The proposed changes to the Legal Profession Act 1976 that are scheduled to be tabled at the next parliamentary sitting, which begins on Oct 17, have caused much disquiet in legal circles as well as in the wider society, with good reason.

The amendments, which the Bar Council has described as drastic, will rob the Malaysian Bar of its independence and have been criticised by Malaysian Bar Council president Steven Thiru as “an unwarranted interference in the self-regulation and internal management of the Malaysian Bar”.

Two key amendments are a proposal that two members of the Bar be appointed by the minister in charge of legal affairs to represent the government, and another that empowers the minister to make rules and regulations on the conduct of the elections to the Bar Council and of the office bearers of the Bar.

As the government holds a strong majority in the 

Dewan Rakyat, it can muscle through the proposed Act as a matter of course, but to do so would set the country back by a big step on its path towards becoming a mature society. There is no mistaking the fact that the Malaysian Bar has played a crucial role, providing checks and balances against impunity in government over the past several decades.

Among them, the Bar Council’s spirited criticism of the government during the constitutional crisis of 1988 illustrates the vital importance of an activist legal fraternity in defending the independence of the judiciary.

That dark episode, in which three judges of the 

Supreme Court, including the lord president Tun Salleh Abas, were dismissed, had been precipitated by a move by the then prime minister Tun Dr Mahathir Mohamad to amend the Constitution to divest the courts of their judicial power independent of Parliament.

In justifying the amendments, Mahathir had stated that: “… the courts have decided that in enforcing the law they are bound by their interpretations and not by the reasons for which Parliament formulated these laws … lately the judiciary had seen fit to touch on matters which were previously regarded as solely within the executive’s jurisdiction.”

Ironically, it is precisely this separation of powers that must be scrupulously preserved as it enables the actions of the executive to be reviewed by the courts, and so provides a recourse to justice for anyone who is wronged by maladministration.

In 1994, the United Nations Commission on Human Rights was moved by the increasing frequency of attacks on the independence of judges, lawyers and court officials and its impact on the protection of human rights to appoint a Special Rapporteur on the Independence of Judges and Lawyers.

It is notable that former Bar Council president Datuk Param Cumaraswamy was the first to be appointed to that post and held it for three terms, until 2003. This reflects a recognition by the international community of Cumaraswamy’s and the Bar Council’s unflinching efforts to safeguard the rule of law in the face of punitive actions against activist groups and individuals.

In addition to the amendments mentioned above, other changes will allow the minister concerned to increase the quorum of the general meeting of the Malaysian Bar from 500 to 4,000 members, or 25% of its total members — whichever is lower.

Criticising this condition in a recent statement, the University Malaya Law Society described the proposed quorum as “unreasonable and unrealistic”. It said that the highest turnout for any Bar annual general meeting has at the most been a mere 1,910 members from a total of 17,049. Furthermore, the financial burden of meeting the proposed quorum would be unduly onerous.

The latest proposals to amend the Legal Profession Act 1976 must be weighed against the potential damage that they may cause to the rule of law, which has been described as the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.

Besides the erosion of judicial independence touched on earlier, it bears emphasising that the history of our parliamentary democracy is punctuated with a litany of constitutional amendments that have increasingly concentrated power in the hands of the executive.

So, it is even more crucial that an institution like the Malaysian Bar, which has played a pivotal role in the advocacy of the rule of law, be protected from undue interference by the government. Moreover, it should be recognised that a healthy culture of open debate on government policies and processes, and the scrutiny and accountability of people in public office, are vital ingredients of a well-functioning democracy.

To ensure that our nation can achieve a universally acceptable level of good governance, it is indispensable that the democratic space be well protected and restrictions on civil liberties be rolled back as a matter of priority.

Further, it needs to be said that a country that does not make these conditions a core element of its governance systems cannot be considered a developed nation as the term is commonly understood, no matter what the economic indicators show.

Indeed, the implications of the proposed amendments to the Legal Profession Act 1976 are so dire that they may be said to pave the way for the undoing of the Malaysian Bar as a sentinel of the public interest.

So, if the broader national interest is put before the inclination to stifle a vocal critic, it is imperative that the proposed amendments to the Act be kept in abeyance.

R B Bhattacharjee is associate editor at The Edge Malaysia

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