The Bar Council’s silence on Sri Ram is deafening – Lukman Sheriff Alias and others
Published: 29 October 2014
When the matter came for its first day of hearing at the Federal Court yesterday (October 28, 2014), it is interesting to note the full list of counsels appearing for Datuk Sri Anwar Ibrahim for his final appeal against the Court of Appeal’s sodomy conviction. Leading the long list of 14 lawyers was former judge of the Federal Court, Datuk Seri Gopal Sri Ram.
While as of to date there is no specific law that bars former judges from appearing in Court, the Malaysian Bar had however just seven months ago in its 68th Annual General Meeting held on March 15, 2014, passed a resolution calling for the prohibition of retired judges of superior courts from appearing as counsels. In the said motion that was passed by majority vote, it was made clear that one of the fundamental principles of the Malaysian legal system is that not only must justice be done, it must also be seen to be done, and thus appearances matter.
In this regard, it was agreed upon based on the said resolution, “that it is a principle of antiquity in common law jurisdiction that a retired judge of a superior court should not practice as counsel before the judges who were previously his colleagues or his juniors to him on the Bench”, since “such conduct may have the effect of intimidating the Bench, and worse, it could give the perception that the said retired judge/counsel and his client have an advantage over other counsel and adverse parties.”
Thus it is indeed a cause for concern when Sri Ram appeared as counsel before the panel judges of the Federal Court, who were clearly his former peers and juniors on the Bench. This is a clear breach of the long held tradition and convention that has been observed and honoured by members of the legal fraternity until recent years. As stated clearly and unequivocally in the said resolution, this may not only affect the public perception of the administration of justice in Malaysia, but also cause conflict when the retired judge/counsel relies on or distinguishes decisions made by him while he was on the Bench; and worse still situations may arise where such retired judges invoke the principle of stare decisis to submit that the Court is bound by grounds of judgment of his handed down when he was a judge.
Adding salt to injury is the fact that as at the time of writing, the Bar Council has yet to make a stand on the issue. This failure to issue a statement against Sri Ram’s appearance as counsel yesterday and to act swiftly is indeed deafening, and nothing short of dumbfounding, considering that the Bar has, based on its previous undertakings, prided themselves for ostensibly being protectors of justice without fear or favour, and are always on their toes to bark against any such infringements, especially against certain parties.
That is not to mention that the Council’s silence on the issue is also a clear non-compliance of the Malaysian Bar’s resolution resolving that the Bar Council shall take all reasonable steps to educate the public on the reasons why it took such stance against retired judges. It is indeed cause for concern as the failure of the Bar shows how selective and biased they are in upholding justice, and raises pertinent questions as to whether the whole Bar must now be reformed.
It is also noteworthy that a news portal had even reported that Anwar has said that it was Sri Ram who approached Anwar instead of the other way around, which, if such were true, might be further cause for investigation for an infringement of the non-touting rule under Rule 51 of the Legal Profession (Practice and Etiquette) Rules 1978. – October 29, 2014.
*Lukman Sheriff Alias is a lawyer practising in Kuala Lumpur, while Aidil Khalid and Faidhur Rahman Abdul Hadi are lawyers practising in Kota Damansara, Selangor, and Hartamas Heights, Kuala Lumpur, respectively and are activists for Concerned Lawyers for Justice (CLJ).
*This is the personal opinion of the writers or publication and does not necessarily represent the views of The Malaysian Insider.
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Maybe it’s time we ignore the Malaysian Bar’s resolutions – Faidhur Rahman Abdul Hadi
Published: 29 October 2014
According to a news portal, lawyer and Bar Council member Syahredzan Johan, in response to mounting criticism over the Malaysian Bar's silence over ex-Federal Court judge Gopal Sri Ram's representation of Anwar Ibrahim, took to social media defending this silence, saying, among others that a resolution passed against ex-judges appearing as counsels in courts did not impose a restriction on retired judges and was not meant to be a constraint.
It is therefore, according to him, non-binding and unenforceable.
No doubt resolutions passed by the Malaysian Bar are not law and cannot be enforced. But such resolutions are supposed to be statements of intent, issued purportedly to represent the views of the legal profession as a whole, particularly when passed at Annual General Meetings or Extraordinary General Meetings, when all members of the Bar have the opportunity to attend, voice their views and vote thereon.
Only this month we have witnessed the Malaysian Bar's so-called "Walk for Peace and Freedom" which itself is organised pursuant to a resolution passed by the Bar Council at an Extraordinary General Meeting held on September 29, 2014.
The resolution describes the Sedition Act 1948 as draconian, inhibiting freedom of speech and not right for this present day and age. The resolution also calls on members of the Bar to pressure the Malaysian government to hold to its previous alleged undertaking to repeal the Act, and decries the government's inaction over this undertaking. But this resolution is non-binding and unenforceable too, isn't it? Is it to be ignored as well?
The question that begs the most answer to now is, does the Malaysian Bar, and do members of the current Bar Council in particular, have any credibility left within them?
It does not take much to see that they don't. On one hand, the Bar Council wants the Sedition Act 1948 repealed. It set up and supported the #MansuhkanAktaHasutan campaign, led by non-other than Syahredzan himself. It has, via its president, Mr Christopher Leong, in particular, issued numerous statements against the continued use of the Sedition Act.
It has also convened a special EGM tabling a resolution calling for the Act's repeal, and pursuant to the resolution, passed by 701 Malaysian Bar members who represent a mere 4% of the total practising lawyers in Malaysia, who number some 15,000, it has organised a walk against the Sedition Act, and has even enlisted the support of copious international bar associations, from the Law Society of Australia to the American Bar Association, as well as international legal organisations such as LAWASIA and the Commonwealth Law Association, to support its cause.
On the other hand, the Bar Council, consisting of the very same members who now sit therein, earlier, in this very year itself, 2014, passed a resolution at the Annual General Meeting on March 5, against the practice of ex-members of the Bench appearing as counsel before the Judiciary of which they themselves were once members of and now says that such resolutions are non-binding, unenforceable and to be ignored.
By the way, I note that Syahredzan made it clear he is not speaking on behalf of the Bar Council, but being a member thereof, his statement would, especially in the context it was given, have effect nonetheless as representing the views of the Bar Council, especially when its president continues to maintain his silence on this matter.
Double standards and hypocrisy much?
Perhaps the rest of us practising lawyers should take the cue and start ignoring Malaysian Bar resolutions. After all, if they won't be respected by the office bearers themselves, then why should we?
We have businesses to run and families to feed. We don't have time for the games the Bar Council wants us to play and in any event, the resolutions are, in their words "not meant to be a constraint".
So, fellow members of the Bar, the next time a notice of AGM or EGM arrives on your firm's doorstep, urging your attendance at the next meeting and your vote in favour of any resolution, do yourself a favour instead and toss it aside.
That is the treatment that the Bar Council gave its own resolution on ex-judges appearing as counsel, that is also the treatment we should give the resolution against the Sedition Act, and that, my learned friends, is what we should tell the Bar what we think of their resolutions. – October 29, 2014.
* Faidhur Rahman Abdul Hadi reads The Malaysian Insider.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.
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