CHANGE THE LEGAL PROFESSION ACT
THE RIGHT TO MAKE LAW AND THE DUTY TO DEFEND IT
The only legitimate source of law making is the legislature. It is a power and right that is reserved exclusively for the legislature alone to exercise. It is not for the Bar, the legal profession or the bench to interfere with. The latter groups have no constitutional right power or authority to legislate in any respect.
Any competent lawyer worth their salt exercising their skills properly as lawyers should be able to navigate through changes to laws (the Legal Practice Act) as they should with any law, act of of parliament or decision of an activist or restrained judge in the courts.
Dealing with change; change is continuous and dealing with it should be a part and parcel of the skills sets of trained lawyers. In the process of dealing with change lawyers ought to also be able to remain steadfast and principled, balancing their approach to change, in the exercise of their professional obligations to the public on the one hand and to the courts on the other, in a forensic and impartial manner.
Quintessential to the Malaysian Bar’s position against the government’s proposal to change the Legal Profession Act is their “the sky is falling down” argument, which it advances through sympathetic media outlets.
The Malaysian Bar avoids addressing its own failings over the years which are too numerous to go into detail here. Nor does it acknowledge the falling standards of the legal profession it represents over the past 2 decades.
The Malaysian Bar it appears suffers from selective amnesia and a lack of introspection into its own affairs to justify maintaining the Legal Profession Act in its present form, or its so called “independence” from scrutiny and accountability.
WHO DOES THE LEGAL PROFESSION ACT SERVE?
What appears lost in the heat of the argument about proposed changes to the Legal Profession Act in Malaysia is, the central issue that, the Legal Profession Act (“LPA or Act”) is not an Act designed to serve the interests of lawyers. On the contrary, the Act is an act that ensures the protection of the public and the courts through ensuring the highest standards of professional conduct by legal practitioners who serve them.
The Act sets out the parameters that govern professional standards and limits the boundaries within which lawyers must stay in the performance of their duties as officers of the courts and as members of a self- regulating body of legal practitioners.
The LPA is not an Act designed to serve the interests of lawyers as many lawyers would have the public believe is the case. The recent history of lawyers engaging in prohibited activities outside of the confines of the LPA in pursuit of their own interests as a political organization, is well documented. The evidence is peppered with examples of cavalier, out of control behavior by individual lawyers acting as if the Act did not exist or matter. The Bar’s response to this sort of conduct has been minimal at best.
The Malaysian Bar has for far too long been left to its own devises, departing liberally from the existing Act unchallenged. The absence of independent supervision and scrutiny of their conduct has encouraged the situation. This unfortunately is one of the recognized consequences of self- regulation with professional bodies worldwide.
The Bar now complains of ‘government interference’ in their affairs because, the very real prospect of supervision of their conduct, in an effort to raising it to universally recognized professional standards, threatens their present form of existence as a pseudo political party, albeit one without a valid mandate.
A new Act further threatens to rein in their unmandated role as self- appointed guardians of public morality and as an opposition party to government, a position they have created for themselves at the expense of good governance and minimal professional standards.
THE MALAYSIAN BAR-ITS HISTORY OF OBSERVANCE OF THE LPA AND THE LAW
The current LPA in Malaysia has been made largely redundant by the conduct of members of the Malaysian Bar, through abuse and misuse of their position as lawyers. Those political elements within the Malaysian Bar who dominate the board, have turned it into a political party, applying selectively the disciplinary provisions of the existing Act with kid gloves or ignoring it altogether on those favoured by its board. Against others the Act is applied as a tool of oppression.
Take the recent case of the Bar against Tan Sri Shafee Abdullah. Then compare the allegations against Tan Sri Shafee Abdullah by his ‘peers’ in the Bar for supposedly ‘breaching’ the Act against the naked and unmitigated professional misconduct of other lawyers like Amrick Singh Sidhu, Sivarasah Rasiah, Ambiga Srinivasan, Eric Paulsen and Mariah Chin Abdullah. Srinivasan is a former chairman of the Malaysian Bar. Her misconduct is exemplary and falls within the realms of criminality.
As far as Ambiga’s position is concerned, her unsubstantiated claims against government, suggesting the general elections held in Malaysia are not free and fair as justification for her annual riot she refers to as Bersih, is sufficient cause under the Act for her to have been hauled up before the Bar’s disciplinary committee to be disciplined. She was not. Her allegations in fact bring the government and all its institutions into disrepute including the courts.
On another and more serious score, Ambiga is on record having admitted to receiving money from her allies in the Selangor state government (without lawful authority) and from foreign sources to further her attempts to unseat government in an undemocratic unconstitutional way. Srinivasan’s conduct is evidenced by her public admissions which amount to treason by any definition. Yet the Malaysian Bar celebrates her as a ‘Hero’. Her misconduct continues to be ignored by the Bar and it remains unpunished and unpurged.
The Bar seeks to preserve the Legal Profession Act in its current decrepit, eroded and unenforceable condition, for what one can only conclude is a self-serving purpose. There is no argument advanced by the Bar about the benefits to the public of proposed changes to the Act thus far.
CELEBRATED BREACHES OF THE LPA BY LAWYERS
Another stark example of the misconduct of a member of the Bar comes in the form of the highly celebrated Amrick Singh Sidhu. Sidhu’s now legendary allegations of murder and corruption against the family of the prime minister remain, unproven, unpunished and unpurged in much the same way as the misconduct of Srinivasan remain, unproven, unpunished and unpurged. He remains unrepentant. His offences unpunished.
Insipte of the facts flying in the face of Sidhu’s numerous unproven allegations against the prime minister and his spouse, the failure by the Bar to prosecute Sidhu has allowed and encouraged Sidhu to continue to act in the way he has with relative impunity. In the process Sidhu, Srinivasan and to some extent government inaction has helped to erode what little remains of the credibility of the Bar and the effectiveness of the existing Act.
The most recent outrage by Sidhu in ‘exposing details’ of his ‘client’ Charles Morais’ allegations against the government and his late brother Kevin Morais, a former DPP, has gone unnoticed by the Bar.
Sidhu and Charles Morais implicated the late Kevin Morais in the commission of a criminal offence of downloading sensitive (privileged and classified) material about an alleged prosecution by the DPP against the prime minister of Malaysia. Sidhu provided no valid proof of his or Charles Morais’ assertions. Instead Sidhu’s misconduct in destroying his client’s privilege was ignored by the Bar and Sidhu continues to be celebrated by the Bar.
Sidhu’s use of the late Balasubramaniam (private investigator) and his wife Santamil Selvi as props to reinforce his unsustainable allegations surrounding the death of Altantuya Sharibu came un stuck at a press conference earlier this year in the offices of lawyer Datuk Ramesh Rao. Santamil Selvi Balasubramaniam’s widow accused the PKR of which Sivarasah Rasiah is a member and Sidhu her lawyer of offering her money to spruce up her story before the cameras.
At an earlier press conference in July 2008 in the presence of his lawyers Sivarasah Rasiah and Manjit Singh Dhillon, Amrick blundered into admissions of having crafted the controversial Balasubramaniam Statutory Declaration with which amongst other things he sought to implicate a number of people in the death of Altantuya Sharibu.
The point here is this. The Malaysian Bar did nothing to rein in Sidhu inspite of his ongoing professional misconduct, or to rein in his advisors Sivarasah or Manjit Dhillon in wake of the admissions, the glaring deficiencies and inconsistencies in the drawing up of that Balasubramaniam affidavit ; and finally in the disclosures and allegations of impropriety by Santamil Selvi against Sidhu.
THE BAR’S ROLE IN CRUCIFYING THE FORMER CHIEF JUSTICE
The misconduct of the Malaysian Bar is not confined to the antics and misconduct of its former president Ambiga Srinivasan or Amrick Singh Sidhu alone. It extends to the growing incidence of misconduct by a coterie within its membership who aided and abetted the recent snub by UNESCO of Datin Rosmah Mansor and chastisement of the courts and the judiciary in public. In doing so the Bar have subjected the courts and judiciary to ridicule, leading to extreme outcomes such as that which forced the resignation of the former Chief Justice of Malaysia Tun Fairuz.
The Bar’s participation in that outrage initiated by disgraced former opposition leader Anwar Ibrahim, involved the use of clandestinely obtained footage of lawyer Lingham at his home purportedly speaking to a third party arranging with that third party to procure favours improperly from the then Chief Justice Fairuz. That footage was then disgracefully peddled over the internet for effect in support of Anwar Ibrahim against government.
The Bar’s hand in that event was not so invisible. Their self-righteous conduct in entrapping the then Chief Justice in furtherance of the misadventures of the now disgraced Anwar Ibrahim was perhaps the high water mark by that group within that has hijacked the Malaysian Bar.
THE LEGAL PROFESSION ACT IS FOR THE PROTECTION OF THE PUBLIC AND THE RESTORATION OF CONFIDENCE IN THE MALAYSIAN BAR
It is events like the Lingham tapes, the Ambiga Srinivasan attempts to overthrow the government, the breaches of lawyer client privilege by Amrick Singh Sidhu, the mercenary ‘guns for hire conduct’ of the late Karpal Singh (the lawyer MP who outed Anwar as a homosexual and his offences of sexual assault) in parliament, that demands an appropriate response from government. That response demands the Bar be reined in and made accountable in the interests of the law and the public.
Any legislative change proposed by government must factor in regulating the legal profession with a new Legal Profession Act. Government must also appoint an independent external body to monitor the conduct of the Malaysian Bar and its members to ensure their compliance with the new legislation.
The Malaysian Bar needs to be reformed by its members. If not then, the government has an obligation to do the job. Any new legislation needs to ensure the so called independence of the Bar, instead of protecting what the Bar now perceives is an exception from compliance with the law. A form of exceptionalism.
To restore public confidence in the legal profession, the Bar must work and co-operate with government in setting up the a Legal Service Commission to ensure impartiality and a more robust independent monitor over the conduct of the legal profession under a new Act.
The Malaysian Bar council should work with government instead of resisting change to the Legal Profession Act in order achieve better outcomes for all. The Malaysian Bar ought to stop their propaganda and their desperate misinformation campaigns to justify their continued incompetence, self serving existence and unaccountability to the public.