'Bar Council becoming toothless'

By Teoh El Sen - Free Malaysia Today

FMT INTERVIEW KUALA LUMPUR: The Bar Council has been described as "toothless" for its failure to effectively voice out against injustice and to take care of the welfare of lawyers.

Popular human rights lawyer Edmund Bon told FMT in a recent interview that his frustration with the council has partly prompted him not to stand again for another term as a council member.

"This will be my last term in the Bar Council... unless something extraordinary happens, I will not stand in the next election," said Bon, who has been in the Bar Council for five years and has been chairman of three committees.

While not saying it was a protest move, Bon said the Bar Council has not been performing as well as it ought to, and has seemingly lost its direction.

"We seem afraid of offending the authorities... the momentum we have gained over the past few terms has been lost... members feel lethargic, and there is a feeling that little can be done through the Bar Council," Bon said.

He also said his decision (not to stand for election) was to promote the idea that council members should not stay around for too long. In fact, he proposed the idea to the council at its annual general meeting in 2005 but it was not adopted.

"People can say it’s a protest move. It’s up to them what they might think. I have also failed on my part to move the Bar Council (to act on issues). But I am sure more young lawyers will take my place, lead and do better," Bon said.

However, he admitted that the decision was partly personal as he felt that he needed some time to re-evaluate his priorities and possibly make a comeback in a couple of years.

Bon said he felt that if he stayed on under the present circumstances, he might turn even more cynical and become a lethargic member of the Bar Council.

Below are excepts of the interview:

FMT: Why are you quitting the Bar Council?

Edmund Bon: I’m not quitting the council as I will see out my term and fulfil the pledge to complete the 'MyConstitution Campaign' (bringing the Federal Constitution to the people). But I would like to add that while I am trying to promote the idea of taking a break after a length of time, it is quite frustrating at the moment because I feel that we could do much more as leaders of the Bar Council. We have not been performing as well as we ought to. I am also at fault as it is our collective responsibility. It’s just that each of us have our own portfolios and if we work on our portfolios full-time, it’s virtually impossible to have the energy to work on other areas without also stepping on the toes of other members.

What do you mean? Are there problems in the Bar Council?

We are not sufficiently listening to the members of the Malaysian Bar. We have lost touch and not responded fast enough to the needs of our members because we have become too comfortable being members of the Bar Council. Times have changed. The way information is being disseminated requires us to be on our toes. We are not communicating enough, we seem to fear taking difficult positions and standing our ground against the powers that be; and seem afraid of offending the authorities. Save for the well-entrenched views we have held in the past, we only react and our members are losing out. We are without a blueprint or a game-plan and that's why we are clueless about our direction. The momentum we have gained over the past few terms has been lost, and it will take some time to recover it. Members feel lethargic, and there is a feeling that little can be done through the Bar Council.

What 'momentum' are you talking about?

We haven't taken advantage of the influence we had acquired during our Walk for Justice (where on Sept 26, 2007, about 2,000 lawyers protested the VK Lingam video tape scandal, resulting in the formation of a Royal Commission of Inquiry on the scandal). That’s the problem when a precedent is set (establishing a high bar) – it's very difficult to emulate. I think that we (the Bar Council) are becoming toothless and lack direction in what we want to do. It is scary. I know I will be very unpopular with my colleagues for saying this, but I have tried many times before to work within the system. I hope this is not taken in a bad way, but we all need to wake up from our relative slumber. I admit I have not been as effective in pursuing the ideas I spoke about and I will step aside.

What other issues do you think the Bar Council has not addressed?

We have shied away from forcing Chief Justice Zaki Azmi and the judiciary to take a position on the judges named in the Lingam report, who have purportedly conducted themselves unprofessionally and who are still on the Bench. We are tip-toeing around the issue.We have not dealt with the Key Performance Indicator (KPI) issue sufficiently, allowing the judiciary to steamroll their ideas past us -- yes, some concessions were made to fine-tune the KPI system but on the whole lawyers are complaining about judicial conduct in dealing with cases -- justice is not being served, it's all a numbers game. The independence of the judiciary since the Chief Justice was appointed has not been dealt with at all; questions on the non-rotation of judges who sit on politically-charged cases are unexplained. There appears to be, unlike the 1988 crisis which was overt, a covert emasculation of the judicial arm. It’s even more dangerous because it’s happening without public attention or outcry.We have failed to monitor the work of the Judicial Appointments Commission and push for greater inclusion of civil society including the Bar into that mechanism.

We have failed to stop the recent amendments to increase the jurisdiction of the sessions and magistrate's courts. While we have got on well with the Attorney-General’s Chambers, ministers and judges, it’s a real wonder that we then get 'stabbed' and short-changed on the amendments. We were never asked for our views. Something somewhere is wrong. We are consulted more but we get pushed around more too. Internally, we are not responding adequately to members' bread-and-butter concerns -- young lawyers are suffering with the new court system. Many don’t wish to voice out for fear that their cases will be affected; and they also see the Bar Council as unable to improve conditions. So, these lawyers just put their heads down and hope for the best. Is this the Bar we want? We have moved away from the 'activist' Bar model we used to be two terms ago to a more 'centrist' one where the philosophy is one of consensus-building and compromising rather than of confrontation. That’s welcomed; only problem is that while this approach looks nice on paper, it’s not working or helping the members of the Bar. More worryingly, there are lawyers who have become disillusioned and disinterested in the affairs of the Bar Council because they think that as council members we only 'rub shoulders' with judges. It’s far from the case as there is some real work being put in on most occasions. We are fast losing energy and becoming devoid of new ideas of doing things. These issues are affecting public perception of the institutions of the Bar and the judiciary.

Are you hoping to send some kind of message from this decision (not to stand for election)?

We need to wake up, myself included. It’s a period of systemic introspection each of us needs to go through as leaders. It's very easy not to say anything, and be part of the 'crowd', because Bar Council members have the 'privilege' to rub shoulders with influential people. Some do, some don’t. But it’s not easy to speak out. It’s easy to be a 'career' council member though. Outside the council, members feel they are not being heard, and sometimes we must throw our hands up and admit that we are ineffective. We should be doing our walkabouts in every state like we used to. We should amend the Legal Profession Act to make the president and vice-president posts salaried, and the bearers will have to take time off their practice. If the Bar doesn't get in tune quickly enough, I believe members will rebel and revolt. But that's not to say we have not come very far and grown all these years. A great deal has changed and improved... but we must not stop there.

Is this decision also personal in nature?

Yes. And I blame only myself for not having the energy and desire to continue debating with my fellow council members to try change views when it looks like it can’t be done. There are of course other council members who feel the same but will voice their dissension in private. I have raised many of these issues in the council but it is up to the leaders what course of action to take. There is only so much one can do and some of us do not have sufficient powers to change things. Each of us has our own portfolios and all of us have to pull our weight together... So, if I were to continue (working in the council) I would probably get even more disillusioned. It’s time to re-evaluate my priorities. I feel that perhaps I need to be working from the outside. It’s been a great experience doing the best I could these past years with the young lawyers, and human rights and constitutional law committees, and I don’t regret it one bit. The many friends I have made along the way have now grown into a strong community of activists. .

Are you sure about this? And will this be permanent or will you return to the Bar Council later?

Quite definitely; unless something extraordinary happens, this is my last term in the Bar Council. I want younger members to continue what is being done but with more push and energy, maybe someone else can take up the fight. As for returning (to the council), I may make a comeback after two or three years outside of the Bar, depending on the situation.

Can you tell us about how you joined the Bar Council?

This is a common misconception; you cannot 'join' the Bar Council. The Malaysian Bar is made out of 13,000 lawyers. Under the Legal Profession Act 1976, it is run by the Bar Council, which only comprised 36 members elected by the State Bars and the Malaysian Bar. I was elected by postal ballot, where the top 12 will be council members. There are also 11 State Bars that hold their own elections and each will elect two representatives to the Bar Council, that is, 22 members.

Now we have 34, and the last two are ex-officio members, meaning the immediate past president and vice-president who sit automatically in the next council. We vote in November every year but we start our term only in March. Any member of the 13,000-strong Malaysian Bar can offer themselves to stand for council election. I stood for election in 2005. Surprisingly, I got into the council. (Bon is still the youngest council member.)

Do you have anything to add with regard to your move to 'quit' the Bar Council?

Maybe it is naïve idealism. I have nothing personal against the council and I hope what I’m saying would be viewed constructively and positively. It is an onerous duty, and an honour to serve in the council. But if one is not ready to put in the time, energy and effort, it is time to go. The council needs a holistic plan to improve the Malaysian Bar. There is much potential but we need to inspire our members again to collectively rise.