JULY 12 — The Young Professionals make reference to the statement by the latest press release of the President of the Malaysian Bar, Steven Thiru, issued on July 11, 2016, titled “Presumption of Innocence is the Cornerstone of the Criminal Justice System and Must be Respected,” It is gratifying to note that after days of maintaining a deafening silence on the issue of YB Lim Guan Eng’s arrest last 28 June on corruption charges, it has finally issued a statement thereon. The statement is sure to be defended by its proponents as being issued pursuant to responsibility of the Malaysian Bar to uphold the cause of justice uninfluenced by fear or favour, pursuant to paragraph 42(1)(a) of the Legal Profession Act 1976.
But does the statement of the Bar reflect this ideal? Alas, it is our considered opinion it does not. YP notes that the Malaysian Bar had issued a statement on July 8, 2015 calling for the Prime Minister, YAB Datuk Seri Najib Razak to take a leave of absence pending the outcome of the investigation into the deposit of unknown funds into the Prime Minister’s bank account. This statement, it is further observed, was made unequivocally and without any reservations, with the Bar taking the view that such a move was “clearly necessary” to dispel any perception of interference or influence.
While a subsequent statement made by the Bar Council indicates that the Bar has seemingly kept to this stand in respect of the Penang Chief Minister during a subsequent investigation into the latter’s alleged purchase of property below market price, this later press release dated March 22, 2016 reported by the Malay Mail Online (and not by the Malaysian Bar website, as is usually the case) qualifies this call by adding that “there is no strict legal requirement to do so”, “it all depends on the severity of the allegations” and “whether the public official under investigation can influence or be perceived as being in a position to interfere with the investigation,” all of which were absent when its call in respect of the Prime Minister was first made.
Clearly different standards are being applied by the Malaysian Bar in respect of two public officials, depending on which side of the political divide they are from i.e. whether the Barisan Nasional or Pakatan Harapan. While the Prime Minister must immediately take a leave of absence without delay, the Penang Chief Minister enjoys more latitude from the Bar as to whether he should do so or otherwise.
But the latest press release by the Bar shows clear favouritism on its part. The Bar Council has backtracked on its earlier call that the Chief Minister should take a leave of absence on the basis that the investigations into him are complete and thus “there should no longer be any possibility of interference by the investigation,”
Any reasonable man would know this to be false. The risks that evidence may be tampered with as a result of influence or interference do not cease upon completion of investigations, but continue well into the prosecution stage until and unless a conviction is made based on all the best available evidence made known to the relevant court conducting the trial. The Malaysian Bar also has a statutory duty to promote good relations and social intercourse between members and other persons concerned in the administration of law and justice in Malaysia, which includes assisting the courts in all manner possible in the dispensation thereof, which in turn necessarily involves helping to ensure that the best available evidence is at all times made available to them, including in the pending prosecution of the Chief Minister of Penang.
The statement of the Bar Council that it is “premature to decisively conclude” whether Lim Guan Eng should remain in office and that the risk of interference would depend on whether the evidence comprises of formal documents or oral witness evidence is disgraceful, despicable and cannot hold. Even primary school children are able to tell that this is not justice, let alone something within the scope of the Bar to conclude ostensibly in the discharge of its statutory duty. It is, for all intents and purposes, a sham and a farce which stains the good name of the legal profession.
In order to give paragraph 42(1)(a) of the Legal Profession Act its true meaning, the word “uninfluenced” appearing therein must be given full effect, and to this end, there cannot and must not be any perceived, let alone material, differences in standards applied by the Malaysian Bar towards public officials, not even an inch. This is noticeably not upheld in Steven Thiru’s latest press release.
YP is also of the opinion that the Malaysian Bar is similarly in breach of its statutory duty imposed by paragraph 42(1)(l) of the Legal Profession Act by failing to ensure that all potential evidence that may be adduced before the courts are adequately safeguarded from influence and interference.
The Bar Council’s clear failure to abide by the statutory undertakings of the profession indicates that the Malaysian Bar has failed in its duty, and must be reformed. YP notes that the Attorney-General has recently taken moves towards enacting such reforms. YP welcomes this development, and hopes that the same will result in a permanent cession of dual standards being routinely applied towards the Malaysian Bar when it comes to issues affecting Malaysian society, and refocuses the Bar’s attention towards the much neglected welfare of its members.
* Young Professionals (YP) are a group of Malaysian professionals from across the social strata and political spectrum who believe in the supremacy of the Federal Constitution and social contract.
** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail Online.
