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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