Rule of law calls for lawyers to be respected and show respect

 

An advocate and solicitor of the High Court of Malaya is an officer of the court as well as a protected species under the Legal Profession Act 1976, Evidence Act 1950 and several other laws.

In essence the legal profession in Malaysia is a regulated one. A lawyer’s practicing certificate is issued by the High Court. For lawyers in Peninsular Malaysia, it is issued by the High Court of Malaya.

What that implicitly means is that practicing lawyers are officers of the court. They cannot be subjected to contempt proceedings by the judiciary or the public prosecutor for performing their duty to a client. Neither can they be sanctioned for acting without fear or favour to uphold rule of law and justice. I have dealt with this point in the case of Public Prosecutor v. Aluma Mark Chononso (2020) and in several other judgments.

On the other hand, advocates and solicitors who commit any misconduct may be subjected to disciplinary action by a disciplinary board presided over by a person nominated by the Chief Judge.

There are many other provisions in law and practice which recognise lawyers as a component pillar of the rule of law. Members of the judiciary and all related agencies, including the legal fraternity, are obliged to respect their role and render assistance in upholding the cause of justice.

It is equally important for practicing lawyers to earn the respect of these bodies by being ethical in their professional practice.

They must also upgrade their knowledge and qualifications to keep up with the times and trends and avoid the temptation to survive as single degree holders (unless they are senior practitioners who have acquired substantial expertise through many years in practice).

Without sufficient knowledge, practicing lawyers cannot safeguard the interests of their clients or assist and guide the court to ensure that its decisions are in accordance with the rule of law.

When I commenced chambering and began going to court, police personnel manning the courts would always greet lawyers with the traditional salute. I could sense the tremendous respect enforcement officers and court staff had for lawyers. Judges were equally polite, both in and out of the courtroom.

Then the Salleh Abas debacle happened, and a sustained judicial assault on lawyers began after they threw their support behind the Lord President, including by way of a protest march.

As a result, lawyers of that era suffered many assaults on their dignity.

They found their easy access to the previous Supreme Court building in front of Dataran Merdeka via its front and back entrances blocked.

Police personnel became unfriendly, and lawyers were no longer allowed to wait around the corridors for appearances before registrars as per the usual practice. They were also told to wait outside the court or in the bar room, which naturally became overcrowded.

Several judges gave lawyers, except those who patronised the judiciary then, a hard time.

In my view, the ill treatment of lawyers took away their gumption for protesting any form of judicial misconduct in the years that followed.

Even I was disgusted by the level of judicial abuse, and, in 1995, wrote an article in Insaf, the journal of the Malaysian Bar, titled “Syariah law, administration of justice and the Federal Constitution.”

In it, I observed: “Day by day we see more and more incidents of judicial abuse which go unredressed. The majority of the victims are counsel who are not able to defend their integrity and dignity before an abusive adjudicator clothed with judicial privilege and armed with powers of contempt and enjoying bullying tactics.

“Incidents of abuse nowadays are openly reported in newspapers and even brought to the attention of Parliament, but remedial measures are not easily forthcoming as there is fear that it may indirectly curb the existing independence of the judiciary.”

The article was my attempt to educate judges – by citing the Holy Quran and Islamic jurisprudence – not to abuse the judicial seat. I also documented the nature of the judicial abuse without fear or favour.

It was indeed a harsh article, and I did not expect the Bar Council to publish it. However, the late Raja Aziz Addruse, doyen of the Malaysian Bar, said it was a courageous article and approved its publication.

Judicial abuse on lawyers only subsided when Ahmad Fairuz Abdul Halim became Chief Justice. He called for lawyers to be treated with respect by judges.

Later, Chief Justice Zaki Azmi took the initiative to implement a court recording system which expedited hearings and reduced judicial abuse. At the time, he told judges in no uncertain terms that complaints of abuse by lawyers and the public will be verified against the recordings and acted on, if merited.

Unlike many other professions, Article 5(3) of the Federal Constitution recognises the role of lawyers in society and tasks them with representing and defending accused persons.

This implicitly means that the judiciary and all relevant investigative agencies are constitutionally obliged to facilitate lawyers in their service towards an accused person.

Likewise, all members of the Malaysian Bar are also obliged to ensure that lawyers are given every opportunity to defend an accused. This obligation extends to providing legal aid, if warranted.

In fact, I will go one step further to say that the government’s role is not just to prosecute.

It also has a constitutional obligation to fund legal aid schemes to ensure that all accused persons are represented, even at the appellate stage.

In essence, accused persons must not be obstructed by the judiciary, prosecution, media or anyone else in such manner as to result in them being convicted and sentenced without legal representation.

To assist lawyers in their constitutional role as well as in all other cases before the courts, Section 126 of the Evidence Act 1950 provides for legal professional privilege, which prevents them from disclosing to third parties professional communications relating to their clients, subject to certain limits.

I would be remiss if I did not express my disappointment with the legal industry for forcing a former prime minister to suffer imprisonment without legal representation, and for the indignity suffered by his lawyers in a manner unprecedented in our legal history.

Article 5(1) of the constitution, the supreme law of the land, provides that no person shall be deprived of his life or personal liberty save in accordance with law.

In my considered view that powerful constitutional protection accorded to an accused person was breached.

I take the view that a remedy lies by way of a writ of habeas corpus, or a petition to the Malay rulers under Section 300 of the Criminal Procedure Code and other provisions of the constitution. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.