On 20 May, 2012, a senior lawyer and a former member of the Bar Council of Malaysia, Roger Tan, wrote his thoughts on the Malaysian Bar EGM held on 11 May, 2012. His article, "Unswayed by fear or favour", was published on The Star and can be accessed here. 2 days later, 8 other lawyers wrote in LoyarBurok an article entitled "Fallacies spun by critics of the Bar" in response to Roger, where the article can be accessed here. I have had the privilege of reading both pieces and wish to respond to the latter, my views have been published on LoyarBurok, which I reproduce below:-
The resolutions carried by the
Malaysian Bar in its recently concluded EGM on 11 May, 2012 have led many to
talk and debate about the Bar Council, the Malaysian Bar and its resolutions.
Amongst the thoughts which I have had the opportunity of reading, I am
particularly intrigued by the views exchanged between Roger Tan and 8
LoyarBurokkers, namely Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga,
Mahaletchumy Balakrishnan, Marcus van Geyzel, Seira Sacha Abu Bakar and
Sharmila Sekaran. I am, however, perturbed by some of the arguments of the 8
LoyarBurokkers and I wish to put forth my views here.
At the outset, whilst I am a member
of MCA, which is a known fact to the likes of Edmund, Shanmuga, Marcus and
Roger, I hope that this fact, when read together with this article, would not
be construed as an attempt by me to be a candidate or to obtain any sort of
benefit from the ruling coalition. I see it necessary to highlight this fact
not because the 8 LoyarBurokkers have mocked Roger for not expressly revealing
his political affiliation, but for the acts of some members of the Bar who, at
the height of anger during the EGM, have conveniently made such accusations
against those who spoke against the motion at the recent EGM.
With that record set straight, I shall
endeavour to put forth my disagreements with some of the arguments of the 8
LoyarBurokkers.
The stand of the 8 LoyarBurokkers
The essence of the 8 LoyarBurokkers’
2,600 words long article “Fallacies Spun by Critics of the Bar”, to my
understanding, are as follows:-
(1) The Bar did not prejudge the issues
as the resolutions carried were based on the observations of the monitoring
team whose credibility is undoubted; and
(2) The Bar need not condemn the unruly
behaved protesters and it was a fallacy or misapprehension that to be an
independent organisation, the Bar must always be even handed or restrained in
its remarks.
Whilst I may lack the wisdom of the
8 LoyarBurokkers or that of Roger Tan, it appears to me that some of the
fallacies alleged by the 8 LoyarBurokkers do not hold water.
Did the Bar prejudge the issues?
In 900 or so words, the 8
LoyarBurokkers have sought to argue that the Bar did not prejudge the issues.
The arguments of the 8 LoyarBurokkers were premised upon the grounds that:-
(1) the 12 resolutions carried by the
Bar were based on the observations of the 80 monitors whose credibility are
without doubt, and
(2) the political or social belief of
one would not impair the ability to state fact of how excessive force was used
by the police or how a fellow Malaysian was assaulted and battered by the
police.
Firstly, in support of the 8
LoyarBurokkers’ contention that the credibility of the monitors of the Bar are
without doubt, the 8 LoyarBurokkers have cited the names of 5 notable,
respectable senior lawyers who were also members of the monitoring team. It is
not my intention to challenge the credibility of these 5 respected senior
members of the Bar but the fact remains that the Bar has, intentionally or
otherwise, left out the names of the remaining 75 or so monitors.
What is the rationale behind the
Bar’s action to hide the identities of these remaining 75 or so monitors? Is it
because the Bar Council is fully aware of the fact that at least 1 of its
monitors was playing the role of both a prosecutor and a judge, when the
monitor is also a member of Bersih’s steering committee?
At this juncture, before any form of
attack is hurled at me, I have no qualms confessing that, despite my known
political affiliation, I was part of the Melaka Bar monitoring team that
observed the Bersih 3.0 protest in Dataran Pahlawan, Melaka. After I submitted
my report, I also informed the person in charge, the Melaka Bar Representative
to the Bar Council, Desmond Ho, that some of my observations may have been
worded in what some may perceive as a biased manner, and I left it to him to
make necessary amendments before he compiles all the observations and submitted
to the Bar Council.
Hence, I am of the honest belief
that a monitor’s political or social belief do, to a certain extent, affect the
observations recorded.
This leads me to the second point
where the 8 LoyarBurokkers appear to be undisturbed by the political or social
beliefs of the individual monitors. Whilst I wish to thank them for indirectly
having that sort of confidence in me that I would have been able to report my
observations as they were, I am perplexed by the fact that some of these 8
LoyarBurokkers have just, not too long ago, criticised the appointment of Tun Hanif
Omar as the head of the Government-appointed panel which is tasked with
investigating the events and allegations surrounding the Bersih 3.0 rally.
For the record, I share similar
concerns on Tun Hanif’s appointment as the chairman of the panel, as the panel ought
to be free and independent from the interested parties i.e. the Government, the
police and the participants. As such, I am of the view that the former Chief
Justice of Sabah and Sarawak Tan Sri Steve Shim would have been a better person
to lead the so-called independent panel, with the former IGP Tun Hanif Omar
assisting the panel by sharing his knowledge from his experience as a former
IGP.
In the same vein, I also believe
that whilst it may be difficult or impossible for the Bar to form a completely
neutral monitoring team, the Bar ought to have at least disclosed
identities of the members of the monitoring team who may have vested interests.
The Bar ought to be open about it and, I am sure, has nothing to hide. This is
particularly so when the Bar must not only be independent, but also be seen as
independent.
Moving on, in their article, the 8
LoyarBurokkers have also asked important factual questions- who ordered the
closure of the nearby LRT stations so as to prevent the people from dispersing;
who ordered the destruction of cameras belonging to journalists; what justified
the 4 hours of continued attacks. Ironically, when the 8 LoyarBurokkers claimed
that the Bar did not prejudge, they have also admitted in their article that
answers to these questions have yet to surface. Yet, without answers to such
important factual questions and with the factual matrix in dispute, the Bar had
for instance, made the finding that the police had fired tear gas in a manner
to box in the protesters rather than to disperse. As a matter of fact, when the
tear gas cannisters were fired, were the police fully aware of the fact that
access to the nearby LRT stations have been closed thus preventing people from
dispersing since the persons instructing the police and those in charge of the
LRT stations are different?
Notwithstanding the fact that we
have yet to obtain any answer to such pertinent factual question, the Bar in
its Resolution 1 (c), however, has condemned the police of, amongst others,
“trapping… the participants with water cannon and tear gas instead of
permitting them to disperse”. If this is not prejudging, then I ought to be
guided by the more senior members of the Bar of the meaning of prejudging,
hoping to earn some CPD points in the process.
The unruly protesters were less
blameworthy?
In their article, the 8 LoyarBurokkers have also argued that
there was no need to condemn members of the public who turned violent for,
amongst other reasons, “most thinking Malaysians who have access to the alternative
media… are not convinced that these so called ‘rioters’ are as blameworthy as
the police”.
This is a dangerous notion as it seeks to create a sort of
“pecking order” of blameworthiness. Section 42(1)(a) of the Legal Profession
Act 1976 impels members of the Bar to uphold the cause of justice without fear
or favour and the Bar is not to allow its interests or that of its members to
affect them in any way.
It then begs the question of how could we speak out only for
the wronged protestors and not for the wronged police officers? We cannot treat
the sacrosanct principle of equality before the law as something economical
that can be altered to suit a manufactured “pecking order” of culpability. As
such, it is my honest belief that all members of the Bar, including the 8
LoyarBurokkers, share my view that a wrong is a wrong regardless of who the
culprits are and the scales of justice cannot be tipped simply because we feel
one is less culpable than the other.
Having said that, it is only prudent to come to such a
drastic conclusion after a thorough probe had been conducted. At the very
least, we ought to let the Courts decide whether or not the alleged offences
have been committed and the amount of damages suffered. In this respect,
instead of urging the Government to pay “just and proper compensation” to the
victims, as was stated in Resolution 7, the Bar ought to have urged the victims
to come forward and assist them to go through the due process of law to obtain
compensation.
Notwithstanding the above, the Bar’s carefully worded
resolutions have also omitted the fact that the Bersih protests were conducted
in 11 cities in Malaysia whereby no untoward incident was reported except in
Kuala Lumpur. Given that the respective state Bars have also sent their
respective monitoring teams to observe the various protests around the country,
it begs the question why weren’t the reports from the monitoring teams in the other
states tabled to aid members in developing a more complete view of the events
that took place in Kuala Lumpur and 10 other cities on 28 April 2012?
Further, in the unholy haste to compile the final report,
the Bar has neglected to at least mention an incident in Melaka where a DAP
state assemblyman breached the barricade in Dataran Pahlawan, Melaka. Hence, it
is only natural for some to question the impartiality of the Bar because we
have been perceived as selective in our use of facts and in our condemnation;
contravening long-cherish legal principles. While I accept this may have been inadvertent
given the hurried manner in which the report was compiled, it is not too late
to correct this.
Also, I wish to raise a procedural matter with regards to
the EGM where we were compelled to vote for the resolutions en-bloc rather than
opening each of the 12 resolutions to be voted individually, allowing us to
vote in favour of the neutral ones and voting against the ones some of us found
to be contentious and lop-sided.
I do hope in future, the Bar will allow greater degree
flexibility in such matters, in line with the democratic values we rightly
demand others to respect and uphold. This, I believe, is what the so-called
detractors of the Bar want and will, in the long run, makes the Bar a better
partner in the administration of justice in this country.
