Is the Bar Council playing politics?

— Rueban Balasubramaniam
The Malaysian Insider
May 18, 2012

MAY 18 — The Malaysian government has recently criticized the Malaysian Bar Council for playing politics in reaction to the Bar’s resolution that the police had used excessive force against demonstrators at the recent Bersih rally.

The government argues that the Bar is not being “impartial” in its assessment of governmental action. It alleges that the Bar is now operating effectively operating as a political opposition party.

The objection that the Bar is playing politics is not new. Former prime minister Dr Mahathir Mohamad has in the past recorded this critique of the Bar. Indeed, he has joined in the government’s response to the Bar’s recent resolution about police conduct during the Bersih rally.

This line of criticism of the Bar displays a fundamental misunderstanding of the role of the Bar as articulate defenders of the ideal of the rule of law and democracy.

To start with the rule of law, it is an ideal that is widely contrasted with arbitrary power. A commitment to the rule of law requires that before a government can claim that its actions are legally and politically legitimate, it must show that its actions accord with a sound interpretation of relevant laws.

In Malaysia, this means that the government must show that its actions accord mainly with fundamental constitutional norms. The Malaysian Constitution is the “supreme” law of the land, which means that any exercise of state power can only be legitimate if it is shown to comport with a sound interpretation of what the Constitution requires.

And because we now live in a human rights age, it is important to also keep in mind the relevance of fundamental human rights norms. Indeed, there is good reason to think that the Malaysian Constitution already presupposes such norms within the bill of rights, where we find that the bill protects rights that are widely recognized as human rights.

Of course, the Constitution is not the sole source of law. Other relevant legislation and case law might also apply. But the Constitution has special salience when it comes to the rule of law in the Malaysian context because it is the highest source of law in the land.

To the extent that the Constitution is expressive of the ideal of the rule of law and to the extent that the government derives its authority from the Constitution, all political questions are therefore legal questions.

For the government to enjoy legitimate political power, it must justify its actions by reference to appropriate legal norms. This subordination of politics to law is precisely what makes Malaysia a legitimate rule-of-law state, not a lawless state in which ruling elites manipulate the law to suit their intended political ends.

If the law is subject to constant manipulation, then the law is subordinate to politics and is therefore not a constraint against arbitrary rule. This is not our situation. Certainly, the government has never formally disavowed the rule of law.

And, to the extent that it characteristically asserts legal authority for its actions, the government recognizes that the legitimacy of political decision-making depends upon the legality of its actions. In short, its actions signal the idea that in Malaysia, law operates to tame politics.

If politics is subordinate to law in the sense that all legitimate political power must answer to a test of legal legitimacy — one that requires that the government show how its actions accord with a sound interpretation of the law — then it follows that lawyers have a special role to play within the rule-of-law state.

At one level, this role flows from the lawyer’s expertise in the law. Lawyers know how to interpret the complex body of law to determine whether or not the government is properly complying with the rule of law.

At another more fundamental level, lawyers are under a duty to uphold the integrity of the law as a coherent body of norms that operates to facilitate the interests of those it serves. In the Malaysian context, it is plain that the intended beneficiaries of the law are private citizens.

It follows that Malaysian lawyers are intermediaries between the ideals of the rule of law and democracy, where the ideal of democracy speaks to the notion of a representative government that aspires to protect the fundamental interests of the citizenry.

Democracy is not purely a matter of majority rule. Rather, it is predicated upon the idea that each individual is possessed of fundamental rights and interests that should filter into political decision-making that aspires to serve these interests.

Indeed, this is the impetus behind majority rule — such rule is the best proxy for determining how best to serve these rights and interests. It follows that the ideals of the rule of law and democracy are mutually constitutive of each other because both work together to undergird the idea of official accountability.

The linkage between both ideals is evident in the Malaysian Constitution. The document contains a bill of rights, as well as provisions affirming the separation of powers, and judicial review. More broadly, the supremacy of the Constitution clarifies that politics is beholden to law, an idea that makes sense only on the basis that politics should work in the interests of the citizenry.

Democratic politics in Malaysia is, thus, constituted by a duty to uphold constitutional norms. In this connection, an important role of the Malaysian Bar is to articulate the link between the ideals of the rule of law and democracy and to signal to the government whether or not it is properly observing this link.

With this point in view, it is apparent that the objection that the Malaysian Bar is playing politics is wrongheaded because it assumes that there is a tension between the ideals of the rule of law and democracy.

This assumption is implicit in the objection that the Bar is playing politics and acting like a political opposition party because the corollary to this objection is that if the Bar wants to criticize the state for failing to uphold the rule of law, then it must make an explicitly political argument in the character of a political party in keeping with the norms of democratic politics.

The government reconstructs the Bar’s assertion of the rule of law as a purely political position taken in opposition to the government’s decisions. There is a complete failure to see that the Bar is exercising its proper role by reminding the government that its democratic political authority is constituted by a commitment to the rule of law as mutually constitutive ideals.

This is not to play politics. Rather, it is to remind the government that democratic politics in Malaysia is infused by a commitment to the rule of law and that there cannot be the former without a commitment to the latter.

It seems that for too long Malaysia has been ruled by politicians who fail to understand the interplay of the ideals of the rule of law and democracy. There are complex reasons for this failure but I suspect that a major one is some concern that any acknowledgement of such a link would entail giving power to unelected lawyers and judges to run the country.

However, this is a false concern that once more turns on the mistaken assumption that the ideals of the rule of law and democracy are at odds with each other. The correct perspective is that the Bar and the Bench are empowered to work in concert with the government to ensure that it fulfils it legal and political obligations. Lawyers, judges, and politicians are partners within a broader project of governance that links the rule of law to the ideal of democracy so that the government will be accountable to the people.

I worry that the government’s criticism of the Bar Council not only displays ignorance about the ideals that underlie its claimed authority to rule, it also smacks dangerously of a desire for lawlessness. If the government is resistant to the Bar Council’s efforts to remind the government of its obligations under the rule of law and democracy, then the government is resisting the demand to be accountable to the people.

Here, the government cannot for long engage in such resistance without risking the appearance that it is a lawless government. Indeed, history shows that such resistance is likely to lead to the dismantling of very important institutional features of the legal and political order put in place to ensure governmental accountability in keeping with its commitment to the ideals of the rule of law and democracy.

One important stick of furniture that has already been rendered rickety is an independent judiciary. As is well known, the courts have been significantly weakened after the onslaught against the judges in the late 1980s by Dr Mahathir’s government in resistance to the judiciary’s efforts to control the government via judicial review.

The attempt to smash the judiciary has considerably weakened the government’s credibility as respectful of the rule of law and democracy because its actions were widely seen as an attempt to entrench an authoritarian executive power.

In light of this history, the current government should be troubled by the fact that it now finds itself falling in line with Dr Mahathir’s position against the Bar Council, for Dr Mahathir’s government was implicated in the assault on the judiciary.

In this vein, I am nervous that the government’s present criticism of the Bar and its talk of setting up a Legal Academy as an alternative to the Bar will lead to similar results. This would be to make exactly the same kind of mistake that was made with respect to the judiciary. I do not think the country can afford another such mistake.

* Rueban Balasubramaniam is an Associate Professor of Law with the Department of Law and Legal Studies, Carleton University, Ottawa