Must foreign lawyers like English barrister Cherie Blair fulfill all the requirements - which include the passing of the Bahasa Malaysia (BM) qualifying examination - set in the Legal Profession Act (LPA) 1978 before being allowed to appear before Malaysian Courts?

This was the question raised by a five-member panel of judges hearing the appeal of Blair against a Kuala Lumpur High Court decision barring her from appearing before the Federal Court to represent construction company Fawziah Holdings.

Chief Justice Ahmad Fairuz Sheikh Ab Halim, who headed the panel, told parties to further submit whether it should revise the current precedent which held that foreign lawyers need not pass the language qualifying test in order to appear before the Malaysian courts.

"We may not be holding the same position as we had in that case. However, we are not saying that we would revisit the case [...] so that is what you (parties in the appeal) need to address us on," said Ahmad Fairuz before adjourning the hearing to tomorrow.

On June 6, High Court Judge Wan Afrah Wan Ibrahim ruled that Blair - who is known professionally as Cherie Booth - had failed to prove that she has the special qualifications and experience not available among local lawyers as required under Section 18 of the LPA.

It was also held that there was also nothing to show that she is an expert of judicial bias, the issue which she is to argue on behalf of Fawziah Holdings who faces toll concessionaire Metramac Holdings Sdn Bhd in an appeal involving a RM65 million judgment sum.

The court will only hear Metramac's appeal after they decide on Blair's appeal. It is also scheduled to hear applications by former finance minister Daim Zainuddin and prominent businessman Abdul Halim Saad to expunge all references made in relation to them in the written judgment of the Appeals Court.

Court of Appeal judge Gopal Sri Ram, had in his judgment, stated that Halim and his business partner Anuar Othman had siphoned off RM32.5 million from Metramac, the owner and operator of the East-West Expressway and the Sungai Besi Expressway, and that they had enjoyed the patronage of Daim.

Blair's seating arrangement

At the outset of today's proceeding, Blair's lead counsel Dr Cyrus Das asked the court whether Blair would be allowed to sit with other officers of the court to observe the hearing.

Ahmad Fairuz then asked opposing parties - the Attorney-General's chambers, the Bar Council and the Kuala Lumpur Bar Committee - whether they would object to which all parties replied in the negative.

This led one of the panel, Abdul Hamid Mohammad, to ask Das: "Don't you think it will pose some difficulties if she were to sit with the members of the Bar? We don't want to be seen as bias as there is already talk about this case. I am surprised there is no objection from the Bar Council because the seats are for members of the Bar."

Ahmad Fairuz then pointed out that although Blair is a senior barrister in the United Kingdom, she was not "an advocate and solicitor of the Malaysian Bar yet".

Blair then remained seated at the public gallery, next to her client Fawziah Ibrahim (pix) under the watchful eye of several officers from Scotland Yard.

In his argument, Das argued that Blair was a fit and qualified counsel to argue the issue of judicial bias which Metramac has classified to be the most important question in the appeal.

He said that Wan Afrah erred in her view that Blair must prove herself to be an expert in Malaysian jurisprudence in the particular issue of judicial bias. He said it is enough for Blair to prove that she is an expert in the field of public and administration law which covers the issue of judicial bias.

"It would be an impossible hurdle for any foreigner to clear if they are to prove that they are an expert on a particular issue. One cannot be an expert on a particular issue but one can be an expert in a particular field," he said.

Das also argued that Wan Afrah had erred in her finding when she gave too much prominence to the objections made by Fawziah's opponents - Metramac, Daim and Abdul Halim - in the appeal.

"The law provides that only institutional bodies - the AG's Chambers, the Bar Council and KL Bar Committee - can object. The other parties can only give their views which need not be considered by the court in making their deliberations," he said.

Irritated CJ

Today's proceedings also saw counsel acting for the Bar Council being ticked off by the chief justice who criticised his lack of commitment in expressing objections.

Lawyer George Varghese had submitted that although Blair was an eminent QC, it did not mean that she was necessarily qualified to appear for the case

Varghese argued that she had failed to prove that she possessed a specialisation that is rare among Malaysian lawyers whom he claimed were competent to argue on the issue of judicial bias. At this point, Ahmad Fairuz asked whether the Bar had filed any affidavits to support this contention.

Varghese replied that there was no requirement for them to file any affidavits stating that the Bar's notice of objection against Blair's application clearly stated its grounds of objection.

The judge then asked how did the Bar conclude that the local lawyers were competent and have the experience to argue on the issue.

"Previous cases showed that the issue had been argued by Malaysian lawyers," replied Varghese.

When asked whether the Bar had provided a list of cases where judicial bias had been argued by local counsel, the lawyer said no.

This irked Ahmad Fairuz who said: "How can you assist us on this bias issue? If you are serious in objecting to the application - if I can use the word serious here - I expect more from the Bar Council. What type of assistance is this?"

When Varghese explained that there was no time to prepare a comprehensive submission, the chief justice told him that he could have asked for more time in the interest of justice.