The one colour of the Malaysian Bar

 

This is a response to the article written by lawyer Muhammad Shafee Abdullah entitled “The true colours of the Malaysian Bar”. In essence, he opines that the Malaysian Bar is partisan against BN politicians.

This opinion stems from the Malaysian Bar president’s statement on the attorney-general’s (AG) withdrawal of the appeal against Tengku Adnan Tengku Mansor’s acquittal in the Federal Court and previous statements (or lack of statements) by former presidents.

I respectfully disagree. The impression given by the article is that the president of the Malaysian Bar was condemning the judgment of the Court of Appeal through his statement dated Nov 19.

This is not the case. He merely asked that the AG provide an explanation of his decision to withdraw the appeal. That call was premised on the following facts.

1. The High Court found Tengku Adnan guilty;

2. The decision of the Court of Appeal was not unanimous and there was a dissenting judgment; and

3. The case concerns acts done by Tengku Adnan while he was holding an important public office.

Further, the High Court found Tengku Adnan guilty in December 2020. The appeal in the High Court was heard in April 2021. It was the same AG who was holding office at all material times.

Given the facts above, it is imperative that the AG provides reasons for his decision to withdraw the appeal in the Federal Court. The AG’s discretion under the Federal Constitution is no longer absolute. The Federal Court on April 30, 2021, ruled that the AG’s discretion is subject to review.

Coming to the Malaysian Bar’s position on prosecutions involving members of the now opposition:

1. In DAP secretary-general Lim Guan Eng’s trial, the DPP in charge gave a statement explaining his reasons to withdraw the charges;

2. Most of the prosecutions mentioned in the article were carried out under the Sedition Act 1949. The Malaysian Bar has consistently advocated for its abolition; and

3. The charges laid against PKR's Rafizi Ramli concerned an act of whistleblowing on his part. It could hardly be said that the prosecution was in the public interest. The government has in fact commenced proceedings against Dr Mohamad Salleh.

In fact, the Malaysian Bar spoke up when Abdul Gani Patail was removed as the AG and even applied to be amicus curiae in the Federal Court to support former premier Najib Abdul Razak’s position on the constitutionality of Section 106(3) of the Income Tax Act 1967.

The Malaysian Bar is not perfect and perhaps its previous statements ought to have been better drafted. However, the statement on Tengku Adnan’s appeal was necessary and timely.

The focus should never be on the personalities or actors, but rather on the rule of law.

If it just happens that the rule of law is often jeopardised where the personalities involved are from a particular divide, then so be it. That is what without fear or favour means. - Mkini

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SURENDRA ANATH is a member of the Bar Council and this is his personal opinion.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.