It is curious that some lawyers at the Bar continue to entertain a straight-jacket attitude about junior lawyers as unsuited for positions at the Bar Council.

Junior lawyers are those with less than seven years practice at the Bar. Junior lawyers are not necessary junior in terms of age, but are considered junior in relation to the number of years the lawyer is licensed to practice.

Lawyers are qualified to practice through the issuance by the Bar of a 'sijil annual' (annual certificate) upon among others the payment of prescribed fees. A practising certificate is subsequently issued by the High Court on the strength of the 'sijil annual' issued by the Bar.

The Bar regulates the recruitment of lawyers entering the profession, the discipline of its members and the conduct of its business. These are regulated under an Act of Parliament called the Legal Profession Act, 1976 (LPA).

The LPA discriminates junior lawyers, members of parliament, state assembly representatives and office bearers of trade unions and political parties from holding office in the Bar Council, any state Bar committee and any sub-committee of the Bar Council and state Bar committee.

Offending section

The offending section is contained in section 46A of the LPA, an amendment which Parliament saw fit to impose on the legal profession in January 1978.

The Young Lawyers' Committee of the state Bar committee of Kuala Lumpur (KL state Bar), which is the largest state bar in the country, has taken the lead this year to campaign for the repeal of section 46A thus implementing the two Bar resolutions passed in 1978 and 2002.

The second Bar resolution in 2002, 24 years after1978, was pushed by a majority of junior lawyers, who felt that council and a selection of senior lawyers had been forgetful of the continuing discrimination at the Bar.

The year before, some 75 lawyers signed a requisition on Sept 13, 2001 pressing for an extraordinary general meeting (EGM) in relation to the Bar Council's stand on section 46A.

Council had opposed lawyer, R Sivarasa's application for a declaration in the High Court to impugn the offending section which disqualifies him from holding office in the council as he is an office bearer with Parti Keadilan Rakyat.

The council's stand was puzzling in view of the Bar resolution of 1978 which protested the amendments to the LPA and resolved that these were efforts to muzzle the Bar.

Many of the 75 requisitioners were prime movers of the KL state Bar's "lawyers for urgent arrest" - a project born out of the need to represent hundreds of reformasi demonstrators following the sacking of jailed ex-deputy premier Anwar Ibrahim in September1998.

Younger lawyers, as scores of Malaysians, were gripped by the events at the end of 1998 and were at the helm of protests at the Bar when one of Anwar's lawyers, Zainur Zakaria, was cited for contempt of court.

The leadership of the Bar came under scrutiny of junior lawyers when they seemed too slow in responding to these events, even when Zainur's citation was related to his duty as a lawyer to his client.

Requisitioners and council representatives met over the requisition. The EGM was called off and in the Bar 2002 annual general meeting (AGM), a resolution was tabled to repeal the 1978 amendments to the LPA, including section 46A.

It might be emphasised that the two Bar resolutions obligate the Bar to commit to the repeal of the offending law.

Essential for independence

The campaign for the repeal of section 46 is important for the independence of the Bar in upholding the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.

As an important reminder, the imposition of section 46A on lawyers in 1978 was prompted by protests at the Bar over the Essential (Security Cases) (Amendment) Regulations, 1975 or Escar.

Escar allows procedures contrary to safeguards contained in the Criminal Procedure Code. Escar allowed among others, heresay evidence, restrictions on cross-examination of prosecution witnesses and the accused is presumed guilty (as opposed to presumed innocent until proven guilty).

There is simply very little defence lawyers can do for anyone accused under Escar procedures. The Bar lobbied for a change to Escar for two years. These representations fell on deaf years. The final strategy adopted by the Bar was lobbied by younger Bar members (or so the legend goes).

Lawyers proposed as a last resort, amidst very difficult debates at the Bar on right of representation of the accused, not to take cases under Escar. This stand-off against the executive was the October boycott of 1977.

The debate for the passing of section 46A in the Barisan Nasional-majority Parliament took two days on Jan 9 and 10 in 1978 and the offending section became law on Jan 24, 1978.

Other than restrictions to office-holders at the Bar, the1978 amendments to the LPA increased the requirement of quorum at an AGM or EGM to one-fifth of its membership (Section 67) and it gives "supervisory" powers over the Bar to the attorney-general including the admission of foreign lawyers.

The stand-off against the executive has a constitutional dimension which may be lost on new lawyers at the Bar and the public.

As a rule, laws are made by the legislature. Parliament is the federal legislature under the Federal Constitution. Escar is an emergency law.

While the executive (as an exception to the rule) may make emergency law (when a proclamation of emergency is in force), the question arises whether it can do so when Parliament is sitting and conducting business.

It does appear odd even to the ordinary rakyat that we should have two law-making bodies. It offends the principle of separation of powers.

Above the constitution

Escar was passed during the 1969 Emergency proclamation. Parliament sat for business on Feb 20, 1971 and in constitutional theory, the emergency law-making powers of the executive ends on that date. An ill-advised executive made Escar in 1975.

The matter was taken to court; the judiciary being the arm of government empowered to interpret the constitution and to check the excesses of the executive and legislature, the other two arms of government.

The public in 1976 had to contend with a Federal Court decision which allowed the executive to make emergency laws under a proclamation of emergency even when Parliament is sitting.

Sheridan and Groves (1987) viewed that 1976 decision as "allowing the executive, dangling from the constitution by their bootstraps, to hoist themselves above the constitution".

In late 1978 (after the October boycott and the fateful section 46A), the Privy Council (then the country's highest court) had to decide on the same question in another case, Teh Cheng Poh v Public Prosecutor.

Lord Diplock who delivered the decision of the Board of the Privy Council said the executive law-making power ends as soon as Parliament first sits after the proclamation of emergency.

The executive "cannot prolong it, of (its) own volition, by purporting to empower (itself) to go on making written laws, whatever description (it) may apply to them. That would be tantamount to the cabinet lifting itself up by its own bootstraps."

Escar, 1975 was declared void by the highest court in the land.

A Rahim Said (1981) said the Privy Council decision embarrassed the government but provided the Bar with a badly needed impartial opinion on the injustice of Escar, 1975.

The restoration of fundamental principles was short-lived when the executive sponsored a law to Parliament called the Emergency (Essential Powers) Act 1979 which validates all laws and regulations passed under the 1969 proclamation of emergency from the date when Parliament first sat on Feb 20, 1971.

The law was passed by a Barisan Nasional-majority Parliament. Escar was resurrected by an Act of Parliament in 1979.

In addition, the executive pushed constitutional amendments through Parliament in 1983 (No A566) and 1984 (No A584) to tighten the law-making powers of the executive under emergency powers in Article 150 of the federal constitution.

After 46 years of independence, we still have to contend with a Parliament being dominated by the executive (cabinet) under the present electoral system of first-past-the post. There is a reason

for lawyers and the public to be vigilant of the independence of the judiciary as the guardian of freedoms and constitutionalism.

Equality standard

The Bar's attempt to challenge the constitutionality of section 46A as affecting the fundamental right of equality of lawyers was thwarted in 1987 in the Supreme Court decision of the Malaysian Bar v Government of Malaysia.

The Supreme Court applied the "like be treated alike" test in that lawyers over seven years are treated alike in one class and lawyers of less than seven years are treated alike in another class.

The difference between the two classes is not discrimination because of a "rational classification" of like cases being treated alike. This is the equality standard understood since Tussman and tenBroek (1949).

In plain English, it means that not all lawyers are equal. To some, even the plain English is quite Greek, with no offence intended to Greek nationals and Greek-speaking people.

Fortunately for justice, the principle of "like being treated alike" as the measure or standard of equality (popular in the 70s) has been discredited as not being applicable in all situations.

Equality litigation has evolved in several jurisdictions and lawyers might want to revisit this principle in our courts.

Seven years as "legal discrimination" appears arbitrary in any case. The number of years as a licensed lawyer at the Bar should not be a criteria to hold office.

Whether a lawyer is suited for office at the Bar must weigh on several matters, including leadership skills. Junior and younger lawyers are not inexperienced, they are differently experienced as are members of parliament, state assembly representatives and office bearers of trade unions and political parties.

The point all lawyers want to make (not just those who are discriminated from running for office), is that the state should not place a bar on the independence of Bar members to choose who they want among their peers to represent them.

Bar members are still able to weigh "inexperience" as they see it or affiliations to political parties of candidates in choosing their Bar representatives.

Certainly the body of the Bar should be able to insist on transparency of the candidates in disclosing whatever affiliations the candidate has to whatever. The decision must ultimately vest in the Bar.


The writer was privileged to "run with the pack" of junior and young lawyers upon her admission to the Malaysian Bar in 1996.


Notes:

A Rahim Said (1981), The October boycott: Its causes, consequences and implications for legal practice in Malaysia. International Journal of the Sociology of Law, vol 9 383

Joseph Tussman and Jacobs tenBroek, (1949) The equal protection of the laws, 37 Cal L Rev 341

Sheridan and Groves (1987), The Constitution of Malaysia, Malayan Law Journal, Singapore.