On Jan 9, 1978, the newly appointed Law Minister and Attorney-General Hamzah Abu Samah laid the Legal Profession (Amendment) Bill 1977, before the House of Representatives for its second reading. The country's third Prime Minister, Tun Hussein Onn, attended the session.

The amendments which became law on Jan 24, 1978 were multi-pronged. It restricted the Bar's autonomy in the conduct of its affairs by placing restrictions on office bearers in the Bar Council, the State Bar Committee and any committee thereof.

The amendments increased the quorum to any general meeting of the Bar and it allows the attorney-general several "supervisory powers" over lawyers including the admission of foreign lawyers into the country.

As reported in Hansard, the law minister began by speaking about increased communist activities in the country. He cited the bombing of the war memorial and a police division in Kuala Lumpur as reasons for the executive to pass the Essential (Security Cases) (Amendment) Regulations 1975, popularly known as Escar, under a proclamation of emergency.

From his address it would appear that the Malaysian Bar's opposition to Escar became the government's raison d'etre for the infamous amendments to the Legal Profession Act, 1976 (the LPA). The Bar, in what appears to be its final stand on the matter, passed a resolution in Oct 1977 to boycott Escar cases.

Inexperienced lawyers

According to the law minister, "Kerajaan bertanggungjawab kepada rakyat jelata yang memilihnya bukan kepada sebilangan kecil dari satu-satu Persatuanpeguam-peguam itu lupa iaitu dengan sebab adanya peraturan-peraturan baru sejak 1975, keganasan-kegansan sudah jatuh berkurang."

The minister concluded that the boycott was initiated by inexperienced lawyers. He proposed that henceforth lawyers of seven years are eligible for office "supaya ahli-ahli Bar Council atau Bar Committee ..terdiri daripada peguam-peguam yang ..cukup pengalaman dan matang dan ada perasaan tanggungjawab".

The minister also castigated the Bar for allowing politically active lawyers to influence the October emergency general meeting: "dengan galakan dan desakan dari sebilangan peguam-peguam yang berbetulan pula ahli-ahli politik yang aktif, telah dapat mempengaruhi sebilangan peguam-peguam lain untuk mengadakan mesyuarat khas Majils Peguam ..meluluskan satu ketetapan."

The law minister and attorney-general was not precise in his use of the term "ahli-ahli politik yang aktif".

To be political is to be involved in articulating and defending interests. One need not be a professional politician to be political. All of us who are interested in articulating and defending interests or concerns are political beings.

"Mr Opposition" Dr Tan Chee Khoon (Kepong) insisted that the Barisan Nasional government had over-reacted in proposing the amendments. The Bar's political opposition to Escar reflected the views of sections of the people. (emphasis is the writer's).

The Bar had, previous to the boycott, proposed changes to Escar and made representations to the former law minister and AG (Hamzah Abu Samah's predecessor) to no avail. This constructive engagement between the Bar and the government covered a period of two years.

A passage which reflected the sentiment of that time reads, "Bar Council tiada mencari satu confrontation dengan kerajaan, tetapi nampaknya kerajaan berkehendak menunjukkan "mailed fist" kepada peguam-peguam.sekiranya Dewan meluluskan pindaan itu, kita mesti sedar kuasa untuk mengawal (control) legal profesion telah diletakkan di dalam tangan Peguam Negara."

The fact of putting the Bar under the control of the AG would, according to Tan Chee Khoon, place too much power in the hands of one person, the AG; "tiada checks and balances kalau sekiranya pindaan yang dikemukakan oleh menteri..diluluskan"

The requirement of one-fifth of the total Bar membership for any general meeting and the necessity of a vote of not less than two-thirds present and voting for a decision to be carried, in effect means that "Kerajaan berkehendakkan peguam-peguam kita tidak boleh meluluskan apa-apa resolusi".

Tan Chee Khoon's prediction in 1978 resonates with the experience of the near impossibility of achieving the requisite quorum in recent years. In 1977, there were some 1,200 lawyers nationwide. Today there are about more than 4,000 lawyers in Kuala Lumpur alone.

He concluded that the government is in fact forcing lawyers to obey the wishes of the government of the day by the amendments; "pindaan..berkenaan (me)maksa mereka bekerjasama dengan kerajaan". This forced obedience to the state is a thin edge of the wedge.

Ariffin Daud (Permatang Pauh) was of the view that 'politically active' members of political parties, trade unions and legislative assemblies should not face disqualification for office." Pada fikiran saya..kita akan menafikan sumbangan yang boleh diberi oleh mereka ini kepada Jawatankuasa Peguam ataupun Majlis Peguam, kerana mereka inilah yang berdamping rapat dengan masyarakat lain daripada lain-lain pertubuhan."

Unworthy intention

There were 10 speeches in all with a right of reply by the law minister the next day. Hansard recorded some 30 pages of the debate. Among the 10 speeches, there was one plea (of perhaps Malay unity?) by Shaari Jusoh (Kangar) to bumiputra lawyers to support the government. "Saya berharap ..khasnya kepada peguam-peguam bumiputra supaya menarik seboleh-bolehnya kepada seluruh peguam untuk mencenderung ataupun menyokong segala dasar-dasar kerajaan."

Ten days after the amendments became law, the Bar held its statutory general meeting on Feb 3, 1978. The meeting was called to order when 246 members were present. Hundred and sixty lawyers passed a resolution among others, expressing regret that the government "has with the clear and unworthy intention of muzzling the Malayan Bar, proceeded with the passing of the Legal Profession (Amendment) Bill, 1977 thereby showing itself to be unwilling to accept valid and constructive criticism."

The Feb 3 annual general meeting of the Bar was rescheduled from an earlier date, three days after the LPA amendments became law on Jan 24, 1978. The requirements on quorum necessitated the change of date.

Time flies. After some 23 years lying in the statute book, the 1978 LPA amendments have commandered renewed interest. Last week, on Sept 13, 75 lawyers requisitioned the Bar Council to hold a meeting of the Bar. Under the LPA, a minimum of 50 lawyers can so requisition the council.

The requisition was prompted by a concern of the council's stand in an application by former council member, R Sivarasa for a declaration in the High Court to impugn Section 46A of the LPA which disqualifies him from the council.

Sivarasa was disqualified from holding a position in the council upon his appointment as vice-president of Parti Rakyat Malaysia on July 16.

The requisition attempts to query the council's stand in opposing the said application in view of the 1978 resolution which expressed the Bar's unhappiness with the 1978 amendments to the LPA which included section 46A.

Under the LPA, the council may call for a meeting within 30 days of the requisition. It made a press statement on Sept 15 that an emergency general meeting will be called.

The council invites a discussion with the requisitioners before the EGM. The purpose is yet unknown to many of the requisitioners.

Lawyers say that there are already grouses that the requisition and EGM will affect "unity of the Bar". Go figure, some lawyers say.

Indeed there are views that an occasional reminder, such as the current requisition is healthy for the well-being of democracy at the Bar.

Lawyers have been agitating for more transparent processes by the council in the last several years. The Bar's membership comprising predominantly junior lawyers is manifesting interest in self-governance. It is a sign of the times.

Note: This article was written before the meeting between the Bar Council and the requisitioners on Sept 21, 2001. The Bar Council has called an EGM this Friday to debate the issue.