Tuesday, October 30, 2007

'We need to be equally over-zealous to fight for the independence of the Bar'

An extract from Malaysian Bar president Ambiga Sreenevasan speech at the 14th malaysian law conference 2007

http://www.sun2surf.com/article.cfm?id=19811

KUALA LUMPUR (Oct 30, 2007): To understand the role of the Malaysian Bar, its president Ambiga Sreenevasan last night quoted C.J. Bhagwati:
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This resurgence is important as we see the rule of law coming under attack in nations around the world. In the words of Matin Luther King, ‘Injustice anywhere is a threat to justice everywhere.’

Interestingly, two out of the five principles of our Rukunegara refer to the Law. They are,

• Keluhuran Perlembagaan (i.e. supremacy of the Constitution) and
• Kedaulatan Undang-Undang (i.e. the Rule of Law)

That we are a society that is grounded in the rule of law can therefore not be denied.

A. The Rule of Law
So what is this concept of the Rule of Law? Simply put, it means that no-one is above the law including the government. This is unlike in the case of Rule by law where the law is an instrument of the government and the government is above the law. The rule of law is built upon two essential components.

1) The Submission of all to the Law.
2) The Doctrine of Separation of powers.

Some of the indicators that the Rule of Law operates and functions well in a society are :-
  • An independent and impartial judiciary.
  • Adherence to the principle that there must be equality before the Law
  • The existence of a strong and independent legal profession.
  • Speedy Access to justice for all
  • The operation of the presumption of innocence
  • The right to a fair and public trial

B. An Independent and Impartial Judiciary
Of all the institutions in a democratic nation, the most vital is that of the Judiciary. It is the Judiciary that breathes life into the cold print of the Federal Constitution making meaningful all those guarantees promised to the citizens. It is the Judiciary that enlivens the spirit of the Constitution. It is the Judiciary that upholds the rule of law. It is to the Judiciary that an individual or a mighty corporation turns in seeking to protect and enforce their rights before a fair and impartial arbiter. The Government and the Bar are in agreement that a strong, independent and impartial Judiciary is critical to our progress as a nation. Recently we have seen the credibility of the Judiciary being brought into question and our system of appointments and promotions being brought under scrutiny. We have consistently called for the setting up of a Judicial Appointments Commission and I repeat that call. But that is not all. There is an issue of public confidence that we must address. Public confidence is a fragile commodity.

I quote the late Tun Mohd Suffian, the former Lord President when he said :-

"It is not enough for Government to have confidence in the judiciary if the public does not. It is not enough for courts only to go through the motion of trial. It is not enough if justice seems to be done if in fact justice has not been done."

The 1988 Judicial Crisis and many subsequent events did much to erode public confidence in the Institution of the Judiciary. It is therefore important for a process of truth and reconciliation to take place in this regard. This powerful process allows all those involved to confront the truth of what took place and to then move on. The Truth and Reconciliation Commission in South Africa is testament to the empowering nature of this process.

In a study done approximately 2 years ago the World Bank recognised a direct correlation between the rule of law and economic development. The study found that the skills of its people and the value of institutions (as measured by the rule of law) were what made nations rich. In short strong institutions and the rule of law are good for investment. In a nation like ours with aspirations to a first world economy, the administration of justice is key. Apart from some obvious signs, as lawyers, we see subtle signs of the erosion of public confidence in the increase in the number of clauses in contracts that stipulate arbitration outside the jurisdiction in the event of disputes.

Judicial reform is taking place all over the world, even in societies that have a mature legal system as it is recognised that the Judiciary must be ready to meet the challenges of today’s world.

The Judiciary must of course play its part in zealously and jealously defending the rule of law and upholding the doctrine of the separation of powers. In Pakistan recently, the Judiciary rose to the occasion when they successfully defended the rule of law in the episode concerning their Chief Justice. The desire for independence must therefore also come from within. Self-emasculating decisions by the Courts who too easily or unnecessarily surrender or abdicate their powers must be avoided.

Strengthening Institutions
Independent institutions are not a sign of weakness of the government but a sign of its strength. Finally, when all is said and done, the upholding of the Federal constitution, the framework of the Nation, and democratic principles are only as good as the institutions provided for under the Federal Constitution. As such, there is a perennial need to maintain and strengthen such institutions.

C. Amending Oppressive Laws
The Bar Council takes the position that laws relating to detention without trial must be repealed in keeping with the country’s pledge to uphold the universal values in all aspects of national development, and for the promotion of the rule of law and international human rights standards. The power of detention without trial remains an exception to the norms of any fair, just equitable and democratic society.

There are also currently 4 proclamations of emergency which have yet to be annulled. The Emergency (Public Order and Prevention of Crime) Ordinance was brought into force 37 years ago to deal with a specific violent situation - the racial riots of 1969; a situation which no longer exits. Yet the Ordinance is still being used. The Bar Council calls for the revoking of the proclamations of emergency and a repeal of the emergency ordinances.
Other legislation that requires serious review due to the passage of time and their having outlived their use are the Printing Presses and Publications Act (PPPA), and the Sedition Act. We live in the age of the Internet now. There is little point in controlling the press if it only means that the news will easily find its way into cyberspace. We acknowledge however that there has been an increase in the democratic space in this country but a review of some of these archaic legislation will help to formalise this move.

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We need to be equally over-zealous to fight for the independence of the Bar. To those who said "hands off the judiciary" I add "hands off the Bar".

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and more .....

read it at http://www.sun2surf.com/article.cfm?id=19811

Nazri shoots down Bar's views at law confab : http://www.malaysianbar.org.my/content/view/11881/2/

PM: Bar must be responsible for actions http://www.sun2surf.com/article.cfm?id=19802

Sultan Azlan Shah calls for judicial reform : http://www.nst.com.my/Current_News/NST/Tuesday/National/20071030095703/Article/index_html

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