Another Response to the 8 LoyarBurokkers

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.