Speech by Ragunath Kesavan, Chairman of the Bar Council, at the Opening of the Legal Year 2011 (15 Jan 2011)

In PP v Anwar Ibrahim, the Federal Court rolled back statutory amendments introduced in Section 51A of the Criminal Procedure Code to augment the rights of accused persons.  By enacting this provision that imposes a statutory duty on the prosecution to provide documents to the defence prior to the commencement of trial, Parliament made it plain its intention to level the playing field between the prosecution and the defence. In a regrettably regressive decision, the Federal Court refused to allow the defence access to documents other than the usual basic documents pre-dating the amendments. The full and timely disclosure of documents and statements would surely assist in a speedy disposal of the trial. More crucially, courts must exercise their discretion in favour of enhancing an accused person’s right to a fair trial, and increasing transparency and fairness in the country’s criminal justice system. Non production of documents and information merely gives rise to the perception, in the public mind, of a cover up and will not assist in enhancing public confidence in the criminal justice system. ** Speech by Ragunath Kesavan, Chairman of the Bar Council, at the Opening of the Legal Year 2011 (15 Jan 2011)

Saturday, 15 January 2011 08:15pm

[Salutations] Yang Amat Arif, saya dengan rendah diri memohom izin meneruskan hujah saya dalam Bahasa Inggeris. My Lord, I am honoured to speak not only for the Bar Council but also on behalf of the Sabah Law Association and the Advocates Association of Sarawak, who are represented here today with the presence of their respective Presidents, Datuk John Sikayun and Khairil Azmi bin Mohd Hasbie. It gives me great pleasure to be able to address this distinguished gathering on the occasion of the opening of the 2011 Malaysian legal year. A year on from the historic first ceremony in January 2010, we cannot rest on our laurels but must continually strive to improve the administration of justice and the rule of law in Malaysia.  We cannot be satisfied with pioneering first steps, but must be sufficiently courageous to extend boundaries.  This may transgress well-worn customs and traditions, and may find displeasure among those with vested interests in preserving the status quo.  However, we cannot be inhibited by such considerations.  If adjustments are required we must be bold and mature enough to stand up for such corrections purely in the interest of justice and fairness. The introduction of court mandated mediation, court recording transcription services, structured and uniform case management directions and the introduction of the “New Civil and Commercial” courts have increased the efficiency of our judiciary.  The changes brought about by Your Lordship have, by and large, been welcomed by the legal fraternity.   We were plagued with problems of public distrust and disdain of the judiciary for reasons of judicial indiscipline, alleged corruption even at the highest level of the judiciary, judge fixing, an administration system that had not been revamped for decades, inconsistent case management styles and directives issued at the whims and fancies of each judicial officer.   The appointment of three inept and unacceptable chief justices post Tun Salleh Abas led to the near complete breakdown and destruction of our judiciary. We can stand tall and reflect that we had firmly and consistently spoken out and acted against the massive decline in judicial independence. Your Lordship had the most arduous task of instilling discipline, order and direction in the judicial system. However, we caution that reform including the pace of such reform, must always be in tandem with the needs of all stakeholders, including the capacity of the judges, lawyers and court system.   Speed alone cannot be the sole and overriding factor, for there must be no miscarriage of justice in the prompt completion of cases. In the matter of postponements and adjournment of cases, it is a critical part of the individual independence of judicial officers that they have sole control of cases before them, including the discretion whether or not to grant an adjournment because they must be guided by the need to do “substantial justice” between the parties. The criminal justice system requires a much more detailed and tempered approach. The problems faced there are considerably different from those of the civil courts and expediting hearings may not entirely be in the public interest if this results in more instances of acquittals, or an accused is denied the right to a proper and full defence. The paramount objective of the administration of justice must be to achieve qualitative justice in every instance.  An excellent justice system requires a combination of a fair conduct of cases, their prompt disposal and well reasoned decisions so as to ensure that justice is done and seen to be done.         As we consider the challenges that lie ahead, we would do well to reflect on the following words, taken from Chapter VI of Machiavelli’s “The Prince”: “. . . there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things, because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.” The reforms that have been implemented have resulted in a significant improvement in the quality of the administration of justice.  We welcome such changes even though disagreements are bound to exist from time to time.  We do not always agree or achieve consensus on issues but we have a good working relationship with the Judiciary and the Attorney General’s Chambers upon which we can build, and we look to continued constructive dialogue and discussion with both parties. Judicial temperament My Lord, The life of a Judge requires independence of thinking and fearlessness of character.  It is indeed a high challenge and a very lonely pursuit.  A judge must be independent, impartial, conduct him or herself with integrity, act with propriety and must at all times ensure equality of treatment to all before the Courts. We would do well to recall the one of the guidelines issued to AbuMusa al-Ashari, the then-Governor of the Iraqi port city of Basra, by Umar bin al-Khattab, the second Khalifa of Islam (13-23AH) (634-644 CE).  The thirdh guideline reads as follows: Treat the people equally in your court and give them equal attention, so that the noble shall not aspire to your partiality, nor the humble despair of your justice. Judicial boldness My Lord, Our judges in taking their oath of office set out in paragraph 1 of the Sixth Schedule of the Federal Constitution undertake to .......“faithfully discharge [their] judicial duties in that office to the best of their ability, they will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution. The judiciary must boldly uphold this duty to adjudicate any dispute before it guided solely by the Federal Constitution.  In all such deliberations, the underlying principles of the rule of law must remain fundamental and omnipotent. In many jurisdictions, it is the Courts that lead in expanding the rights of individuals and curbing the excesses of the executive.  In 1995, the South African Constitutional Court in the celebrated case of The State v T.Makwanye and M.Mchunu held that the death penalty breached the “right of life” provision contained in the Section 9 of the South African Constitution.   Significantly, the Court did not abdicate its constitutional role and leave it to the legislature to abolish the death penalty. An independent judiciary is an indispensable element of a working democracy as it is not beholden to constituents who elect it into office.  There are no shackles of loyalty to any particular group and therefore the Judiciary can and must fulfil its primary duty of upholding the Federal Constitution.  Judges must rule on the basis of the law within the context of the Federal Constitution and not be influenced by public opinion and they must be indifferent to pressures of the times. My Lord, We have our own challenges, Shamala Sathiyaseelan v Dr. Jeyaganesh C. Mogarajah was a recent matter before the Federal Court, involving essentially conflict of laws between the separate jurisdictions of Syariah and civil laws, in respect of the custody and guardianship of children arising out of the conversion of one spouse to Islam. This matter presented the Court with a clear occasion to resolve fundamental questions that affect public interest. The Federal Court refused to decide on the matter, on the basis that Shamala, by leaving the jurisdiction with her children, was in contempt of an earlier High Court order giving the father the right of access to the children. The Federal Court abdicated its role as the ultimate arbiter in this dispute.  Politicians have dithered and wavered in looking for a solution, pandering to the various interest groups.  The Federal Court missed this opportunity to lead the way and set down the law in accordance with the Federal Constitution. The Judiciary ought to have stepped in to fill the legal lacuna. The Court must fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are. In PP v Anwar Ibrahim, the Federal Court rolled back statutory amendments introduced in Section 51A of the Criminal Procedure Code to augment the rights of accused persons.  By enacting this provision that imposes a statutory duty on the prosecution to provide documents to the defence prior to the commencement of trial, Parliament made it plain its intention to level the playing field between the prosecution and the defence. In a regrettably regressive decision, the Federal Court refused to allow the defence access to documents other than the usual basic documents pre-dating the amendments. The full and timely disclosure of documents and statements would surely assist in a speedy disposal of the trial. More crucially, courts must exercise their discretion in favour of enhancing an accused person’s right to a fair trial, and increasing transparency and fairness in the country’s criminal justice system. Non production of documents and information merely gives rise to the perception, in the public mind, of a cover up and will not assist in enhancing public confidence in the criminal justice system. Access to justice My Lord, Access to justice remains a central priority for the Bar Council.  Currently, too many persons are unrepresented in criminal trials, a situation that is very troubling.  With the coming into force of the amendments to the Criminal Procedure Code formalising plea bargain and introduction of pre-trial conferences, it will be critical to ensure that legal representation is provided to all accused persons. Constitutional guarantees of the right to legal representation are meaningless if one is unable to access legal representation because of insufficient means.  All developed nations have in place some form of a comprehensive legal aid structure for those who cannot afford legal services.  This has not been quite the case in Malaysia.  We are proud to be one of the few law associations in the world that runs a fairly comprehensive legal aid scheme funded solely by a levy imposed on all our members.  However, in order to be effective, any legal aid system that is introduced must be sustainable, and far more comprehensive than the current Bar Council legal aid scheme has the means to be. We are therefore heartened by the establishment of a national legal aid foundation, to be known as Yayasan Bantuan Guaman Kebangsaan, a collaborative effort involving the Government, the Malaysian Bar, and the private sector.  The Foundation will be an independent body that will fund the provision of legal aid, enhance services for lawyers to represent those needing legal representation, determine the guidelines for the administration of the national legal aid scheme, and initiate and carry out educational programmes designed to promote understanding amongst members of the public of their rights and duties under the laws of Malaysia.  The Foundation will focus on obtaining representation for persons from the point of arrest to court hearings – and those who do work for YBGK will be remunerated. I must place on record our greatest appreciation to the learned Attorney General for his relentless push and the efforts of his officers in setting up the the Foundation. We are also heartened that the Inspector-General of Police, Tan Sri Ismail Omar at a recent dinner he had hosted for the Bar Council emphasised the need for all stakeholders to work together to improve our criminal justice system. The Inspector General had also reiterated that human rights and the rule of law must be an integral part of the criminal justice system. His commitment that the Police will work in tandem with the Foundation is most welcome. Justice for all  It is important to understand and accept that the future of Malaysia must be built on a multi-racial, multi-religious approach of respect and acceptance. Ultimately we have to ask ourselves this question: What kind of country do we want to be?  In order to answer this question, we have to understand the rules and regulations that govern the relationship between the government and the people.  We need to go back to the basics. One of the most important projects the Bar Council had undertaken in the last two years is the “MyConstitution” campaign, where the Constitutional Law Committee of the Bar Council has gone round the country to promote knowledge and understanding of the Federal Constitution.  The aim is to create awareness and to simplify the Constitution for all, and to empower the people to take charge of the Constitution, which is rightfully the peoples’ document. The campaign projects the essence of democracy in which the government, whatever its political composition, is bound by a higher set of rules, embodied in a constitution.  Although democracy is based on the principle of the rule of the majority, at the same time, democracy also requires that the rights of minorities are safeguarded. We affirm the two tenets of the Rukunegara which are relevant here, namely “Keluhuran Perlembagaan” or “the Supremacy of the Constitution” and “Kedaulatan Undang-Undang” or “Upholding the Rule of Law”. The way forward is to assure the people that there is a place for everyone in Malaysia regardless of race or religion. This assurance must be reiterated not only by the government of the day but by all of us. We must believe and must commit and unite in our efforts to build a nation that progresses on diversity. We have consistently, over the years, reiterated that our objective is the betterment of Malaysia.  We want to see a Malaysia coming together in unity of purpose, through upholding the rule of law and the Federal Constitution. I stand here to reaffirm and reiterate that we shall proceed to uphold the Rule of Law without fear or favour. We accept and understand that there is so much more to be done and we strive to remain independent and engage and interact with any and all groups, with the objective of building a stronger and better Malaysia for all. Conclusion My Lord As we collectively mark the first anniversary of the Opening of the Legal Year on a Federal level, I must take this opportunity to record our appreciation for Your Lordship’s openness, humility and tireless effort to achieve change which has resulted in a renewed vigour in the judiciary. Your Lordship has always been approachable and sympathetic to the issues we have raised, and Your Lordship has always been open to criticism. We welcome this new judicial environment, and want this to continue, as it is vital that all of us work together for a common objective, that of strengthening and enhancing our judicial system, towards a better Malaysia. We are committed to supporting this process, and look forward to opportunities for us to contribute in this regard. We shall continue to uphold the rule of law and to act in the best interest of Malaysia. It remains for me on behalf of the Bar Council, the Advocates Association of Sarawak and the Sabah Law Association to wish you good health and every happiness in the New Year.