KUALA LUMPUR, Dec 5 ― The Bar Council election this year has sparked some concern that the legal body may not be as outspoken about civil liberties after lawyers perceived as conservatives defeated their “liberal” rivals.

Malay Mail spoke to several candidates who failed to get into the Bar Council for their views on the polls results over the weekend, with some of them believing that more candidates considered to hold “conservative” views were voted in.

Lawyer Honey Tan said the moderates did not succeed as well as the conservatives in the latest Bar Council elections.

Tan believed that the Bar Council will continue to speak out on civil and political rights, but said she was uncertain what will be their stance on social and cultural rights where most tough issues on non-discrimination lies.

“Until there is another change, the Bar Council has already moved into an era that will not be as outspoken and fearless on issues of equality and non-discrimination when it comes to certain human rights issues such as freedom of religion, women rights, rights of the girl-child, and sexual orientation and gender identity rights.

“The fact that we do not have a Women’s Rights Committee speaks volumes about where we stand now. We have a Child Rights Committee and Orang Asli Committee, so why no Women’s Rights Committee?” she told Malay Mail when contacted, adding that a Bar Council that practices human rights principles was required.

“Although I am concerned that a certain faction is now in control of the Bar Council, I am confident many members of the Malaysian Bar will still speak out without fear or favour,” she said.

On December 1, the Bar Council election results were unveiled. The 12 voted in were Hendon Mohamed, Datuk Sulaiman Abdullah, Roger Chan, Karen Cheah, Ravindran Nekoo, Muhammad Rafique Rashid Ali, Mohamad Ezri Abdul Wahab, Andrew Khoo, Lukman Sheriff Alias, Datuk Roger Tan, Salim Bashir Bhaskaran, and Yusfarizal Yussoff.

The newly-elected Bar Council members will only take over from the current Bar Council in March next year. There will be 24 more added into the Bar Council 2019/2020 as state Bar chairs and representatives.

What do the numbers suggest?

Many of those voted in have frequently won previous elections or had long served in the Bar Council, with Hendon and Sulaiman tending to top the list. Lukman and Rafique were voted in for the second time, and Yusfarizal will be joining the Bar Council for the first time. Salim, who was previously a Bar Council member as a state representative or chair, was also voted in directly for the first time.

Lawyer HR Dipendra agreed that candidates seen as liberals or moderates were edged out by the conservative lobby.

Dipendra said that there was some truth that many voted in have been in the Bar Council for many times, noting as examples that Hendon and Sulaiman had been past presidents whose names are easily recognised and highly regarded by members. 

“But what is interesting is the extra number of ballot papers that came back, it is significantly larger than those over the course of last five years. I think what people are concerned, (that it appears based on the two posters I have seen) that 'conservatives' have got in over 'liberals', although I think it's unfair to label and the labels can be unnecessary, but that's how many see it,” he told Malay Mail when contacted.

He noted that the ballot papers cast in the past five years' Bar Council elections ranged between 3,300 to 3,900 ballot papers, but had this year jumped to around 5,500 votes.

While acknowledging that the Malaysian Bar membership had also grown over the years to this year's 19,001 members, Dipendra said this was “not a significant factor” due to how the percentage of voting shot up from an average of 18-22 per cent over the past five years to 29 per cent this year.

“Clearly, there were extra votes that came in. While that is good for democracy at the Bar, the bigger question is what prompted this surge in votes?  From my social media feeds, I gather that there was a lot of race baiting going on. Why this matters in Bar elections is only best known to some candidates.

“I believe some of the candidates got in purely on these reasons. Some of the campaigning was targeted, dishonest and unbecoming,” he said, noting this suggests that the conservative lobby had been spooked.

Lawyer Nizam Bashir also looked into the numbers, noting that more Malays and Muslims have been making it into the Bar Council over the past four elections. Based on his tally, the number of Malay or Muslim candidates increased from four in 2016/2017 to seven out of 12 in the latest election.

Nizam also referred to the numbers on the voter turnout, with 20.54 per cent or 3,452 of 16,806 voters in 2016/2017, and 22.64 per cent (3,939 of 17,394) in 2017/2018, and 18.20 per cent (3,279 of 18,007) in 2018/2019 and 29 per cent (5,512 of 19,001) voting in the latest edition.

While saying that there was a huge increase in the number of votes for the 2019/2020 Bar Council elections, Nizam noted that this “only tells half the story” and highlighted the effective role played by campaign materials including speeches and video messages on social media by some candidates.

“Prior to the present elections, candidates were cast implicitly as conservatives (courtesy of a WhatsApp image circulated widely on a number of WhatsApp groups) and explicitly as progressives (courtesy of some messages on social media)... Simply put, campaigning is now part and parcel of BC elections and candidates who proved to be savvy in this regard made their mark in the 2019/2020 elections,” he told Malay Mail when contacted.

“Averting back to the numbers that voted in the 2019/2020 elections, it appears that there is a marked increase in the number of Malay or Muslim members who voted in this elections. Such a conclusion is inescapable given the huge, i.e. almost 10%, increase in the numbers voting in this elections. This may also, arguably at least, be suggestive of an increase in the number of conservative votes,” he suggested.

The 'rainbow' poster

The Bar Council elections this time was slightly clouded by the presence of two posters that lawyers who spoke to Malay Mail referred to, including a poster with 10 names on it and a poster with a “rainbow” background that was seen as implying that the 12 other candidates listed there support lesbian, gay, bisexual and transgender (LGBT) rights.

Eight of the 10 names on the first poster were voted in, while only three of those on the “rainbow” poster were voted in.

The ‘rainbow’ poster was allegedly spotted online on November 27 (Tuesday), just days before voting through postal ballots closed (Friday).

Lawyer Ravinder Singh Dhalliwal, who supports equal constitutional rights for the LGBT community and was mentioned in the poster, called the campaign “distasteful” as he asserted that the poster hurt the chances of those named there.

“Knowing that this is a somewhat sensitive topic in Malaysia and that for certain members, due to their religious obligations, they may feel unable support the names on the list because of our apparent stand on LGBT rights,” he said in a Facebook post on November 28.

Lawyer Farez Jinnah, who was only made aware of the ‘rainbow’ poster that included his name, said he was told that the individual who allegedly posted it had removed it.

Farez said he had reported the poster to both Facebook and the Bar Council secretariat on the same day and left it to the relevant parties to probe the creation and circulation of the poster.

He expressed disappointment that such a poster had made its rounds amid the lack of Bar Council guidelines on such election posters and without consent obtained by those included in the poster.

He believed that such posters are a breach of the Publicity Rules governing lawyers, adding: “It is also entirely possible that both said posters were attempts by unauthorised persons to influence the outcome of the elections.  As such, the Bar Council should investigate every aspect of the posters attributed to the newly elected members in the interests of justice and accountability.”

“On the inference that I was one of those that support LGBT rights, as an advocate and solicitor we have a duty to uphold the rights of all individuals irrespective of gender, ethnicity or belief.  It may have affected or altered the choices of members who are not aligned with the objects of the Bar, but our overriding duty is to the all members of the Bar and the public,” he told Malay Mail when contacted.

Dipendra, who also did not gave his permission to be included in the “rainbow” poster, said he did not believe in having any list as he felt candidates should be judged on their own ability to serve Malaysian Bar members while upholding its time-honoured traditions and ideals. 

“I think the rainbow poster was a cheap shot. I think it helped the narrative perpetuated by one group against the rest,” he said.

“I wish they chose based on ability and actual service to Bar, instead of political leanings or whether they were liberals. Those were unfair labelling given to some members, me included, who have put in time and energy for the betterment of the Malaysian bar as a whole,” he said.

Datuk Seri Jahaberdeen Mohamed Yunoos said he was “aghast” that he was portrayed as an LGBT supporter and as part of a group of candidates that are supposedly liberal, pointing out that such campaigning methods typically used by political parties do not augur well for the Bar Council.

“It doesn't matter whether that cost votes or not, what matters to me ― such a tactic should not even enter Bar Council...We shouldn't fall into that trap,” he said, but added that he had forgiven those involved in the “smear campaign” and said the Bar Council could consider introducing rules on this if it carries out a post-mortem and determined the alleged smear campaign to be true.

The 'rainbow' poster with names blanked out for those whose consent for this news report had yet to be obtained. ― Picture taken from social media
The 'rainbow' poster with names blanked out for those whose consent for this news report had yet to be obtained. ― Picture taken from social media

Don't prejudge

Candidates that Malay Mail spoke to also cautioned against prematurely judging a Bar Council line-up that is perceived to have more “conservatives” as being less willing or able to uphold matters such as human rights.

Commenting on the alleged conservative bloc that was voted in, Farez said the newly-elected members should be given a chance to prove themselves.

“It is not so much if they are conservative or otherwise, but whether they will uphold the interests of its members and public interest, without fear or favour. In a sense, the proof is in the pudding,” he said.

“It's one thing to have personal views for example where they are against international treaty obligations, but what they later say in press releases will be what people hold them accountable for. We can't pre-empt the situation,” he said.

He highlighted that being in the Bar Council is also a position that involves administrative and governing work such as deciding how rules are enforced on the legal profession's members, saying: “It's not a popularity contest, it's about members deciding who can do the work and who can help with deciding on policy matters.”

He noted however that Bar Council candidates that were alleged to have been liberal and voted out were well-known for their work within the Bar Council and as lawyers in defending minority rights, as well as their advocacy on “human rights, disability, monitories, Orang Asli, constitutional, young lawyers and working conditions issues”. 

Farez expressed hope that the newly-elected Bar Council members remember they do not exclusively act for any one group or class of persons, but for all Malaysians.

Dipendra said there is a “worry” about the stance that the Malaysian Bar might take under the new Bar Council line-up, but felt it was “too early to judge and assume what these so-called ‘conservatives’ are going to do” and hoped that the new leadership would continue to uphold issues such as human rights regardless of its composition.

“I sincerely hope so, because it is fundamental that the Bar speaks and acts the sentinel and guardian of the fundamental rights of the individual regardless of their persuasion.  The Bar cannot take any sides and must not cater to a particular group, faction or race. It cannot be used to personally benefit. In essence, the Bar must be all-inclusive. The Bar has build a lot of good will over the years and this must be safeguarded and not compromised,” he said.

Pro-moderation lawyer-activist Jahaberdeen said the perception this time around is that there seems to be a contest between the liberals and conservatives, but said this should not be the case as it would be sad when lawyers on the Bar Council are boxed into such labels.

“They should be united by the motivation to protect the Constitution, equality before the law and justice. My hope is that the BC continues it’s tradition of upholding rule of law and the constitution. It has always been outspoken against injustice regardless of ethnicity, religion or partisan consideration,” he said.

“So I'm hoping whatever may have happened in the elections, the elected Bar Council members will close ranks and go back to upholding rule of law and justice, upholding the Constitution and welfare of lawyers and not go back to their vested interests.

“Even though the Bar Council is operating in a political arena, it must be apolitical as far as possible. We don't want the Bar Council to be politicised,” he said.

Despite having some reservations, Nizam said he would not necessarily conclude that the Malaysian Bar would have a weaker stance in upholding human rights or fundamental liberties or minority rights or the rule of law “just because there are more Malay/Muslim Bar Council members”.

“However, proof is in the pudding and I will be looking very intently at the stance of the present Bar Council in matters such as: public interest litigation; issues involving human rights; and minority rights.

“I fervently hope that the office bearers will be able to navigate between what constitutes their faith and political beliefs on a personal level and how that should translate to actions on a national level,” he said.

Ravindran, the current Malaysian Bar treasurer who was again voted in, said it was difficult to say which candidate was liberal or conservative, but also noted that the Bar Council's decisions will be based on what Malaysian Bar members decide.

“Regardless of candidates, at the end of the day, they are answerable to the Malaysian Bar. So whatever is decided by (Malaysian Bar) members at AGM, that's what council members have to carry out.

“Some of the policy issues are discussed at AGM. That decision will prevail and Bar Council has to adhere to the decision made by the larger population of Malaysian Bar,” he told Malay Mail when contacted.

“The Bar has always defended the Constitution, so as long as it's time for us to defend the Constitution, we will defend the Constitution. We will speak out without fear or favour, that has always been our motto,” he added.

“Whatever the composition, we have to uphold the Constitution and defend the Constitution.”