Unlike QC Laidlaw, local lawyers aren’t noted for novel developments in court which can be declared as law
It may be the season for looking in the mirror in the wake of the Bar Council of Malaya allegedly currying favour, openly, with Judge Nazlan by lamenting his plight in court in the wake of the MACC probe.
That’s probably tantamount to corruption, abuse of power, conflict of interest, and criminal breach of trust. It also smacks of prejudice against former Prime Minister Najib Abdul Razak. See here.
Patently, there’s a case for the Bar Council of Malaya, allegedly notorious for protecting the black sheep in the profession, first putting its own house — the Malayan Bar — in order. It should also not remain self-serving in the way for much needed reforms in law education.
These reforms, based on the Mentoring system and dropping the LLB and CLP, can probably help produce brilliant lawyers.
The Bar Council allegedly looks the other way when there are complaints against lawyers.
This may arise from lawyers routinely not obtaining written mandates from Clients before representing them. Lawyers, it has been alleged, also don’t get written instruction from Clients on cases and may be acting with impunity in court.
Lawyers are noted for not giving even a scrap of paper to their Clients. A letter, for example, may mention c.c. Client. It doesn’t happen as numerous Client testimonies will show.
Then, there’s money. Clients don’t find it easy to get compensation money, awarded by the court, from lawyers. Many Clients may only get their money from lawyers in bits and pieces, after all sorts of “dubious” deductions, if they chase hard enough.
There’s widespread speculation that lawyers use Client Accounts to be party to illegalities like loan sharking, speculating in properties, embarking on development projects, taking part in auctions, financing political party activities, running skim cepat kaya (get rich quick) pyramid scams based on MLM (multi-level marketing) business plans and developing the List of People to Bribe and List of People Bribed. The external audit process may not be working.
The corruption in the legal fraternity may be complete. Corruption can be defined as the act of making everything one touches to go bad.
The MACC Act narrows the definition of corruption to personal benefits arising from simple giver and taker situations. So, it’s the ikan bilis (small fish) who are sent to jail while the sharks escape.
No one can remember the last shark who was jailed years ago. The MACC can also get prosecutorial powers from the Attorney-General (AG) on money laundering cases. We don’t know how much money was seized.
Acting In Person In Court
Except for criminal cases, there’s a case for more Claimants and Respondents Acting in Person in court. The court and the Legal Aid Bureau (Biro Bantuan Guaman) can guide them. If they can’t write, they should look for a senior court reporter.
These journalists can run circles around lawyers. They also know who are the lawyers bribing court reporters.
In fact, the High Court can allow senior court reporters — upon Power of Attorney by Client as in India — to appear in court on a case-by-case basis.
Union officials, for example, are allowed to appear in court as representatives. The content in the LLB, CLP, Bar, and Chambering is irrelevant.
The University of London advises law students: “Think like a lawyer and write like a journalist. Law, ultimately, is the power of language.”
“It’s not possible for anyone to know the law.”
“It’s a bit of a mystery exactly what skills lawyers bring to bear on cases in court.”
The university cautions students against placing any reliance on the LLB, an academic programme lacking in courtroom content and skills and only suitable for teaching law.
The public may be forgiven for thinking that the Bar Council, like its counterparts in Sabah and Sarawak, appears confused over its actual role as the governing body for lawyers in Malaya. See here..
Likewise, the Sabah Law Society (SLS), to digress a little, is filing judicial review against the Federal Government for not paying 40 per cent of the revenue collected in Sabah to the territorial government.
The 40 per cent, mentioned in the Federal Constitution, maybe a redundant Article, the SLS may not have locus standi, and the time limit for judicial review may have run out.
It’s like flogging a dead horse if the merits of the Application isn’t heard. Therein the matter lies.
The SLS, like the Advocates Association of Sarawak (AAS) and Bar Council, never spoke up on the Federal government’s non-compliance with the Malaysia Agreement 1963 (MA’63).
MA’63 is the basis for Sabah, Sarawak and the Federation of Malaya to be equal partners in Malaysia. Wither constitutional law.
Song And Dance Act
The Bar Council, perhaps petrified by the thought of it all, may be putting on a song and dance act on QC Jonathan Laidlaw filing an Application to represent Najib in the Federal Court.
The SRC International case, for those not familiar, isn’t about the RM42m transferred to Najib’s account/s by other parties for (ostensibly) corporate social responsibilities (CSR).
The case is about alleged abuse of power, conflict of interest, and criminal breach of trust.
The element of personal benefits, arising from bribery and corruption, may be missing. The monies in the account/s were probably mixed and not supervised by Najib who, unlike Mahathir Mohamad, tends to avoid nitty-gritty details and micromanagement.
These were “loopholes” in the navigation of the system which people like fugitive fund manager Jho Low exploited.
It would be a fatal flaw in law to deny Laidlaw’s Application on “technicalities”, for want of a better term, just because local lawyers fear being made to look bad.
The letter of the law, by itself, isn’t law at all. The jury may not be out on whether the Federal Court can find the law on Laidlaw’s Application and Declare it.
It’s the work of the prosecution and defence to look for the law on the QC and point it out.
Spirit Of The Law
In the rule of law, the basis of the Constitution, there’s a greater emphasis on the spirit of the law, albeit read with the letter of the law.
QCs are highly skilled lawyers in specific fields. It goes without saying that only brilliant lawyers with specific skills are appointed QC.
Malayan lawyers should ask themselves why none of them can be considered brilliant. We won’t come across any lawyer who has mastered the English language for perfection in writing for perfection in law.
In the Borneo Territories, it’s the pits. Local lawyers, lacking in skills, are not noted for novel developments in court which can be declared as law.
Unlike in England, for example, the Mentoring system virtually does not exist in Malaysia. If it’s not about the blind leading the blind, it’s every man for himself in a dog-eat-dog world.
Every new lawyer in town wants to set up his or her own practice and make tons of money. They work with an army of touts, the police who frequent the court and court reporters and keep postponing cases or don’t turn up.
Miscarriage Of Justice
The Federal Court may be persuaded to rule mistrial based on the tainted SRC Ruling in the High Court creating a miscarriage of justice. That merits Pardon.
Judge Nazlan allegedly went off at a tangent from Submission, apparently for no rhyme or reason, and pontificated sanctimoniously on this and that and that and this. He may have got carried away by his own you-know-what and allowed the Obiter Dictum to influence the Ruling. See here and here.
As the 1MDB-related Roger Ng case in New York shows, the court will Rule on whether there was a “conflict of interest” in the allegations against Judge Nazlan and whether the fresh evidence being offered is relevant to Najib’s Appeal. See here.
Only a judge can recuse himself. A judge’s refusal to recuse himself cannot be held against him unless there’s a real risk of miscarriage of justice.
One swallow does not mean Spring. Najib and/or the MACC going after Judge Nazlan isn’t tantamount to intimidation.
The judiciary, by its very nature, cannot be intimidated. They should keep their cool. Instead, they pushed the panic button and issued statements on Judge Nazlan and related matters.
The dignity of the court must be upheld at all times but not by bringing contempt of court charges against anyone as the AG did to Malaysiakini and left it RM500K poorer.
If the nature of human relations needs to be regulated, it can be done by law, or by some other means.
Federal Court Focus
The Federal Court, before looking at errors in facts and errors in law, should focus on the Doctrine of Separation of Powers, the judicial power of the Federation, the prerogative and discretionary powers of gov’t and management, macro management, micromanagement, the Cabinet System based on the consensus principle and collective responsibility, and internal checks and balances in organisations, based on compartmentalisation, i.e. no one person knows everything and no one decides unilaterally.
The Federal Court should never be accused of putting on blinkers, like in the Herald’s Allah case where irrelevant principles in law from India were cited as an advisory opinion given the lacuna (gap) in local law. The lawyers who literally fleeced the Church had no words left but laughed all the way to the bank.
The Federal Court should, at all times, adopt a wide latitude in interpretation. The Apex Court should be proof that a winning case from the lower court can be lost and a losing case won. The losing party can cite the dissenting judgment in Federal Court Review.
Contrary to public perceptions, the court does not decide on cases.
It merely Rules on Submission by parties in dispute on issues in conflict or Declares on Originating Summons by a party in court. Hence, intimidation does arise.
Where there has been no miscarriage of justice, lawyers cannot blame the court. They should read their submission and court transcripts on cross-examination and brush up on their writing skills.
The University of London advises those weak in English to go for tuition.
The Court of Appeal, often considered redundant given the Federal Court Review option, is noted for the standard line, “We see no reason to interfere with the High Court Ruling. There are no errors in facts and no errors in law.”
QC Laidlaw may be able to help prevent Ruling/Declaration against Najib and help prevent Ruling/Declaration in favour of the Prosecution.
In court, whether criminal or civil, it would be prudent to exhaust all Applications before proceedings begin.
According to courtroom practices, i.e. for case directions for case management given during case mention, applications would have to be exhausted first before proceedings follow.
As long as a case can go back and forth, it should go back and forth. The court cannot stop the process even if there are complaints by the other side on the case degenerating into matters which can be regarded as frivolous, vexatious and tantamount to abuse.
Hence, the delay in proceedings. Health and medical reports may also cause further delays. All applications, whether successful or otherwise, can subsequently be included in the submission in the form of Exhibits to outline the history of the case. See here.
The mostly English-educated Bar Council, in a public exercise in hypocrisy and by agreeing with the prosecution, has made much of Bahasa Kebangsaan (national language) just to thwart Laidlaw.
Any language can be spoken in court. That’s why they have jurubahasa (interpreter) in court. Witnesses in court routinely speak in Tamil, Chinese, Iban, Bidayuh, Dusun, Bajau and Suluk, among other local languages and dialects, and foreign languages A Certificate of Urgency can be filed under Order 92, Rule 1, of the Rules of the High Court on the national language.
That allows Submission to be filed first in English “translation” based on the promise that the Bahasa “original” would follow within two weeks. There’s no law if the Bahasa “original” isn’t filed. See here.
The Federal Constitution, in fact, came first in English and therefore considered the valid version in law. In Bahasa, the Federal Constitution remains translated.
If a conflict in interpretation arises, the Federal Constitution in English prevails, Article 152, or no Article 152.
Bahasa, although not a language of law, is among the criteria for local lawyers to be admitted to the High Court of Malaya. This can be “waived” by the court by ignoring the criteria.
It’s the court that decides, not the Bar Council or Attorney General. English is the language in the High Court of Borneo (Sabah and Sarawak) and for cases in the Court of Appeal and the Federal Court originating from the Borneo Territories.
In any case, Order 92, Rule 1 — Article 152 Bahasa Melayu (Johor-Rhio-Lingga version) — may be redundant. Only the court can Declare this.
The Malay language may be spoken differently in different parts of the Archipelago, as pointed out by Prime Minister Ismail Sabri who has politicised the issue as he fights to stay relevant.
However, no linguist would say that the Johor-Rhio-Lingga version of Bahasa Melayu in Article 152 and Bahasa Malaysia are one and the same and/or vice versa. Bahasa Malaysia and Bahasa Indonesia — the latter is 20 per cent Dutch and there are also many loanwords from English and local languages and dialects — are not one and the same and/or vice versa. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.