Freedom of association must be driven by demand and needs, not compulsion through legislation
Bar Council Malaysia, Advocates Association of Sarawak and Sabah Law Association (collectively, “Bar”), the three independent Bars of Malaysia, jointly express our grave reservation and serious concern over the Government’s third attempt to establish, by statute, an Academy of Law. The Government’s earlier proposals were abandoned in 1996 and 2003 in the face of opposition from the Bar.
The independence of the Bar is an integral feature of our constitutional system of government, which is based on rule of law and not rule by law. An independent Bar is the foundation of justice and the last bastion against all forms of injustice. Thus, any measure or attempt to diminish the independence of the Bar in Malaysia is tantamount to a frontal assault on the very foundations of the Bar, and necessarily an affront to the rule of law.
The reasons for the establishment of the proposed Academy of Law by way of legislation are highly questionable.
Dato’ Seri Mohamed Nazri Abdul Aziz, the Honourable Minister in the Prime Minister’s Department, relied on the freedom of association of legal academicians, retired judges, members of Attorney General’s Chambers, law graduates and practising lawyers as the main reason for the establishment of the proposed Academy of Law. However, it is not the function of Parliament to force, by law, various Malaysian individuals to associate with each other. No reason has been proffered as to why legislation is necessary, or preferred, over articles of association. No public policy or public interest reason — let alone a compelling one — has been revealed as to why our lawmakers need to legislate, and why the Government needs to drive, this matter. If there are any shortcomings in the law of associations, amendments can be made to the Societies Act 1966.
By way of example, there are existing associations registered under the Societies Act 1966 whose membership are the same as that contemplated by the Minister. The Malaysian chapter of the ASEAN Law Association, ably led by our Chief Justice, is an association whose membership mirrors that of the proposed Academy of Law.
These associations have not clamoured nor demanded for their continued existence to be legislated. If there are persons interested in exercising their freedom of association to form an Academy of Law, it is for them to organise themselves under the Societies Act 1966, and not for the Government to undertake unsolicited initiatives to organise them.
Another purported reason for the proposed Academy of Law is to raise the standards and improve the quality of the legal profession. This will significantly overlap with, or supplant, the role and activities already performed by the Bar in this regard. The Bar Council launched its mandatory professional development scheme in March 2012, aimed at providing quality continuing legal education for Members and any non-Members in the legal community. Both the Advocates Association of Sarawak and the Sabah Law Association have active professional development programmes, and all three bar associations regularly cooperate with each other in this responsibility.
Moreover, the Government’s resources are better utilised in training lawyers at tertiary level, and supporting the Legal Profession Qualifying Board, chaired by the Honourable Attorney General, in the implementation of the Common Bar Course as the final arbiter of quality for new entrants into the legal profession.
We urge the Government to uphold, respect and protect the principles of rule of law enshrined in our Federal Constitution, and the spirit and intent of the separate points of agreement with Sabah and Sarawak, which underpin the need for an independent Bar in Malaysia. Our nationhood is paved with many instances of the independent Bar upholding the cause of justice without fear or favour. It is therefore essential that the Government accepts the utility and stature of the independent Bar in Malaysia, and the universal respect we command as advocates for the rule of law.
We call on the Government to sincerely and honestly reconsider whether there is a need for the formation of an Academy of Law by way of legislation. The Bar strongly feels there is no such need or demand, from members of the legal profession, legal academicians, retired judges and others, to justify its establishment.