Wednesday, May 23, 2012

Roger Tan, Bersih and the Bar Council

1. Unswayed by fear or favour

As much as we do not like the judiciary to be perceived as pro-government, we also do not want the Bar to be perceived as pro-opposition.
ON May 11, the Malaysian Bar passed a motion containing 12 resolutions related to the April 28 Bersih 3.0 public assembly by an overwhelming majority. The decision of the House with 939 votes in favour and 16 against is to be respected. The argument that it is not representative of the 14,000-member Bar has no basis whatsoever as Section 66 of the Legal Profession Act, 1976 (LPA) is clear, that is, a motion is carried if a majority votes in favour of it.
With that above overriding principle, let me, however, put on record the reasons, whether rightly or wrongly, why I could not support the motion.
First and foremost, it must be acknowledged that Resolution (12) was amended to include, inter alia, that (1) the Bar is concerned by and does not countenance any acts of violence in a public rally and that such action by participants is not an appropriate response to the police; and (2) the Bar is equally concerned by reports that certain persons had crossed through the police barriers to Dataran Merdeka.
But this is a complete opposite of the language used to condemn police brutality and the manner in which the assembly was handled by the police on that day. I felt that merely expressing concern against the other law breakers is not strong enough. The Bar, in my view, must be seen in the forefront in upholding the rule of law regardless of whether they were police or protesters who had broken the law. If the Bar wanted to inveigh and condemn police brutality, the Bar must also do likewise against actions of those protesters who had behaved more like rioters and anarchists in assaulting policemen and jumping on and damaging police vehicles.

2. Loyarburok responds to Roger Tan

This response is jointly endorsed by Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga,Mahaletchumy Balakrishnan, Marcus van Geyzel, Seira Sacha Abu Bakar, and Sharmila Sekaran.
The Bar Council and the Malaysian Bar (“the Bar”) have been criticised recently as being pro-Opposition. This is because of the Bar's press statements and its Extraordinary General Meeting resolution regarding the police brutality shown at the Bersih 3.0 sit-down rally.
The common theme adopted by critics of the Bar is that the Bar was not fair, or even-handed, as the Bar were more critical of the police than it was of the other parties involved.
Some of the more popular criticisms were summarised in Roger Tan's article “Unswayed by fear or favour” which was also published in The Sunday Star on 20 May 2012. In summary, he says the following:
1. The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.
2. The Bar had prejudged the issues by passing the resolution because by doing so “the Bar had already come to a conclusion that all those acts listed therein had been committed by the police”.
3. The Bar should have demanded an apology from Dato' Seri Anwar Ibrahim  because “it was his men who were reportedly the ones who removed the barrier” which was “the trigger point”.
This statement is written immediately in response to Roger Tan's article, but also addresses others who have been critical of the Bar on this issue. We intend to address the second criticism first, then the third and first criticisms. Our reason for this will become apparent as our reply develops.
The Bar did not prejudge the issues
In his second criticism, Roger says that the Bar should only pass the resolution condemning police brutality after a finding has been made by an independent body such as SUHAKAM.
However, SUHAKAM relies on the evidence of witnesses, and often conducts a hearing several months after the event.
The Bar based its stance and resolution on the observations of 80 lawyers who formed a team of observers of events during Bersih 3.0. The purpose of assembling and mobilising this monitoring team was precisely so that the Bar would be able to rely on their eyewitness accounts, and not those of friends, media, the police, or post-event photos or videos.
The observations of the monitoring team were recorded and compiled within hours on the day itself, and thereafter fine-tuned and completed. We have no reason to doubt the credibility and observations of the team, and neither have we heard of substantiated allegations about them.
Aside from the Bar monitoring team and its report, since that day many other eyewitness accounts have emerged, including photos and videos that speak for themselves.
3. An Answer to Loyarburokkers

I knew this was coming because as I said it would be painful for some lawyers to read what I wrote in “Unswayed by fear or favour” last Sunday in The Sunday Star. I am indeed not wrong with my prognostication.
However, I am surprised that it was even necessary for the eight Loyarburoks to come together to give a 2,700-word response to something they felt were just mere fallacies being spun by me.
In a tweet sent out early yesterday morning, one of the eight, K. Shanmuga, tweeted that their joint statement, “Bar’s resolution proper”, The Star, May 23, 2012 was issued because my aforesaid article had got all of them so annoyed.
Hence, because I empathise with them, I would oblige them in the best tradition of the Bar with a short reply, which should suffice.
Firstly, my concern on the independence of the 80 monitors from the Bar is not totally unfounded. Out of the 80 monitors, I personally know at least one of whom I follow on Twitter. On April 28, the day the Bersih 3.0 assembly was held, this monitor, albeit not based in Kuala Lumpur, had tweeted, inter alia, the following whilst undertaking monitoring duties:
> Heading to @bersihxxx at Dataran xxx #Bersih. This is it, we love this nation. God save #Malaysia! We want clean & fair elections!

> Bye-bye BN! RT @xxx: Water cannons and tear gas fired. Bye bye BN.

> Don’t associate with them. Agent provocateur RT @xxx: #Bersih #Malaysia Unruly mob attacks police patrol car http://....
It follows that the political and social beliefs as well as the prejudices of these monitors are material to ascertain if the integrity and independence of their final report could be described as incontrovertible. Unfortunately, we were not provided with the names of these 80 monitors.
A fortiori, my political affiliation is not relevant compared to the monitors’ simply because I did not volunteer to assume such a heavy responsibility of being an independent monitor during the assembly.
Further, my MCA membership, albeit dormant, is a public knowledge and I have written several articles in that capacity anyway. Neither have I made any attempt to hide it. The fact remains that at least I do not pursue any political agenda under the guise of any organisation, be it political or non-governmental.
Of the many articles I have written, majority of them are critical of government policies and supportive of the Bar; the last being my support for the continuing professional development proposed by the Bar Council. (See “Lawyers must constantly improve skills”, March 9, 2012 in The Star)
The eight are probably oblivious, either deliberately or otherwise, of this fact — but hopefully not because they felt that was the natural thing I should do. In fact, I am in the least bothered by their insinuation that the stand I took in my aforesaid article was because of my MCA membership. As the saying goes, truth fears no trial and it is their assertion that is nothing but a fallacy.

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