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OPINION: A matter of protecting public interest Print E-mail
Written by Roger Tan   
Thursday, 17 August 2006

© New Straits Times

The Legal Profession (Amendment) Bill 2006 was passed by Dewan Rakyat and Dewan Negara on July 6 and July 27 respectively. It now awaits the royal assent before it becomes law.

But not all lawyers are happy about it. Some are particularly upset with that part of the Bill (Disciplinary Board amendments) which deals with the Advocates and Solicitors Disciplinary Board and the disciplinary process.

So a group of 130 lawyers served on the Bar Council a notice to requisition for an extraordinary general meeting. The EGM will now be held tomorrow.

On Aug 5, the Bar Council, with the co-operation of the board held a forum to receive views and to explain the reasons for the  disciplinary board amendments to members. Unfortunately, a full exchange of views could not take place that day because some of the members present were not keen on hearing differing views. It was ironical because it was meant to be a gathering of lawyers to discuss matters of discipline, and yet discipline was lacking on the part of some.

It is important to always bear in mind that there is no substitute for rational argument. Emotional or worse still deliberate discourtesy never helps an argument.

As one American judge P. Trevor Sharp once said this to a group of law students:

“Practise civility and courtesy in all parts of your life, now. Good habits carry forward. There is an old adage: thoughts lead to acts, acts lead to habits, habits lead to character, and character determines our destiny. Courtesy and civility are not polite window-dressings; they are a part of the substance of the rule of law.”

The requisitionists complain that 12,000 members of the Bar were not consulted over the disciplinary board amendments. They forget that, before this, the Act had been amended five times and on all these occasions, the Bills, for various reasons, were not made available to the members of the Bar.

This appeared to be fine then with the requisitionists, even though the previous amendments had enacted the current secrecy rule covering the board and penalty for any advocate and solicitor refusing or failing to produce any document for the purpose of investigation; and even though the Bar memberships were much smaller on those occasions and therefore consultation would have been less impractical than now.

Those crying foul for non-consultation forget that all Bills have for a long time been regarded by the Government to be secret. For many years the Bar Council had not been consulted, let alone the Bar. Recently the position has improved.

The Government is now willing to consult the Bar Council on some Bills, but only on the condition that working discussions must be confidential.

The authorities have made it clear that if the Bar Council, when consulted, then sets in motion a process of consulting 12,000 lawyers, then consultation with the Bar Council will not take place at all.

It must not be forgotten that the establishment of the board and the enactment of the disciplinary board amendments are not primarily for the protection of the lawyers. It is to protect public interest, that is, to protect the public from errant or dishonest lawyers.

The original amendments rightly came from the board which is independent of the Bar Council in respect of disciplinary matters.

In fact, the first object of the Bar under section 42(1) of the Legal Profession Act 1976 is “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.”

It may not be popular with some members, but the interest and protection of the public cannot take second place to the interests and protection of lawyers, where discipline is concerned.

It is for this reason that the scales of justice tip in favour of the abolition of judicial review, when appeal is fully available. But this does not mean that the decision-making process cannot be challenged at the appeal stage. It can. The mischief that is sought to be corrected is the tremendous delay in the decision-making process that is caused by the abuse of judicial review for interlocutory steps, that has caused injustice to many complainants and victims.

To quote what one complainant wrote to the Bar Council complaining of delay: “If this had been a matter of life and death, I would have been quite dead by now.”

A fortiori, with the  disciplinary board amendments, the lawyer now has 3 rights of appeal - to the High Court (one judge), the Court of Appeal (three judges) and the Federal Court (three judges); as opposed to two current rights of appeal to the High Court (three judges) and the Federal Court (three judges).

Also, there should be equality before the law, and if there is appeal but no judicial review for interlocutory matters in criminal proceedings and that system works, a lawyer should not be treated differently.

The delay here is an injustice to a complainant. This is not about justice hurried is justice buried. It is all about justice delayed is justice denied, and justice slowed is justice irrelevant.

This is important because unless the public can see that lawyers are able to adequately and speedily deal with errant or dishonest members effectively, the reputation of the entire legal profession will be at stake.

It must not be forgotten that delay using judicial review can also be done by a resourceful complainant who wants to embarrass the lawyer by having a complaint hanging over him for as long a period as possible, even if the complaint is ultimately dismissed after many years.

There are many horror stories of lawyers whose livelihoods were affected because of frivolous claims against them. Some lawyers had also suffered great anguish and damage to their reputation due to bad decisions made by the Board.

Being slapped with a frivolous complaint can happen to any lawyer as this is part of the hazards of legal practice. Therefore, lawyers, too must be protected against any injustice.

A speedy process with a 3-tier right of appeal in fact benefits lawyers who face unmeritorious complaints. As reputation makes and breaks a lawyer, a lawyer will still suffer to a certain extent even if the case against him is later dismissed, if the complainant manages to drag the matter long enough to “punish” the lawyer.

To my mind, just like the courts, the problem actually lies with who sits on the Board. I am therefore happy to note that the  disciplinary board amendments will now require the Chief Judge to consult the Bar Council over the appointment of the chairman and members of the board.

Meanwhile, some members have suggested that the Bar Council request the Government not to bring certain provisions of the Bill into force by “staying” those provisions. But, even if assuming it is desirable, this, to,o will have its own problems.

The Bill does not have a provision similar to Section 1(2) of the current Act which allows the Minister to appoint different dates for the coming into operation of the different parts or provisions of the Bill. Therefore, the right under section 1(2) of the LPA can only be exercised after the Amendment Act has come into force.

However, if the Minister were to exercise such right after the disciplinary board amendments have been incorporated into the current Act, then the board would be rendered non-operational as the current provisions would have been automatically repealed after the Amendment Act comes into force.

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