 Yang Amat Arif Tun Dato' Seri Zaki bin Tun Azmi, Ketua Hakim Negara;
Yang Amat Arif Tan Sri Dato' Seri Alauddin bin Dato' Mohd. Sheriff, Presiden Mahkamah Rayuan;
Yang Amat Arif Tan Sri Arifin bin Zakaria, Hakim Besar Malaya;
Yang Amat Arif Tan Sri Datuk Seri Panglima Richard Malanjum, Hakim Besar Sabah dan Sarawak;
The Chief Justice of Singapore, the Honourable Chan Sek Keong;
The Chief Justice of Brunei Darussalam, the Honourable Dato Seri Paduka Haji Kifrawi Bin Dato Paduka Haji Kifli;
The Chief Justice of Guam, the Honourable Robert J. Torres;
Yang Berbahagia Tan Sri Abdul Gani Patail, Peguam Negara Malaysia;
Hakim-hakim Mahkamah Persekutuan;
Hakim-hakim Mahkamah Rayuan;
Hakim-hakim Mahkamah Tinggi;
Pesuruhjaya Kehakiman;
Michael Hwang, President, Law Society of Singapore; dan
Para peguam dari Semenanjung, Sabah dan Sarawak.
Yang Amat Arif, saya dengan rendah diri memohom izin meneruskan hujah saya dalam Bahasa Inggeris. My Lord,
I am honoured to speak not only for the Bar Council but also on behalf of the Advocates Association of Sarawak and the Sabah Law Association, who are represented here today with the presence of their respective Presidents, Frank Tang and Datuk John Sikayun.
Today heralds a significant new era in Malaysian legal history, as it is the first time the Opening of the Malaysian Legal Year has been held on a Federal level. The purpose of this august gathering, participated in by ALL stakeholders in the judicial system, is to symbolise the sanctity of the Rule of Law.
My Lord,
I would like to look back at the past year and also consider the challenges ushered in by the new year.
Revitalisation of relationship between Bar and Bench
The period post-1988 up to the appointment of your predecessor, The Honorable Tun Abdul Hamid Hj. Mohamad, was mostly dark and difficult, during which the relationship between the Bench and the Bar was turbulent and sorely tested. Tun Abdul Hamid opened a positive new chapter in respect of this relationship. My Lord,
You have built on this forward step and we truly welcome the open-door approach that you have extended to us. We have had more meetings with the Judiciary in the last year than in all of the previous two decades!
The Attorney-General’s Chambers (AGC) is a crucial component in the judicial system and I am pleased to say that we have had many consultations with Tan Sri Abdul Gani Patail, and look forward to many more to come. One important aspect to note is that our meetings with the Judiciary and the AGC are constructive, cordial, frank and very open.
There is mutual respect amongst all the stakeholders and while we strive to achieve an accord on matters of concern, we are nevertheless able to agree to disagree on various issues.
Some notable developments in 2009 relating to the practice of law
The past year has been a challenging one for the legal profession, in terms of the practice of law as well as in other areas. Where the former is concerned, some notable, or somewhat “notorious”, developments included:
- •Introduction of the court recording and transcription system
- •Expediting of hearings
- •Introduction of the tracking system
- •Closer monitoring and supervision of judicial performance through the introduction of the Key Performance Indicators (KPI)
The notorious development I had alluded to is the implementation of the KPI, which has caused many problems for our practitioners. This resulted from either misinterpretation or misunderstanding about the KPI.
The journey of implementing such changes, initiated after decades of relative inactivity, is surely not without both bumps and potholes, figuratively speaking.
The problems faced by lawyers in courts have largely been resolved, and continue to be addressed. Your Lordship has assured us that the Judiciary will continue to dialogue on, and tackle, these issues, and we appreciate this assurance.
Some anticipated changes for the profession
We anticipate changes for the profession in the following areas:
- •Liberalisation of legal services, with the concomitant advent of foreign law firms
- •Proposed Combined Rules of Court
- •Major amendments to the Criminal Procedure Code
With respect to the liberalisation of legal services, the Bar Council believes in progressively liberalising the legal services sector by allowing foreign law firms to enter the country on a joint law venture basis. The Bar Council is opposed to Bank Negara Malaysia’s idea of allowing the entry of foreign legal firms into the Malaysian market on a stand-alone basis, eventhough it is exclusively for Islamic finance matters.
As for the Combined Rules, we foresee a major overhaul of the rules and procedure relating to civil practice. We urge that reform be implemented progressively, in stages and over time.
We also foresee amendments being made to the Criminal Procedure Code. Amendments proposed include the introduction of pre-trial management and a move towards codification of the plea-bargaining process.
Access to justice – legal representation and legal aid scheme
As rules of procedure for both civil and criminal litigation evolve towards case management, and concepts relating to plea-bargaining are codified, legal representation becomes all the more paramount. In reply to a question in Parliament, the Government confirmed that 78% of persons charged in the Magistrates’ Courts are unrepresented, which includes 85% of all juveniles so charged. This shocking reality needs to be redressed. The current Bar Council legal aid scheme is limited and pro bono services alone are insufficient.
In respect of remand hearings and proceedings, the situation is equally grave, where likely more than 90% of remanded persons are without legal representation.
We are therefore pleased to note that the AGC is currently looking at introducing a comprehensive legal aid scheme, whereby members of the legal profession would be employed to provide legal aid services not only at the stage of the trial proper, but most crucially at the remand and bail application proceedings.
The Bar Council has proposed that a National Legal Aid Foundation be established, and we have committed to work together with the AGC to ensure that a workable scheme is put in place in the near future. In order to be effective, any legal aid scheme that is introduced must be comprehensive and sustainable.
Access to justice thus continues to remain a central priority for us.
Common Bar Course for law graduates
My Lord,
Since 1993, the Bar Council has been advocating the establishment of a Common Bar Course (CBC) as a single entry point into the legal profession for all law graduates, both local and foreign. The CBC is intended to replace the Certificate of Legal Practice and all law graduates must enroll and successfully complete the CBC in order to practise law in Malaysia.
We are pleased to note that the Qualifying Board under the Chairmanship of Tan Sri Abdul Gani Patail has agreed, in principle, to the establishment of a CBC, which we believe will address issues of quality and uniformity within the legal profession. We hope that the CBC will be implemented in the near future.
Other developments and challenges
Outside of legal practice, there have been various developments and challenges as well. Rule of Law We are proud to announce that a Miri Declaration was jointly agreed upon in August 2009, wherein the Advocates Association of Sarawak, the Sabah Law Association and the Bar Council reaffirmed their pledge of mutual collaboration in furtherance of the interests of the legal profession as well as the interest of the public, and in ensuring the smooth administration of justice and the preservation of the Rule of Law.
Upholding the Rule of Law and supremacy of the Federal Constitution is also the cornerstone of the Bar Council’s ongoing MyConstitution campaign, spearheaded by the Constitutional Law Committee, which launched Phase Two of this dynamic campaign just yesterday.
Judicial independence and impartiality My Lord,
Judicial independence is a core element of the Rule of Law. The qualities required of a judge are competence, impartiality and independence. Let us bear in mind a key distinction between judicial impartiality and independence:
Impartiality refers to a state of mind or attitude of the judge in relation to the issues and parties in a particular case. Independence, on the other hand, denotes not merely a state of mind or attitude in the exercise of judicial functions, but a status or relationship to others, particularly to the Executive, that rests on objective conditions or guarantees.
The history of the judiciary around the world demonstrates that the greatest danger of interference comes from other Government institutions or from political parties. A judiciary must not only be unfettered and free of all influence but must also have the appearance of independence. A court can only be truly accepted as a just and impartial court if the public is confident that it is so.
Judicial appointments
With respect to judicial appointments, the setting up of the Judicial Appointments Commission (JAC) was a key milestone towards transparency and accountability for the appointments and promotions process. The open application system for Judicial Commissioners, together with the conduct of interviews, is an unprecedented, but most welcomed, initiative. We remain concerned that the passage of the JAC has its limitations. There is room for further improvement. We applaud the appointment of senior practitioners to the Bench. The Judiciary will surely be the richer from the infusion of experience and commercial expertise from the Bar. Intimidation of, and undue pressure on, the Judiciary
My Lord,
We wish to put on record our support for the Judiciary in the face of attempts to harass, and put undue pressure on, the Judiciary and the judicial process. Recent incidents, along with the hacking and defacing of the Malaysian Judiciary’s website last week, represent an intolerable assault against the Judiciary. Judges must not become targets for intimidatory tactics. Harassment of lawyers
My Lord,
On a number of occasions during the last year, members of the Bar were called in for questioning by police on matters relating to the execution of their professional duties. We believe such police action is tantamount to undue harassment and intimidation that encroaches upon the ability of lawyers to execute their professional duties effectively.
The most blatant incident occurred on the night of 7 May 2009 when five of our Legal Aid lawyers were arrested in the course of carrying out their professional obligations as advocates and solicitors.
The lawyers had requested that the police give them access to their clients, who had been arrested earlier that night whilst holding a candlelight vigil at the same police station over the recent arrest of an activist. While waiting to provide legal representation to their clients, the lawyers were themselves arrested for allegedly participating in an unlawful assembly. They were detained overnight in a police lockup and interrogated.
We were outraged at this blatant transgression of the rule of law and the constitutional right of every person to counsel and access to justice.
The independence of the Bar is fundamental to the rule of law, and members must be given access to their clients, and be free to act for them without fear or favour. We will continue to speak out against, and oppose, any threat to this independence.
Closing remarks My Lord,
An independent, impartial and competent judiciary is a cornerstone of social order. Such a judiciary can bring to life the proverb that “One hour in the execution of justice is worth seventy years of prayer”.
As such, we are heartened to note that our Judiciary is being revitalised. The Judiciary is more responsive and confident, and has more spring in its step!
Looking ahead, we are hopeful that there will be continuous and sustained improvements to the judicial system, and we pledge to support this process. We also affirm our commitment to continue nurturing an open and cordial relationship between the Bar and the Bench, and between the Bar and the AG’s Chambers. We thank the Chief Justice for this judicial initiative. Congratulations on this successful birth of the Opening of the Legal Year in Malaysia, and may we have the pleasure and the privilege of commemorating many more.
Ragunath Kesavan
Chairman, Bar Council
16 January 2010
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