Government in
power) shapes the Government’s decisions on these matters. This process also
allows government policies to be critiqued and scrutinised.
Political causes attempt to bring about change by shifting or balancing the
power equation between the Government and citizens. In the process, those who
espouse the cause(s) attempt to redefine and reinterpret the “good life” as they
perceive it should be.
Agitating for an improvement in the administration of justice, legal reform and
human rights is a political cause. It would entail convincing those in authority
to effect certain changes.
This is not a task, which should only be left to political parties, and those
who champion political causes do not inevitably step into the shoes of political
parties or are to be viewed in the same light. This is where the Minister erred.
The role of the Malaysian Bar
No one should pretend that the Bar or its members are immune from the effects of
politics. The Bar has throughout its history and tradition assumed the mantle,
whether by accident or deliberately, of fighting for numerous causes, which are
deemed “political.” The 1988 judicial crisis is one example.
Continued opposition towards the Internal Security Act and Emergency Ordinance,
and heavy-handed measures to curtail constitutional liberties such as free
speech and the right to assembly are other struggles.
Upholding the rights of the Orang Asli is another political cause where a
redistribution of the country’s resources for the betterment of the indigenous
people is sought.
Does taking up these important matters by extension make the Bar a political
party, and one which is opposed to the Government?
The Bar’s statutory purpose in section 42 of the Legal Profession Act demands
that the Bar upholds the cause of justice without regard to its own interests or
that of its members, uninfluenced by fear or favour.
Protection of the public in all matters touching ancillary or incidental to the
law is another duty. The Bar cannot fail or neglect to perform these statutory
obligations.
Given that the Bar is an “apolitical” body (i.e. it does not support any
particular political party), it is nevertheless duty-bound to take up political
causes.
While there are attempts by various quarters to cast aspersions on the actions
of the Bar Council by continuing attacks that demonise, the truth is rather
different. It is neither anti-Government nor pro-Opposition. It is pro-justice
and anti-injustice, based on the issues in question.
The truth is that the annually elected 36-member Bar Council (which leads the
12,600-member Malaysian Bar) has as its members those aligned to political
parties on both sides of the divide — parties within the Barisan Nasional and
Pakatan Rakyat coalitions.
Some are card-carrying members of the component parties, some highly influential
in these parties. Some are sympathisers or supporters of these parties. Therein
lies the strength and diversity of the Council.
Problem with Malaysian politics
The political culture today is party-centric or personality-driven. While
political parties and their leaders keep at their different games, the real and
substantive issues of governance are either ignored, side-stepped or forgotten.
Proposed laws are not debated with sufficient aptitude in Parliament. Important
Bills, which affect human rights are not referred to bodies like the Human
Rights Commission and other stakeholders. One such example is the recent DNA
Identification Bill.
The fault lies not with politics but the people in politics and our political
culture.
As this is happening, the Bar’s role in public discourse regarding legislation
and rule of law issues is enlarged. With the Bar seeking to provide an
issue-based and pro-rights platform to act on a collective conscience of justice
and freedom, its role has taken a much greater prominence than anticipated.
It has seemed to become a repository of progressive ideas in search of a more
civilised Malaysia. By default, the Bar has increasingly become an indispensable
pressure group lobbying for social change. And rightly so.
Just as the Bar must always remain neutral in so far as political partisanship
is concerned, similarly it cannot remain indifferent to issues pertaining to the
rule of law, such as the weakening of our constitutional institutions and
increased rights abuses.
New platform: a lawyers’ party?
Let us return to the Minister’s statement. The results of the 12th general
election have opened up the possibility of a two-party system. This represents a
watershed in our democracy.
Is there now a need for a third alternative to promote greater intellectual
discussion on issues of the day?
Perhaps it is time for a purely issue-driven, pro-rights party bound by a common
cause to secure, advocate and protect the rule of law while promoting and
improving human rights.
The Minister should be careful about what he wishes for, as he may get it, and
ultimately regrets his wish.
> The writer is a member of the Bar Council’s National Young Lawyers
Committee (NYLC). Putik Lada, or pepper buds in Malay, captures the spirit and
intention of this column – a platform for young lawyers to articulate their
views and aspirations about the law, justice and a civil society. For more
information about the young lawyers, please visit www.malaysianbar.org.my/nylc.
WE MUST STRIVE ON, UNDETERRED written by Stephen Tan Ban Cheng,
Friday, September 12 2008 06:12 pm
My dear Edmund
I take on board what you have written. The Bar is apolitical in the sense that it is not into party politics but it must continue to be the catalyst for change by adding its voice to what has gone wrong. It is for the government of the day to value such an input and such a feedback for whatever it is worth.
To label our efforts as anti-Government is a bit over the top since we have no political axe to grind, in the sense of partisan politics. Because of such criticisms and not despite it, we must continue to play our yeoman's role in and for our nation. We must remain not just undeterred, but inspired by such an unfair labelling exercise.
One of the finest hours of the Malaysian Bar occurred before I was even a member. It was the anti-OSA (Official Secrets Act) campaign. If I am right, the Malaysian Bar went against the OSA as it was conceived. The OSA was felt to be far too wide.
That the campaign failed is not the point. The point is that the sarong of secrecy was cast so wide that it willy nilly nurtured a culture of corruption.
Similarly, to me, the Malaysian Bar's ongoing campaign for a free media is still important because of the many instances of graft that a free media would have easily trawled up from the vast ocean of corruption.
In our fifty years of Independence, Malaysia has not produced a Bob Woodward or a Carl Bernstein (hope I got the names right, as alas I am writing from a failing memory). I suspect we do have our Watergate. But never mind, because it took the Americans nearly 140 years as an independent country to produced these investigative reporters.
Stephen Tan Ban Cheng
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My dear Edmund
I take on board what you have written. The Bar is apolitical in the sense that it is not into party politics but it must continue to be the catalyst for change by adding its voice to what has gone wrong. It is for the government of the day to value such an input and such a feedback for whatever it is worth.
To label our efforts as anti-Government is a bit over the top since we have no political axe to grind, in the sense of partisan politics. Because of such criticisms and not despite it, we must continue to play our yeoman's role in and for our nation. We must remain not just undeterred, but inspired by such an unfair labelling exercise.
One of the finest hours of the Malaysian Bar occurred before I was even a member. It was the anti-OSA (Official Secrets Act) campaign. If I am right, the Malaysian Bar went against the OSA as it was conceived. The OSA was felt to be far too wide.
That the campaign failed is not the point. The point is that the sarong of secrecy was cast so wide that it willy nilly nurtured a culture of corruption.
Similarly, to me, the Malaysian Bar's ongoing campaign for a free media is still important because of the many instances of graft that a free media would have easily trawled up from the vast ocean of corruption.
In our fifty years of Independence, Malaysia has not produced a Bob Woodward or a Carl Bernstein (hope I got the names right, as alas I am writing from a failing memory). I suspect we do have our Watergate. But never mind, because it took the Americans nearly 140 years as an independent country to produced these investigative reporters.
Stephen Tan Ban Cheng