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This is a special conference for the Malaysian Bar. It marks
the 50th Anniversary of Merdeka and the 60th Anniversary of the Malaysian Bar.
To the Malaysian Bar, Your Royal Highness has been and continues to be an
inspiration, not least, for the high value Your Highness places on the Rule of
Law, on excellence in the law, on scholarship in the law, and on integrity in
the law. Your Royal Highness is, in our mind, identified with everything that is
good about the law in this country. The era when Your Royal Highness sat on the
Bench and at its helm has been aptly described as, the Golden Age of the
Judiciary. We are therefore grateful to Your Royal Highness for agreeing to open
this important conference for us.
50 years ago on the 31st August 1957 the Federation of Malaya proudly joined the
ranks of the independent nations of the world. Our first Prime Minister Tunku
Abdul Rahman proclaimed that the Federation “shall be forever a sovereign,
democratic and independent state founded upon the principle of liberty and
justice and ever seeking the welfare and happiness of its people and the
maintenance of a just peace among all nations.”
This vision of the Tunku found expression in the Federal Constitution, our
founding document. The Federal Constitution contains the promise of an
independent and sovereign nation governed by the rule of law. It embodies the
hopes and dreams of the people. It encapsulates certain core principles and
entrenches our fundamental rights and freedoms. It empowers institutions and
authorities within its framework subject always however to the principles of
justice and the rule of law. It contains the multi communal compromises that
allows us to exist as a cohesive whole. Very importantly it has the mechanisms
that provide the checks and balances central to the rule of law. This includes
for example the role of the Conference of Rulers who must be consulted before
major appointments are made.
The experience of the last 50 years has been varied and this 50th Anniversary is
a golden opportunity for us to remember our founding document and to see what
our report card looks like after 50 years. Where do we stand in relation to
Tunku’s vision of liberty and justice? How have our institutions fared? Are our
fundamental liberties intact? How has the last 50 years shaped our Constitution?
These and many other issues will be the focus of the discussions at this 14th
Malaysian law Conference.
Central to the administration of justice and the function of lawyers, is the
rule of law. There has been a resurgence in the discourse on the rule of law and
its importance, not only in respect of the administration of a country, but in a
nation’s economic and social growth. This resurgence is important as we see the
rule of law coming under attack in nations around the world. In the words of
Matin Luther King, ‘Injustice anywhere is a threat to justice everywhere.’
Interestingly, two out of the five principles of our Rukunegara refer to the
Law. They are,
• Keluhuran Perlembagaan (i.e. supremacy of the Constitution) and
• Kedaulatan Undang-Undang (i.e. the Rule of Law)
That we are a society that is grounded in the rule of law can therefore not be
denied.
A. The Rule of Law
So what is this concept of the Rule of Law? Simply put, it means that no-one is
above the law including the government. This is unlike in the case of Rule by
law where the law is an instrument of the government and the government is above
the law. The rule of law is built upon two essential components.
1) The Submission of all to the Law.
2) The Doctrine of Separation of powers.
Some of the indicators that the Rule of Law operates and functions well in a
society are :-
• An independent and impartial judiciary.
• Adherence to the principle that there must be equality
before the Law
• The existence of a strong and independent legal profession.
• Speedy Access to justice for all
• The operation of the presumption of innocence
• The right to a fair and public trial
B. An Independent and Impartial Judiciary
Of all the institutions in a democratic nation, the most vital is that of the
Judiciary. It is the Judiciary that breathes life into the cold print of the
Federal Constitution making meaningful all those guarantees promised to the
citizens. It is the Judiciary that enlivens the spirit of the Constitution. It
is the Judiciary that upholds the rule of law. It is to the Judiciary that an
individual or a mighty corporation turns in seeking to protect and enforce their
rights before a fair and impartial arbiter. The Government and the Bar are in
agreement that a strong, independent and impartial Judiciary is critical to our
progress as a nation. Recently we have seen the credibility of the Judiciary
being brought into question and our system of appointments and promotions being
brought under scrutiny. We have consistently called for the setting up of a
Judicial Appointments Commission and I repeat that call. But that is not all.
There is an issue of public confidence that we must address. Public confidence
is a fragile commodity.
I quote the late Tun Mohd Suffian, the former Lord President when he said :-
“It is not enough for Government to have confidence in the
judiciary if the public does not. It is not enough for courts only to go through
the motion of trial. It is not enough if justice seems to be done if in fact
justice has not been done.”
The 1988 Judicial Crisis and many subsequent events did much to erode public
confidence in the Institution of the Judiciary. It is therefore important for a
process of truth and reconciliation to take place in this regard. This powerful
process allows all those involved to confront the truth of what took place and
to then move on. The Truth and Reconciliation Commission in South Africa is
testament to the empowering nature of this process.
In a study done approximately 2 years ago the World Bank recognised a direct
correlation between the rule of law and economic development. The study found
that the skills of its people and the value of institutions (as measured by the
rule of law) were what made nations rich. In short strong institutions and the
rule of law are good for investment. In a nation like ours with aspirations to a
first world economy, the administration of justice is key. Apart from some
obvious signs, as lawyers, we see subtle signs of the erosion of public
confidence in the increase in the number of clauses in contracts that stipulate
arbitration outside the jurisdiction in the event of disputes.
Judicial reform is taking place all over the world, even in societies that have
a mature legal system as it is recognised that the Judiciary must be ready to
meet the challenges of today’s world.
The Judiciary must of course play its part in zealously and jealously defending
the rule of law and upholding the doctrine of the separation of powers. In
Pakistan recently, the Judiciary rose to the occasion when they successfully
defended the rule of law in the episode concerning their Chief Justice. The
desire for independence must therefore also come from within. Self-emasculating
decisions by the Courts who too easily or unnecessarily surrender or abdicate
their powers must be avoided.
Strengthening Institutions
Independent institutions are not a sign of weakness of the government but a sign
of its strength. Finally, when all is said and done, the upholding of the
Federal constitution, the framework of the Nation, and democratic principles are
only as good as the institutions provided for under the Federal Constitution. As
such, there is a perennial need to maintain and strengthen such institutions.
C. Amending Oppressive Laws
The Bar Council takes the position that laws relating to detention without trial
must be repealed in keeping with the country’s pledge to uphold the universal
values in all aspects of national development, and for the promotion of the rule
of law and international human rights standards. The power of detention without
trial remains an exception to the norms of any fair, just equitable and
democratic society.
There are also currently 4 proclamations of emergency which have yet to be
annulled. The Emergency (Public Order and Prevention of Crime) Ordinance was
brought into force 37 years ago to deal with a specific violent situation - the
racial riots of 1969; a situation which no longer exits. Yet the Ordinance is
still being used. The Bar Council calls for the revoking of the proclamations of
emergency and a repeal of the emergency ordinances.
Other legislation that requires serious review due to the passage of time and
their having outlived their use are the Printing Presses and Publications Act (PPPA),
and the Sedition Act. We live in the age of the Internet now. There is little
point in controlling the press if it only means that the news will easily find
its way into cyberspace. We acknowledge however that there has been an increase
in the democratic space in this country but a review of some of these archaic
legislation will help to formalise this move.
D. Malaysia in a globalised environment
Increasingly, Malaysia has had to position itself in a globalised environment.
Malaysia is a signatory to the United Nations Charter and the
Universal Declaration of Human Rights (UDHR). These are now very much a part of
customary international law. We have also ratified and acceded to the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the
Convention on the Rights of the Child (CRC). Having said that, several and
significant reservations have been taken in respect of both these international
conventions. We should look towards full implementation of existing
international obligations contained in the UN Charter, UDHR, CEDAW and CRC.
In order to further align ourselves with internationally accepted norms,
Malaysia should immediately ratify and accede to other international conventions
and treaties that seek to protect basic human rights and dignities of
minorities, the marginalised and the vulnerable.
We should also seek to build and develop regional mechanisms that will serve as
an international check and balance. As a start, Malaysia should strongly support
(and in fact take the lead in) the development of regional mechanisms, e.g.
ASEAN Human Rights mechanism, and to ensure that adequate provision for the
inclusion of this is made in the ASEAN Charter to be signed in Singapore in
November 2007.
The International Criminal Court (ICC)
Special mention must be made of the International Criminal Court.
Malaysia has a long and time-honoured commitment to the cause
of international humanitarian law and peace-keeping. We have ratified the Geneva
Conventions, and more recently the Chemical Weapons Convention. Over the years
we have contributed peace-keeping troops to many war-torn and conflict-ridden
areas. Our assistance to Indonesia during the Asian Tsunami and to Timor Leste
in her progress towards independence and nation-building also speaks volumes
about Malaysia’s important role in international humanitarian efforts. Malaysia
now sits on the United Nations Human Rights Council and is Chair of the
Organisation of the Islamic Conference.
Yet, despite our obvious commitment to international justice and the rule of law
in the international arena, we have yet to sign or ratify the Rome Statute of
17th July 1998 establishing the International Criminal Court (ICC), the first
permanent international court before which those who have perpetrated some of
the most heinous crimes against humanity like the Milosevics would be brought to
justice.
To date, 105 countries have ratified the Rome Statute.
We are hopeful that the Government will expeditiously sign and ratify the Rome
Statute. As ever, the Malaysian Bar is ready to assist the Government in any way
we can in this regard.
E. Cooperation with the Government in promoting good governance
In recent years the Malaysian Bar has actively engaged with the Attorney General
and the Minister of Law in the area of Law Reform. One of the legislation
amended was the Legal Profession Act where amongst other things a discriminatory
provision which did not allow lawyers below 7 years to participate in the Bar
Council was removed. The Honourable Minister was responsible for facilitating
this amendment and we would like to record our thanks to him.
We are also pleased that the Honourable Attorney General now consults us
increasingly on proposed legislation. In the past year, the Bar Council has been
invited to give its input in relation to certain proposed amendments to the
existing law, such as in relation to the Law Reform (Marriage & Divorce) Act,
the Limitation Act, and many others.
Apart from forwarding its views to the relevant authorities, the Bar Council
further contributes to law reform in many other ways. The Council also
pro-actively participated in the 2 Police Commissions. When Parliament set up a
Select Committee not long ago to look into amendments and reforms in various
areas of criminal law, the Bar Council made written and oral presentations of
its views and recommendations to the Select Committee. A number of our
recommendations have now found their place in the amended law.
Access to justice
An aspect of the rule of law is the enhancement of access to justice. The
Malaysian Bar Council launched its Legal Aid scheme in 1983. Apart from
providing pro bono legal services, it also promotes legal awareness. It is an
entirely self–funded scheme, administratively financed by members of the Bar who
contribute an annual sum of RM100 each. On top of that, hundreds of lawyers each
year volunteer their services without charge, to handle and conduct legal aid
cases of various types. In the last 2 years more than RM1 million a year has
been spent by the Bar on legal aid.
The government also runs a Legal Aid scheme for the poor, namely the Government
Legal Aid Bureau. The Bar Council Legal Aid scheme supplements this Government
scheme. We are, with the encouragement of the Minister of Law, now looking at
ways in which we can work together in providing legal aid more efficiently to
the public.
F. A strong and independent legal profession
It has been universally recognised that an independent and courageous legal
profession is indispensable to the rule of law in a democratic society.
The Malaysian Bar has always acted to uphold the cause of justice uninfluenced
by anyone except its own collective conscience.
Anyone who has been in our ranks and has attended our very democratic meetings,
will know that only one thing drives the Malaysian Bar and that is the cause of
justice. And let there be no mistake. We turn the light of examination on
ourselves as much as anyone else. We are concerned about standards about
integrity and about discipline in the legal profession. We have an independent
Disciplinary Board set up under our Act presently headed by Tan Sri Khalid who
is ever watchful over the disciplining of members. We are looking at various
ways and means in which to improve our standards. And we have no problem with
criticism whether constructive or otherwise because we continually undertake a
process of self-examination. In fact we have a special session in this
conference that deals directly with these issues relating to the legal
profession. We welcome anyone who wishes to raise any issues whatsoever about
the profession be it about standards, integrity or discipline to attend and
speak your mind.
We value the Judges and Judicial Officers who work tirelessly and uphold the
standards and dignity of the Judiciary. We appreciate the burdens of their
office. Our criticism is levelled at elements that undermine them and the
institution of the Judiciary. When that happens, we will speak and we will
defend the institution against those elements. As Lord Denning has said in R v
Metropolitan Police Commissioner, ex parte Blackburn “Silence is not an option
when things are ill done.” We have much to be grateful for in this country, but
we speak because we know we are capable of so much more. And it is within our
grasp. It is up to us to seize the moment.
To understand our role, I can do no better than to quote C.J. Bhagwati when he
said :-
“The essential truth is that the judiciary is an institution. Its business as an
institution of governance is larger than the individual profile of a judge. But,
it is important to reflect on the constituent elements of this great
institution. This institution consists of the Bar and the Judges. While we
maintain our personal integrity, it is the Bar that fiercely supports the
independence of the judiciary. While we pronounce judgment, it is the diligence
and research of the Bar that unfolds in our work. While we express our
commitment to the people, it is the Bar that fiercelessly [sic] selects the
courses of action which we pronounce upon. Those that fight zealously for the
independence of the judiciary must surely know that is not enough. We need to be
equally over-zealous to fight for the independence of the Bar. To those who said
“hands off the judiciary” I add “hands off the Bar”.
Conclusion
I must express my gratitude to the Organising Committee for having toiled
tirelessly for many months in preparation of this event. My personal thanks to
the indefatigable, Roger Tan for seeing this conference through successfully. I
would like to acknowledge the generous sponsorship we have received from the
Government for this Conference which has enabled us to invite participants from
the Courts, the Attorney General’s Chambers and the police to take part in this
Conference. I would also like to thank the Honourable Prime Minister for hosting
a special dinner for all participants tonight. I am confident that this
Conference which promises much, will deliver even more than is expected, thanks
to the efforts of the Committee; and the attendance and participation of our
distinguished speakers, moderators and guests.
I wish you all an enjoyable and a rewarding Conference.
Thank you.
Ambiga Sreenevasan
President
Malaysian Bar 
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Circular No 304/2008 : Invitation - HR Debate 2008
