KUALA LUMPUR, Aug 5 ― The Malaysian Bar's resolution to socially ostracise two top judges is relatively insignificant and unnecessary compared to its other moves to protest the duo's allegedly unconstitutional appointments, said two former presidents.
Ragunath Kesavan, the Malaysian Bar president from 2009 to 2011, said such a social “boycott” would also affect other judges other than the actual targets, the Chief Justice and Court of Appeal president.
“My personal view is that it is unnecessary to insist on any form of a social boycott as although the boycott is only in relation to the CJ and PCA, any judge attending any function outside the judiciary would require the permission of the CJ.
“There are larger number of lawyers and judges now and the dissenting views within the judiciary is also welcomed and appreciated. It makes it very difficult for any judge to attend any function organised by the Bar,” he told Malay Mail Online when contacted yesterday.
On Thursday, the Malaysian Bar held an extraordinary general meeting (EGM) where the majority of the 993 lawyers attending passed eight resolutions — including one where the Malaysian Bar resolved to not invite the CJ and PCA to the Malaysian Bar and Bar Council's social events, and to encourage Bar members to similarly not invite or to turn down social invites from the two officials.
Ragunath said this “boycott” would “effectively mean that members of the judiciary may not attend or participate in any event organised by the Bar regardless of whether it is a social or 'official' event” and despite its intended target.
He said official events would include Opening of the Legal Year and perhaps the “meetings” and dialogues between the judiciary and the Bar; while social events would include the annual dinners organised by the Bar Council and state Bars, the International Malaysia Law Conference and the Bench and Bar Games.
“Encouraging lawyers to turn down social invites from the CJ and PCA is not workable and not binding on members,” he said, using the initials for Chief Justice and Court of Appeal president.
He said the Malaysian Bar as “stakeholders in the judicial system” has no choice but to continue engaging with the judiciary on official matters, adding: “We are an essential part, we are part of the judicial system, so we have to engage, whether they reciprocate or not is a different matter”.
As for whether this resolution for social rejection would lead to hostilities, Ragunath indicated that this remains to be seen.
“It depends on how the judiciary reacts to this response to the CJ and PCA, so at the worst it would mean we go back to the situation post-1988, there's no relationship at all.
“And there is going be a legal challenge. What happens if the court decides they are constitutionally within the law to be appointed; then, what do we do?” he asked, referring to the planned lawsuit by the Malaysian Bar to challenge the CJ and PCA’s term extension.
According to Ragunath, the relationship between the Malaysian Bar and the judiciary broke down completely after the country's 1988 judicial crisis, where the then most senior judge Tun Mohd Salleh Abas and five other senior judges were suspended.
“What happened after 1988, there was complete breakdown between the Bar and the judiciary so there was hardly any meetings between the Bench and the Bar. There was no meetings, and what I was told by our senior members was that the Bar had to resort to writing to the judiciary as the judiciary refused to meet the Bar,” he said.
“After Fairuz, the relationship thawed, the relationship slowly started to improve,” he added, referring to the fourth Chief Justice Tun Ahmad Fairuz Abdul Halim who started his tenure 15 years after the crisis occurred.
The Malaysian Bar had in response to the 1998 crisis held an EGM on July 9, 1988 attended by 1,002 members, where five resolutions were passed.
As a result of the 1988 resolutions, the Malaysian Law Conference traditionally closed by the head of the judiciary was cancelled, while the Malaysia/Singapore Bench and Bar Games was also cancelled. No judges were invited to a seminar on the independence of judiciary that year which was co-organised by the three legal professional bodies of Bar Council, the Sabah Law Association and the Advocates Association of Sarawak.
The Bar Council had then deliberated on whether lawyers should be directed not to appear before Tun Abdul Hamid Omar — whose actions and replacement of Mohd Salleh was disputed — in court, but eventually decided that such boycott of his court would not be “in the interest of the administration of justice”.
Datuk Mah Weng Kwai, who was Malaysian Bar president from 2001 to 2003, said the resolution to discourage lawyers' interaction with the top two judges was less important than the seven other resolutions that were also passed on Thursday.
“Significantly, I note there was no resolution urging members of the Bar not to appear as counsel in Court before the Chief Justice and President of Court of Appeal, although there was a resolution passed to the effect that the appointments of the Chief Justice and President of Court of Appeal after they have reached the age of 66.5 is unconstitutional, null and void,” said Mah, who is also a retired Court of Appeal judge.
“I am of the view that as members of the Bar are not urged not to appear before the Chief Justice and President of Court of Appeal in Court as counsel in their professional capacity, the resolution urging members not to interact socially with the Chief Justice and President of Court of Appeal is of lesser importance especially since it has been acknowledged by the Bar that the Bar does not question the abilities, capabilities, or suitability of the current Chief Justice and President of Court of Appeal,” he told Malay Mail Online when contacted.
When asked about the hostile relationship between the Bar and the judiciary in the aftermath of the 1988 judicial crisis, Mah said it went on for a long time until the retirement of Tun Abdul Hamid Omar — who was a Lord President and subsequently Malaysia's first Chief Justice.
“The so-called boycott of Tun Hamid as CJ went on until he retired. I think the Bar resumed good relations with the Bench sometime after the retirement of Tun Hamid as CJ,” he said.
Malaysian Bar president George Varughese said the resolution urging against the extending or acceptance of social invites was only in respect of the Chief Justice and Court of Appeal president.
“There should not be any hostility as the Bar would still engage with and maintain a professional relationship with the judiciary,” he said when contacted by Malay Mail Online yesterday, having already stressed previously that there was nothing personal against the top two judges and that the Bar would continue engaging with the judges on official matters.
When asked why there was no resolution raised at the EGM for lawyers not to appear before the CJ and PCA, George explained that this was “in order not to jeopardise the interests of the litigants/ clients”.
George also confirmed that there was no need for a resolution to not recognise the duo, noting that: “There are already resolutions which clearly states that their appointments are unconstitutional and void and a further resolution wherein the Bar would no longer have confidence in them after their respective retirement ages.”
The Malaysian Bar's EGM is in response to the allegedly unconstitutional manner in which Tan Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin's tenure as Chief Justice of the Federal Court and Court of Appeal President were to be extended beyond their initial scheduled retirement on Thursday and this September 27.
The Prime Minister's Office had on July 7 announced that Md Raus and Zulkefli would continue in the same positions for another three years from August 4 and for another two years from September 28 respectively. Critics contend that this is beyond the Federal Constitution's age limit of 66 years and six months for them.