Press Release from the President of the Malaysian Bar

PRESS RELEASE

Criminal justice system is the foundation of social order

It is very clear, from the comments reported in the press in recent days, that the Minister for Home Affairs, the Inspector-General of Police and the Minister in the Prime Minister’s Department, among others, have wholly misconstrued the position of the Malaysian Bar in respect of the arrests of Fadiah Nadwa binti Fikri (Secretary), Murnie Hidayah binti Anuar, Puspawati binti Rosman, Ravinder Singh Dhalliwal (Chairperson) and Syuhaini binti Safwan from the KL Legal Aid Centre (“the LAC lawyers”).

The crux of the issue is that the LAC lawyers were arrested in the course of carrying out their professional obligations as advocates and solicitors, in accordance with the law of the land. There is a crucial difference between such detention and previous incidents where lawyers were arrested when acting as private citizens. There are sufficient guidelines to regulate the role and responsibilities of lawyers, which stipulate that lawyers should not place themselves in a position of conflict. The LAC lawyers were at the police station to render legal assistance, and at no time were they part of the alleged unlawful assembly.

Section 28A (4) of the Criminal Procedure Code (CPC) and Article 5 of the Federal Constitution guarantee an arrested individual’s right of access to a legal practitioner of his/her choice, and these provisions must be upheld. Logically, lawyers can only provide such legal assistance if they are present at the police station.

The Malaysian Bar is therefore neither seeking nor expecting preferential treatment nor exemptions from the law. It is seeking instead to uphold the fundamental right of lawyers to have access to their clients. It is this role that we are modelling.

The presence of a lawyer when an accused is questioned or arrested promotes accountability because lawyers serve as a check-and-balance, on the spot, against police excess. It must be remembered that the police force, as a law enforcement agency, commands far more physical and tangible power than any other public service agency, and hence a mechanism for accountability is all the more necessary. Access to legal counsel is thus a cornerstone of our criminal justice system, and a crucial safeguard for the rights of a detained person.

It is ironic that Datuk Seri Mohamed Nazri should now characterise the Malaysian Bar’s intention to file suit over the arrests as “an attempt to intimidate enforcement authorities from discharging their duties” when, in reality, the arrests were clearly a form of harassment to obstruct the lawyers from discharging their responsibility to provide legal representation to their detained clients. It is not the action of the LAC lawyers that has undermined the legal system but rather the arbitrary action of the police in arresting them while they were performing their duty.

We shall proceed with legal action to determine the role and position of advocates and solicitors in such situations and to seek clarification of the scope of Section 28A (4) of the CPC, which we believe the police breached in this instance.

The government must accept dissent as a legitimate form of expression and a democratic norm. As much as it may be unpalatable, it must not be silenced but countered with reforms and concrete changes.

Ragunath Kesavan
President
Malaysian Bar

19 May 2009

I am READY

I am READY. Come globalisation, DiSLY welcome the challenge. But then again whether my colleagues in the Bar is ready too. Well ball now on the Bar Council. But nevertheless I am READY and PREPARED. The question now is WHEN.

----- The Star

KUALA LUMPUR: The Government is keen on opening up the legal sector to international foreign firms particularly in specialised areas.

In an immediate response, the Bar Council said it was ready to open up in "permitted practice areas" and believed that liberalisation of the legal sector is something inevitable in today's age of globalisation.

At a press conference Monday, de facto Law Minister Datuk Zaid Ibrahim said liberalising the legal profession has been talked about for a long time but it is time now "to put more energy and urgency" into it in view of the global economy.

"We must allow the realities of the market place to be a factor in our decision to open up. How do we retain our best lawyers if we don't have international law firms in our country?

"If we can have some well known international names here, then perhaps we can keep them (our lawyers) here. We must open up. We must have a competition policy. We must have freer trade and environment," he said, urging the Bar Council to sit down and focus on this again.

Zaid said that if Malaysia wanted to bring in big foreign investments and multinationals, it was important to open up the financial services sector and the legal profession.

"It is not the number of lawyers but the skills that we need to build up this country. The big foreign MNCs and big banks normally want to use lawyers that they feel will suit their needs.

"We cannot keep thinking of our own self-interest. We have to think in terms of the interest of the country," he said, adding that countries like Singapore, Hong Kong, United Arab Emirates and Kuwait had opened up their legal sector and reaped benefits from it through huge investments.

"If we want to continue to forge ahead and develop, then we should open up," adding that joint-ventures with the foreign firms might be one of the approaches.

Zaid said local law firms should not be afraid of the liberalisation because it would not impinge on their business.

He said this was because the liberalisation would be in selected specialised areas like intellectual property, maritime law, structured finance, banking and aviation law.

"We are not saying we are going to open up everything. Most international foreign firms are not interested in the small firms' businesses.

"Local firms business will not be jeopardised in areas where our standards are high," he said, adding that when foreign law firms were operating here this would also open up employment opportunities for local lawyers and for them to gain expertise.

Bar Council president Datuk Ambiga Sreenevasan said they are prepared for foreign firms to come in particularly in corporate transactions.

"It's inevitable. There are no two ways about it," she said, adding that the Bar Council had drafted up rules on the "permitted practice areas" that could be opened up.

The areas are transactions involving international capital market, asset securitisation which goes beyond the (yet to be determined) stipulated amount, transactions governed by foreign laws and those involving the Malaysian International Islamic Financial Centre (MIFC).

She said they were keen in joint-ventures between foreign and local firms in the MIFC but Bank Negara had asked to consider allowing standalone foreign firms and "we are looking at this proposal."

She said the Bar Council was working closely with the International Trade and Industry Minister Tan Sri Muhyiddin Yassin in liberalising the legal sector to deal with trade negotiations like the Free Trade Agreements and the General Agreement on Trade in Services (GATS).

She said the Bar Council also reserved the right to increase the areas to be opened up.

"We are ready. We accept that we must be global," she said, adding that with the MIFC the opening up would be "faster than we think", possibly within a year.

She said the ultimate goal was to strike a balance by meeting the challenges of globalisation while at the same time promoting the interest of the local law firms.