The Malaysian Bar's International Malaysia Law Conference ("IMLC") 2018 is taking place from 14 to 17 Aug 2018 at The Royale Chulan Kuala Lumpur.
When Malaya took its rightful place at the table of independent, sovereign nations on 31st August 1957, blessed with a Federal Constitution drafted by some of the cleverest minds in the Commonwealth, her freedom from colonial yolk was announced to the world by Bapa Merdeka, our first Prime Minister Tuanku Abdul Rahman, in these stirring words:
………… and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a Constitutional monarchy based on Parliamentary democracy.…… and with God’s blessing 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”.
2. It was never contemplated then that the new nation, which evolved into Malaysia 6 years later, would be governed by the same coalition for more than six decades. It took 14 general elections for the citizens of Malaysia to express their collective will at the ballot box to effect a change of government: the only genuine proof that a nation is truly democratic . And what a peaceful, smooth and stable transition occurred on 9th and 10th May 2018: dates that will go down in posterity as of one of our greatest achievements, particularly at a time when the globe is dominated by authoritarian leaders and reactionary politics. Tribute must be paid to our people, and the institutions that rose to the occasion in circumstances where there was no local precedent and chaos was anticipated.
3. Congratulations are due to His Majesty, the Yang diPertuan Agong, the Conference of Rulers, the Barisan Nasional (losing power for the very first time), the defence and police forces and the civil service for discharging their respective heavy responsibilities in the correct and proper manner which has made Malaysia an example to emulate.
4. Domination of politics, nay, national life by one coalition for such a long, continuous and unbroken period exceeding half a century, was deleterious to constitutionalism and the rule of law. Centralisation of all power, first in the hands of the Executive branch, then by the Cabinet and ultimately in the office of the Prime Minister (with power to hire and fire) had the inevitable effect that history has taught us, a lesson often ignored by many societies across time. Power corrupts, and absolute power corrupts absolutely! The other branches of government and the great institutions of the State designed and created to be independent and impartial were emasculated. The critical lesson that Malaysians must learn from 60 years of one party rule is that institutions, systems and structures, however well intended and constructed, will fail if those who helm them lack courage, integrity and independence.
5. Sixty years is a very short time in a nation’s history. Yet, the Federal Constitution has been amended 57 times, even if in half of those exercises, the amendments were of a minor nature. But the amendments, substantially carried out by the Founding Fathers in the two decades following Merdeka in order to entrench their political control over the nation, truncated the safeguards that had been envisaged by the Reid Constitutional Conference, and adopted by the Founding Fathers themselves. Seldom in a nation’s history have leaders who had a principal role in contributing to a written constitution gone on to amend it in a self–serving manner, thereby calling into question their commitment to the original Constitution and the very nature and efficacy of the amendment process. Some critics go so far as to describe the present version as unrecognisable from the original, which constitutional scholars describe as the “Merdeka Constitution”.
6. A measured analysis would reach the conclusion that despite extensive amendments, the basic structure of the Merdeka Constitution is intact. Core values like Separation of Powers, Independence of the Judiciary, Rule of Law and Due Process remain enshrined. These values have been accepted, certainly by the electorate, and have to be strengthened in the coming years. However, one effect of the knee–jerk reaction of past administrations to resolve political problems of the moment through far–reaching constitutional amendments simply because they could do so by utilising the necessary two–third’s majority in Parliament, is to render the very notion of constitutional amendment an opprobrium.
7. That notion would equally be heretic. Constitutions are never intended to be static and frozen in time. They are living trees which must be allowed to grow expansively to their natural limits. No constitutional draftsman, however far–sighted or erudite, can be expected to provide for all contingencies that may arise in a nation’s journey into the future, extending to centuries. Two matters currently in our public discourse, which would require constitutional amendment to take effect, are illustrative. First, the reduction of the voting age to 18 years. Secondly, the creation of the office of the Director of Public Prosecution, and the transfer of prosecutorial power from the Attorney General to the new office. The merits of both proposals are self–evident, they enjoy popular support and the government should consider effecting these amendments notwithstanding any stigma attached to the process.
8. On behalf of Chambers, I congratulate the well deserved and long overdue appointment of Tan Sri Richard Malanjum as Chief Justice. Judicial reform is desperately needed, and we look forward to the leadership of the Chief Justice, ably supported by the 3 new office–holders, to whom we also offer congratulations, to undertake reform.
9. The unique circumstances surrounding the appointment of the Chief Justice just one month ago highlights the office of the additional judge of the Federal Court. Our greatest judges, Justice Eusoffe Abdoolcader and Tun Suffian Hashim never sought that office after their retirement. The full composition of the Federal Court is 15 judges, which not only is more than ample, but is greater than other common law countries. Thus, the membership of the apex courts in other jurisdiction is as follows: United Kingdom– 11, United States and Canada– 9, Australia– 7, New Zealand and Singapore –5.
10. Cases do not proceed automatically to the Federal Court. The Court controls its own docket by the power of leave. As the apex court, the Federal Court is meant to contain the elite judges: the best and the brightest of each generation. Hence, there are no objective grounds for additional judges to be appointed, and lessons must be drawn from this unfortunate episode.
11. In order for the judiciary, as the third branch of Government, to fulfill its crucially important duty of deciding on the constitutionality of written law, and to determine disputes between a state agency and an individual, disputes between those parties must be allowed to be ventilated on their merits before our Courts. Otherwise, how is the Court to perform its function as bulwark against the State? Hence, access to justice, that is, to the Court, is critical, and any legislative or executive attempt to curtail it must be rejected. It follows that provisions in written law which purport to oust the jurisdiction of the court must be repealed, and I will be recommending to the Government to put the necessary legislation in place.
12. Pending the enactment of such law, Chambers will henceforth cease to rely on ouster clauses in any written law, and will not object to a litigant’s right to access to court to pursue his or her grievances. Our focus will hereafter be on the merits of the complaint of a litigant, rather than searching for technical and procedural objections to strike out his or her case and thereby shutting the door to a court challenge.
13. One voice remained defiant throughout the dark days whenever the Rule of Law, the Separation of Powers or the Independence of the Judiciary were threatened by state action: the Malaysian Bar and its executive agency, the Bar Council. Whether by issuing public statements, passing resolutions, instituting legal proceedings and organising marches and protests, the legal profession collectively, and individually through the actions of principled, courageous lawyers educated the general public on the critical importance of these fundamental legal principles. Central to their struggle since 1960 when the Bar opposed the enactment of the dreaded preventive detention law, the Internal Security Act (“ISA”), was a commitment to human rights. The battle to put civil liberties on the forefront of the manifesto of every political party by GE13 was the singular contribution of the Bar. I therefore, acknowledge, on behalf of the Government of Malaysia, the role played by the Bar in fulfilling its statutory duty in upholding the cause of justice, uninfluenced by fear or favour. The Malaysian Bar has received international accolades from numerous independent organisations: it is not too late to be finally recognised by your own government.
14. It would not be invidious if I single out, and salute key personalities who led the Bar in the campaign to do the right thing, regardless of personal consequences: Raja Aziz Addruse, Lim Kean Chye, Karpal Singh , Param Cumaraswamy, Zainur Zakaria and Ambiga Sreenevasan, to name a few, acted beyond the call of all duty, and their contributions to national life must be acknowledged.
15. The laws that govern your profession: the Advocates and Solicitors Ordinance, 1947 and the Legal Profession Act, 1976 were drafted by your members. The State had little, if any input, on the provisions of the 2 Acts as originally drafted.
However, the Legal Profession Act, 1976 (“LPA”) has been amended on numerous occasions to punish the Bar for the public positions it has taken. Previous governments have seen it fit for the office of the Attorney General to be involved in many aspects of your profession, thereby making in–roads into your autonomy and independence. Let me mention some of these interventions into your affairs.
(i) the establishment of the Qualifying Board pursuant to Section 4 of the LPA with the task of deciding on the qualifications for professional practise, with the Attorney General as Chairman by virtue of Section 7(a) and with a casting vote in Section 9(3);(ii) the Attorney General‘s power to issue Special Admission Certificates under Part IIA, that is, under Sections 28A to 28E, to lawyers who have practised in any country for not less than 7 years to practise in Malaysia;(iii) the Attorney General shall co–chair the Selection Committee established in Section 40(c)(1) to recommend the granting of licenses to international partnerships, qualified law firms and foreign lawyers pursuant to Part IVA of the LPA, that is, from Sections 40 A to 40 O;(iv) the complete bar of Members of Parliament, State Assemblymen or office–holders of political parties, trade unions or other organisations certified by the Attorney General to serve on the Bar Council, State Bar Committees and any of their committees under Section 46A;(v) the approval by the Attorney General of Rules made by the Bar Council for regulating professional practice and etiquette under Section 77(1); and(vi) the approval by the Attorney General of Rules made by the Bar Council relating to insurance and indemnity for advocates and solicitors under Section 78A(1).
16. Permit me to announce publicly to your Law Conference what I had privately mentioned to your office–bearers in a meeting shortly after taking office. I shall advise the new Government that the State’s intimate involvement in the governance of the legal profession is inimical to the independence of the bar which is, in turn, a vital pre–condition to true functioning democracy. The State should retreat from such involvement. At that meeting, the Bar Council was invited to present a Bill to replace the LPA. If the combined talents of some 18,000 private practitioners cannot draft in quick time a new Act for their own profession, what hope is there for law making by others in the coming years. So Mr President of the Malaysian Bar, I am still waiting for a draft new Bill to govern your profession! And you have a free hand in drafting it! There are sufficient practitioners in the Cabinet who will be happy to pilot its passage in Parliament. In the new law, there should be no role for the Attorney General or any other state functionary. Your model should then be replicated by the other great professions: each should draft its own Bill with minimum input from Chambers until the Parliamentary Draftsmen begins his specialised responsibilities.
17. It is clear that plenty of written laws were passed in recent years in a rushed manner to combat particular problems that troubled some members of the executive. It is equally clear that many of these laws must be repealed in whole or in substantial part. The more difficult challenge is to draft new laws: this is not only creative, but often novel. Law making is a shared responsibility that requires collaboration from stake–holders, the Bar, Cabinet members individually or collectively, the Parliamentary Draftsman and finally Parliament. Everyone must play their part: I assure you that Chambers will promote law making, and I will personally take an interest in propelling their enactment.
Delivery of Expectations
18. That the administration of justice in the widest sense is in a sorry state can be attested by the outcome of GE14. This is not the time and place for attributing blame to each organ in the justice machinery as to why this has occurred. Rather, we must all take responsibility: the Bench, the Bar, the Attorney General’s Chambers and academia. We must work together and collectively repair the institutions that failed, replace the personalities that have violated their oaths of office, introduce reform and offer honest, independent and fair leadership.
19. As to the expectations of millions of Malaysians, I would seek patience and indulgence. Give us time; after all, Rome was not built in a day! In the reform journey, mistakes will be made. Errors of judgment will occur. But so long as these mistakes are made honestly, without malice and are minor in consequence, they should be overlooked. The struggle for reform must move ceaselessly and remorsely, but reform is a laborious and protracted process.
20. On 4th September 1957, during the ceremonial opening of the Supreme Court of the Federation of Malaya, just 5 days after Merdeka, the Honourable Tom Brodie, the Attorney General stated :–
“One thing is certain; that if the law fails the people, they will have – be forced to have – recourse to self–redress, and the whole nation will dissolve in violence and anarchy. The people must be taught to have confidence in the law and they will not give their confidence unless the law deserves it. This can happen only if justice is done and regularly done – active injustice, as one might call the penalising of the innocent, can cause nothing by hatred and fear. Passive injustice, the failure to remedy a wrong can, if frequent, excite nothing but contempt. To achieve or rather to approach true justice, which lies, so to speak, in the middle between active injustice and passive injustice, will call for the highest qualities not only of the Bench but of the Bar. Not only intellectual qualities, acuteness, learning and thoroughness, but, still more important, moral qualities as well; integrity, courage and candour. Failure in these qualities wherever they occur can cause nothing but injustice and can do nothing but harm to the prospects of the new nation.”
21. As the current holder of that office, I pledge my best to do my part in accomplishing the noble challenges that my predecessor of 60 years ago declared so eloquently.