ARE WE “PRISONERS” OF THE LAW OR ARE WE
FURTHERING THE CAUSE OF JUSTICE?
As lawyers, we too often get “imprisoned” by the law. We talk about "upholding the law". We talk about following the law. We talk about doing things in accordance with the law. We sometimes get so legalistic and we forget that what is more important is the "upholding the cause of justice ....yes justice NOT the law...."
If the law is unjust, what do we do? Do we still follow it? Do we protest against it? Do we call for its repeal? Or do we just ignore bad laws?
Talk about the law about assembly...now if we were to follow the law then we need to get a police permit everytime we want to celebrate some person's birthday or meet up with friends. Everytime we want to organise a talk or a forum (yes, even a forum/talk at the KL Bar Auditorium) or even a get together, we would need to apply for a police permit. Yes according to the law, everytime 3 persons or more want to gather, they would need to get a police permit and this law dealing with assembly of persons does not provide for any exclusions. I say that this law is absurd and is totally unjust and goes against what must and should be a fundamental and god-given right of all human persons - i.e. the right to assemble - the freedom of assembly.
Section 46A of the LPA, amongst others, says that lawyers below 7 years standing should not be a member of the Bar Council, State Bar Committees, any committees or sub-committees of the Bar - so is this a good law. Is this a just law? Is this just. Should members of an organisation be discriminated by reason that he is a young lawyer? The answer is NO - so what do we do about this. We protest against it and we call for its repeal, and when our call goes unhindered then we may just have to ignore it - and yes, this is what is called "civil disobedience". Mahatma Gandhi and the people of India used this “civil disobedience” a lot in their struggle for independence from the British colonialists. Civil disobedience means consciously breaking, not just ignoring, the law.
Now let us consider the law governing the quorum of the Malaysian Bar’s general meetings - it says that the quorum must be 1/5th of the total membership. That means we need more than 2,000 members to gather from all over Malaysia if we want to have a General Meeting - it this a just law. The minimum quorum requirement of normal societies is generally two times the number of the executive committee members - and if we apply that formula to the Malaysian Bar who has a Bar Council of 36, then the minimum quorum requirement for the moment must be 72 only. Is it just that our lawyers organisation is discriminated against in such a manner?
In a just situation, I believe that the membership itself decide on the rules of its own organisation be it membership rights, quorum, etc -This is the right and the just manner in which an organisation should be run. What right has the state to interfere in the running of OUR own organisation of lawyers?
Therefore, is the law that provides for such a high and unreasonable quorum just? For me it is unjust - and like all other unjust laws, I would choose to ignore this repugnant provision of the law. I believe that all lawyers should be treated equally, and should have a right to participate in all aspects of the workings of the Malaysian Bar.
Further, when at history, we see that these provision of law that sets such an unreasonably high quorum requirement were inserted by amendment of the Legal Profession Act at the same time that other unjust section 46A was inserted - and the intention for the inclusion of these unjust provisions can reasonably be said to be an attempt by the executive/legislative at that time to shackle the Bar - to silence the vocal and critical Bar that voiced out (and acted) whenever any body or person (including the State) did anything that was contrary to interest of justice.
These 'shackling' provisions were not inserted into the LPA for the good of the Bar or for the good of the country. The government of the day just wanted to eliminate or stifle one of the bodies that served a very important role of being a check and balance against State improprieties, violations of rights and any actions against the cause of justice.
Tasked with the duty to uphold "the cause of justice without fear or favour...", the Bar lived up to its duty and obligations. Thus, the attempted suppression of the Bar by the State was an action most definitely not in the interest of justice in Malaysia but maybe for the interest of the personalities who held the helm of the nation.
Rights in Law is very different from Human Rights. Many Laws violate Human Rights...and in Malaysia we have quite a bit of laws that are unjust and bad that just need to be repealed if government of the day really wants justice is to prevail. Some of these unjust laws today would be the Detention Without Trial Laws, University and University Colleges Act, the Printing Presses and Publications Act, the Official Secrets Act, the Legal Profession Act, the Societies Act,....and the list goes on. A new Prime Mister, we have, and we hope that he is one who considers justice as important, and we wait patiently for him to repeal all these anti-justice laws, and if he does not then he is no better than his predecessors.
When someone takes a group of person to court because they had a gathering without a valid police permit in the belief that he has a duty to uphold the law and justice and/or the "Rule of Law" - then this person is totally confused for he is definitely not doing something for the cause of justice and/or he is not clear of the meaning of "Rule of Law". Rule of Law does not mean rule by law.
Likewise, when a person takes the Malaysian Bar to court on the "quorum issue" or the "AGM Notice" issue, he is definitely not doing this for the "cause of justice" - he is doing it because he has become a prisoner of the law, and in this case a law or a provision of law which is unjust.
What is your legal basis? Which law are you relying on? Do you have a legal precedent that supports your case? These would be the kind of questions that will occupy the mind of a lawyer, and even a judge, who has consciously or unconsciously become a prisoner of the law.
There may be no legal basis and no precedent but that must not stop a lawyer from taking up a just cause. In deciding what is just and what is unjust, one has to rely on values, be it cultural or religious, and/or universallly accepted principles of justice. When confronted with a case, a judge should be guided by only one consideration and that is how can I give a just judgment to the parties before me. If following the existing laws and/or precedents on that matter would bring about injustice, then I must not be bound by them for my role as judge is to ensure that justice be done...and mind you not that the law be followed blindly.
No law and no constitution is perfect and/or infallible. One injustice that existed in our own Federal Constitution was that there was no protection against discrimination on the basis of gender, and that was recently remedied by way of a Constitutional amendment. Alas, this may the only situation that I can think of whereby our Federal Constitution was amended to further the cause of justice.
Adhering to the law is all right for so long as the law is just BUT to do nothing about a bad law only makes one an enemy of justice.
Wake up Brethren Lawyer and Honorable Judge, and let us stop being "prisoners" of the law and/or legal precedents, and let us all strive to furthering the cause of justice.
Charles Hector
14 June 2005