Agong’s Counsel

In most legal jurisdictions, a broad distinction is drawn between lawyers based on the work they do. Generally, a court going lawyer deals with disputes resolution; they are known as litigators. A non-court going lawyer deals with either supporting litigators or relationship building solutions; they are called solicitors.

My essay today is about litigators and considers the question: Should we, Malaysia, recognize senior litigators of accomplishment and experience and distinguish them from the common litigator?

In England, they have the Queen’s Counsel or King’s Counsel, depending on whether it is the reign of the Queen or King. Since it is currently the Queen’s reign in England, the office, which is conferred by the Crown and recognised by the English courts, is now Queen’s Counsel, or QC, for short. To be appointed a QC is to be appointed as ‘Her Majesty’s Counsel learned in the law.’ QC is also an honorific. Barristers of impressive accomplishment and abilities of 15 years experience or more are usually prime candidates. QCs are chosen on the basis of merit i.e. ability and accomplishment, not seniority or through attendance of court social events. That’s my description of them.

Here’s another description by Russell Winnock, an English barrister:

Right, now seems a good time to say a little bit more about Silks: who and what are Silks? And why, for that matter, are they called Silks?

Silks, or Queen’s Counsel, to give them their proper title, are the most senior barristers. They tend to have no fear of any judge, jury, witness or piece of law. They get away with all kinds of little tricks and devices that we more lowly juniors wouldn’t dream of doing, and they ultimately have the final say on any big decision in any big case because the chances are that their experience and judgement will be better than yours.

They are called Silks because their gowns are made of silk, simple as that. Whereas mine is made of cotton, well polyester-cotton mix, if I’m going to be honest, and I think you can get them in viscose now as well.

Confessions of a Barrister, HarperCollins, page 189, Chapter titled “Silk”

A QC’s dress and accessory is distinguished from the common barrister in two significant but subtle ways.

Firstly, and as mentioned by Russell, QCs wear silk robes, not the cotton/wool or linen/cotton mix worn by the common riff-raff, like myself, or worse, polyester, for durability and affordability. And if a litigator is ever in need of one (it happens), please borrow. Do not try to pass off thin black garbage bags, I don’t care how many microns thick they are, as robes. No one will be fooled. A robe with too much rustle is inappropriate for one who does not hustle.

Secondly, English barristers are known to carry a barrister’s bag. It is blue for those who cannot wear silk. Although any barrister or legal practitioner of no note can purchase a blue bag at a legal outfitters shop, they will not sell you a red bag unless you are a QC. The only way to acquire a red barrister’s bag is to achieve the rank of QC yourself or be given one by a QC, as happened with Russell Winnock. “Charlie Parkman QC” who led him a murder trial, bestowed him one in the last chapter of his enjoyable biography, Confessions of a Barrister (2015, HarperCollins).

What exactly is a barrister’s bag? It is a bag barristers use to keep, primarily, their wig in its wig case, their neatly folded gown (or robe, as we call them in Malaysia), their wing collar and collar studs together with its accompanying case, and their bands in a bridle leather bands case. A barrister can also put in other things that would help with his work such as books, journals, stationary cases, and a whiskey flask for sirap bandung (this is a suggestion for Malaysian Muslim lawyers; traditionally, whiskey flasks are filled with whiskey).

You can purchase one from Staley Ley, Legal Outfitters. I have a blue barrister bag. My father bought it for me when we visited England after I was called to the Bar. He bought it for me at Ede and Ravenscroft’s with my initials stitched in, which is customary to have. In it, I keep my court and syariah court robes together with my wing collar and collar studs in its case and songkok, which I keep in the boot of my car.

I used to bring it around when I first had it but I got tired of explaining why I was using a blue cloth bag instead of a suitcase like everyone else. Plus, carrying a suitcase keeps my things orderly, I can drag it around unlike a bag I am constantly rummaging around in. Also, if I did not wear my suit and carried my barrister bag around you may mistake me for someone who just robbed someone’s house without giving much thought to how I would carry out the fruits of my theft.

Aside from their dress, to be a QC is to enjoy the reputation of being the best in your respective area of law. The appointment of a QC is a tacit agreement between the bench and bar that these appointed chaps are very, very good at what they do and should be given honorifics to distinguish themselves from the common. Another indicator of a QC are their very expensive fees, a client can, at a glance, distinguish between a barrister’s invoice from a QC’s one.

In sum, there is great prestige and premium attached to being a QC.

Several commonwealth countries continue to follow the QC tradition such as Australia, New Zealand and Canada. Others such as Hong Kong, Ireland, South Africa, and Singapore retain the tradition but renamed the honorific as Senior Counsel (SC). Malaysia never had such a tradition. Although QCs have visited Malaysia since Merdeka to conduct cases every now and again, that distinction never took root here. There is no honorific in Malaysia to distinguish a lawyer of great ability from the common one readily found on the first floor of a shop lot. And so naturally, every now and again, the topic of Should we have a system to identify and appoint Senior Counsel? arises.

I have thought over this issue from time to time and have entertained the idea extensively: our very own Agong’s Counsel; an AC, if you will. Why go with Q or S, which are so far down the alphabet list in priority and song? We should be different and show our enthusiasm by using the first alphabet as the first initial. That is what led me to choose the word ‘Agong’. I liked the idea of a Sultan’s Counsel, but we would still be stuck with SC, which could also stand for State Counsel. SC therefore would have ambiguity about it, especially overseas, and like good legal practitioners we prefer clarity over ambiguity.

For these reasons, I prefer AC to QC and SC, and think it certainly superior to PC (President’s Counsel used in Sri Lanka), SA (Senior Advocate used in Bangladesh) and SAN (Senior Advocate of Nigeria in Nigeria).

How would the AC distinguish himself in bag and dress?

Where the bag is concerned, I think the Bar Council should advocate to reserve for itself the exclusive privilege of manufacturing and bestowment of such bags. And what should these bag look like? I don’t think we should follow the English ones. Let’s get real, it’s really just a sack, which they improved on the materials, stitched some initials on, called a barrister’s bag and slapped on a charge of £75 for each. It’s a brilliant bit of salesmanship. I often wonder what the profit margins on these bags are.

The bag, we should call it the Agong’s Attaché Case (AAC). It should be a thin, light and slim gold briefcase. It should be so slim it only holds a maximum of ten A4 papers. This is because the AC’s juniors are already carrying all his or her stuff. All an AC needs to carry is the most important document of the entire case: the invoices for client. The AAC should be tough and durable so it can be used as a sword, shield and a tray for food and drinks. As someone who in my early career fetched many a drink and food for clients and boss, I can attest a tray is far superior to two hands with five fingers . So AC juniors rejoice if this happens!

We should also keep the AAC abreast with the times. Why make an object for one purpose when you can fit in three? It is hoped the Bar Council will continuously improve the AAC and add other functionalities like refrigeration, video projection and foot massage.

As for dress, we should avoid silk like we avoid wool because both these materials retain heat. We have enough of that in the tropics. An AC’s robe should be made of the finest linen/cotton mix or chambray. These are light, airy and breathable materials which are appropriate for the tropics. An AC’s junior will appreciate its weight when they are running from an open air carpark under the heat of the sun with the AC’s files, bundles and bags into the cool of the court where the AC is likely to be engaged in a vigorous conversation punctuated occasionally by riotous laughter with his mates.

However, since a linen/cotton/rayon robe is still black, an AC may not be immediately or easily distinguishable from the common lawyer to the public eye. This is unacceptable. So I propose a headgear to intensify and bring immediacy to that distinction.

Since we abolished wigs a long time ago, the canvas above our head has been crying out for something to cover it (aside from our hair, for those that still have it). Perhaps we can consider a bright red fez so even a person from a mile away (with an unhindered view) cannot help but notice an AC’s presence. A bright red fez is an excellent metaphor for an AC’s undoubtable outstanding qualities – so obvious one cannot ignore it except by closing our eyes.

The fez’s tassel would indicate an AC’s seniority; the shorter the tassel, the longer they are in practice. Every AC starts out with a twelve inch tassel and shaves off quarter of an inch for each year in practice. That way, we can not only see them a mile away, we can estimate how senior they are too. And the Bar Council should reserve these fez tassel barber services too.

Despite my fancy ideas for an AC, I hope we never have that or anything like it in Malaysia. Now having written that last line, I am afraid. I am afraid because the conspirators of life love it when I declare something to be ‘never’. It’s as if they somehow learn of this declaration of mine and then conspire to make it happen. Sometimes I don’t even have to write it, I just have to think it. So this will happen in the next ten to twenty years, if not sooner. I apologize in advance.

My hope is such because I (and you) can guess with a certain degree of accuracy what would happen with such an honorific; it will turn into a horrorific. It will go the way of title awards in Malaysia.

After the first round of probably deserving lawyers, the next round would be those lawyers who don’t come close to deserving it but paid handsomely for it. Not long after, we will find ourselves awash with ACs that cannot string a sentence in English or Malay, that cannot tell a contract from a statement of claim, and possess a reputation so soiled, we’d have to dig nine feet deep before the sun reaches it.

And then later, every lawyer named Ahmad, Bala and Chong (and a whole bunch of other names) will suddenly have acquired an AC, or a ‘I didn’t want to tell you earlier but I’m an AC, you know’ whispered at the back of their hand as we are walking out from the gents together. Then, oh then, it will only be a matter of time before the general members of the public with a bit of spare cash will have acquired an AC, just because they can score one, like Bar Council car stickers.

I rue the day when ordering our char kuey teow from our favourite kuey teow dude this happens: Lai! Two plate. No pork. Pedas ah! One see ham, one no see ham. Table 15. He stops his frying, eyes me seriously, the tasel in his fez hanging stilly, and replies in an unusually deep and calming voice in clipped English, Encik Fahri, it’s Lai AC now. I have noted your order. Please have a seat and my junior will be with you shortly. If and when that happens, the AC would not just have no value, it would have negative value despite having a positive effect on Lai’s English.

That really is the only reason I am against an AC, and I think it reason enough. So while it’s a nice enough idea, it is not for us. That kind of thing will only have value and meaning when our political and legal institutions are based on merit, relatively free from both public and private corruption, and we do not conflate our own self-interests with those of the public’s interest.

For now, the only AC I am happy with in Malaysia is alternating current. Long may that continue.

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