The Bar Council Maligned

The Malaysian Bar Council is a statutory body everyone loves to bitch, whine, moan and complain about; from the public, politicians, government and especially its very own lawyers. Hardly a day goes by without some lawyer belting out their righteous indignation on whatever media about how the Bar Council is not doing this or that, or not enough of that or this, should be doing this or that, at how disappointed, angry, frustrated, etc., they are. There is no doubt about it, the Bar Council is an easy elbow-distance target; and easy targets are easier to hit.

So frustrated and disappointed are some of its critics they claim their disappointment with the Bar Council drove them not to even commence practice. To these idealistic snowflakes I wish them all the best in what they do next. May they thrive in greener pastures. Just don’t let your ass hit the ancient gates of law on the way out; those things cost a lot of money. The easily disappointed are not meant for the rigours of law. It is their good fortune to recognize their shortcoming early, and spare us their future whines and complaints.

Their expectations are misplaced. They did not come to serve the law, the court or its clients, or they expected to do so in conditions ideal to themselves. They expected a nest before bending to pick up a twig, and a standing ovation after doing so. If you come to the law to be inspired or to realize your ideals or for a comfortable life, disappointment awaits. The practice of law is either an anti-climax or a disappointment in some shape or form; like everything that becomes a chore at some point.

However, you can bear it all if you understand this: As much as you love the law and the practice of law, it will not love you back.All you can do is be content loving the law and its practice for its own sake. The pleasure and love for legal practice comes not only from satisfying wins or deserved losses and settled fees; in fact it comes primarily from its practice and process, the friendships formed and the camaraderie enjoyed whilst practicing and its many other delightful ornaments.

I know I sound insane writing this because some days I don’t feel it but most days, I still think it a privilege and a pleasure to help those with legal problems and issues. It is a blast to draft contracts or cause papers, examine witnesses in court, argue an appeal and do or savour everything that comes with being a lawyer, and a reasonable fee, of course.

It is a privilege and pleasure to be trusted and relied on by those that need me and place their trust in me. I enjoy exploring or arguing pointless legal issues with my lawyer friends. I take pleasure in reading and writing articles and essays about the law and its practice. Those are some of the main reasons I came to the law and stayed; it never was for money alone.

Money is important, of course, but its importance is limited to fueling the enterprise of legal practice. I think of my firm as a pinball machine I am addicted to. My role is simply to earn money to keep playing the pinball machine. The pinball machine represents the pleasure and joy of working with people I like and doing legal work with, and serving clients we like. Money alone cannot be the purpose for legal practice, and if it is, there are faster ways to make more money than a being lawyer.

My elation or disappointment with the Bar Council has absolutely nothing to do with my legal work and pleasures with the law. They are tangential to each other.

Do the present barrage of complaints levelled recently against the Bar Council being incompetent, not doing enough, etc., have a basis? I think that needs to be assessed within the context of the Bar Council’s statutory duties under the Legal Profession Act 1976 (Act 166); not just whatever we feel they should do as matter of logic or convenience. The Bar Council’s purpose are set out in section 42(1) of the Act. There are 14 purposes and these are sub provisions (a) to (n). Below I drew up a list of what I culled from the Bar Council website and my own meager memory of what the Bar Council has done in relation to its purposes:

If you think there are other initiatives I missed out, please feel free to correct me in the comments | Please excuse my notations

Section 42(1) should be our guide about what we can expect from the Bar Council. It will ensure our expectations and demands of the Bar Council are consistent with its statutory purposes. It reminds us of the competing and sometimes contradictory demands on the Bar Council. It is hoped this awareness will temper and bring some restraint to the complaints lobbied. I doubt it.

Most importantly, I hope it guards against expectation creep. That is where we are at now. The expectation of the Bar Council has creeped far beyond its statutory purpose; the Bar Council is the skinny boy dressed and hyped to be this great warrior that his people are constantly sacrificing on the altar of unreasonable expectations and lack of empathy.

An example of expectation creep is the recent demand, amongst others, on the Bar Council to do something about its ‘sexual misconduct mechanism’. I don’t think it’s the Bar Council’s business to set anything up. My reason is this: Sexual misconduct or sexual harassment is a subject matter of an industrial relations complaint; or a tortious claim; or a criminal complaint. The remedy is threefold; lodge a complaint with the employer about the matter, sue for a sexual harassment, the Malaysian courts fashioned a cause of action for such victims for that very purpose, or file a police report for outrage of modesty or use of physical force. A victim can take all actions simultaneously without one waiting for the other. They will have the employers, courts or police looking into it. But they have to act.

The Bar Council has nothing to do with any of it. It shouldn’t have to do anything about it. There are enough avenues for redress. The Bar Council should not waste its meagre resources on matters that should be addressed by other agencies with the explicit purpose and budget to do so.

And speaking of meagre resources, the Bar Council subscription is RM 1,080 a year. Actually, the amount that goes to the Bar Council is only RM 450 per lawyer per year. That is how cheap it is renew our licence. We all know the peanuts proverb, but we forget the monkey part.

For those that complain at that and struggle to make enough to cover RM 450 with ease, that is RM 37.50 per month, you are not cut out for practice. Please do something else. We should be asking how much more we should be paying given this rate, not how much less. But that is the Malaysian in most of us – we want gold for tin. If I had to peg a rate, I think RM 1,200 per year for subscription reasonable. It works out to RM 100 per month, RM 3.33 per day. If we cannot make RM 1,200 for the year, we should get out of practice. Let us not embarrass our brothers and sisters at law who know how to earn a living in law and quietly make our exit. A higher subscription rate gives the Bar Council greater resources, which it is hoped to make it more responsive, give it greater reach and improve the quality of its services.

The balance RM 630 is divvied up as follows: RM 250 goes to the Building Fund to maintain the Bar Council building. RM 100 each for the Legal Aid Fund, the LawCare and the Compensation Fund. The Legal Aid Fund is for the Bar Council Legal Aid Centres throughout Peninsular Malaya. LawCare provides financial assistance to lawyers or their families when a lawyer suffers illness, disability or death. Under LawCare, the Bar Council buys life insurance for each member. The Compensation Fund is to compensate clients whose lawyer ran away with their money. The Sports Fund gets RM 20. These are for the Bar’s sporting activities. Finally, the Discipline Fund gets RM 60, this is our contribution to the Advocates & Solicitors Disciplinary Board.

According to the Malaysian Bar member list as at 21 June 2021, we have 21,193 lawyers in active practice. That means, the Bar Council collects roughly (21,193 x RM 450) RM 9.5 million a year. That amount has to be spread out over the Bar Council’s purpose from (a) to (n) and the cost of the administration of the Bar Council itself, and its many, many subcommittees. The Bar Council office bearers – the President, Vice President, Secretary and Treasurer – serve without remuneration. I think they should be. If not fully then at least partially, because the demands on them these days are immense, if they take the responsibility seriously. A higher subscription rate could go some way to address that. Even though there are benefits and advantages to the position, there are still responsibilities that come with it that still have to be carried out.

With RM 9.5 million stretched over 14 purposes, including the administration and related costs, and bound by its statutory duties under section 42(1) the Act, it does not have much to go around and its hands are restrained. It is important, if not critical, for the Bar Council to be discerning in how it spends its resources be it financially, effort-wise or institutional reputation. And in order to be discerning the Bar Council must draw a distinction between what is important and what is urgent. The Eisenhower Important/Urgent matrix is useful. There are important and urgent; important and not urgent; urgent but not important; and not important or not urgent. Many things are not urgent or important, or even if urgent are not important.

Whatever the case, the purposes under section 42(1) are mandatory; which particular demands are urgent needs deliberate consideration because each purpose must be weighed within the context of other competing demands. From what I read from lawyers complaints on social media, I get the sense some think the Bar Council is responsible for redressing every legal practice complaint. They can be identified by the phrase they use: ‘The Bar Council should be doing something about this.’ In doing so these lawyers forget they can do something about the situation instead of whining about the Bar Council’s inaction. The Bar Council has somehow created a mentality of learned helplessness amongst lawyers. I find it perplexing.

A personal example to illustrate my last point. I have a Facebook account. I am a member of the Malaysian Legal Group run by Foong Cheng Leong. Sometime last year after I logged back on after being off Facebook for about a year (it was a blissful year), I wandered into the group and saw a huge amount of complaints by lawyers about the requirements imposed by the National Registration Kuala Lumpur (KLNRD). They imposed what many of us felt were unreasonable requirements for lawyers to comply with before KLNRD disclosed the IC search to us. The KLNRD required plaintiff lawyers to show them the papers for the legal suit filed in court against the defendant before disclosing the IC search result about the defendant. We needed the information before we filed the suit not after. How absurd is that?

The themes of the complaints were two fold: the lawyers related their experiences like lay members of public unaware of any applicable law and/or complained the Bar Council was not doing anything. After reading the first post I thought the action to take was obvious: judicial review. Why are we sitting around complaining? We are lawyers! We craft solutions and work it. A judicial review is a process to challenge decisions of government department and authorities. The KLNRD requirements were made pursuant to statutory law, so decisions made by them may be judicially reviewed. Issuing unreasonable guidelines for us to comply is something amenable to judicial review. Well, so goes our argument.

I posted a comment to say the decision should be judicially reviewed. A lot of people liked the comment. I waited to see if someone would do something other than click like, love and all those heartfelt emoticons on Facebook that so express that depths and intricacies of our soul and sophistications of our emotions so precisely. Nothing happened.

I posted a call out to form a team to initiate a judicial review against the KLNRD requirements. My firm and our client would act as litigant and I would bear the costs. A few noble souls messaged me personally to form the team. Out of the thousands in the group five signed up: Joshua Wu, AI Tan, Ganaesh Rau, Tjun Tjunnie, and Colin Andrew Pereira comprised the backroom and expenses. Harvey Hundal and Harvinder Sidhu came on board as counsel and solicitor respectively a little later. All of us are doing the case pro bono.

I put out a call for lawyers in the group to prepare and send in statutory declarations to support our judicial review application. Out of the thousands in the group, the first yielded five. The second call out yielded three or four. I hoped we would receive many more statutory declarations given how intensely the bitching on the facebook group page was, often laying out a full account of their own experiences. But that is a typically Malaysian thing isn’t it – all talk no action? I am grateful to those lawyers that took the time and trouble to type out, affirm and send the statutory declarations over to us. We need more quiet selflessness like that at the bar.

The judicial review application is presently fixed for hearing for permission to judicial review in August. In legal parlance, this permission is called ‘leave’. ‘We seek leave to judicially review the Respondent.’

The point of that was to demonstrate there is much we as lawyers can do if we band together and initiate actions that address legal concerns that affects us all as lawyers. The point was also to show how much apathy truly lies behind such complaints; many complaint for the sake of complaining; to make themselves feel better; to virtue signal; to show they care when they really don’t and are just inconvenienced. The point was to show we do not have to wait for the Bar Council to do something. We are lawyers. We have the knowledge, the tools, the arguments, the friends and likeminded. What are we waiting for? What does the Bar Council have to do with it? Why can’t we address this ourselves? I know the answer to the last one – bystander effect.

The bystander effect occurs when the presence of others discourages an individual from intervening in an emergency situation, against a bully, or during an assault or other crime. The greater the number of bystanders, the less likely it is for any one of them to provide help to a person in distress. People are more likely to take action in a crisis when there are few or no other witnesses present.

Psychology Today

A helpful thing to do before we criticize another or an organisation like the Bar Council is to remind ourselves that behind that statutory edifice are people. In fact, behind every organization, every company, every society, every conglomerate, at the end of all of it is a person, a human being. And that human being like you and me, have our present failings, our present weakness, our fears, our struggles, etc. That we humans actually were born to fail, but we also have within us the capacity to get better, to improve.

We must give them benefit of the doubt. That’s what even an accused person enjoys, entirely in theory, of course. We should be mindful of our tendency towards fundamental attribution error. This is when we attribute a persons actions by their intentions or internal motivation instead of external events. Another tendency to guard against is self-serving bias. That is when we do it it is okay because we have a good reason; but when others do the same thing, they are thoughtless or wrong. In short, we judge others by their actions, but ourselves by our intentions.

Have we applied Hanlon’s Razor to the situation? That requires us not to attribute malice to someone’s actions when it can be explained by carelessness or incompetency.

Complain, by all means, but be fair, moderate and reasonable in our complaints to and about the Bar Council. We have to ask ourselves how far are we prepared to take this? What entitles us to complain aside from a practicing certificate and an opinion? What ink or blood have you spilled for your brothers and sisters at law before you draw your sword of criticism? Are we reasonable in our expectation and demands given its organization structure and set up? Imagine yourself at the end of one of your complaints or criticisms, is this how you enjoy taking criticism?

It is a statutory organization. That means to a certain extent its hands are tied. It survives on subscriptions. It means its bank accounts are tight. It is a Malaysian statutory organization, so a certain amount of bureaucracy is expected. These are the limitations it works with. It is in the context of section 42(1) of the Act complaints should be assessed for fairness, moderateness and reasonableness or if it fails on any of those counts. The Bar Council is incapable of pleasing everyone; and will never do. In making demands, we too, have to be reasonable and restrained.

Instead let us first acknowledge the good work the Bar Council has done over the many years as well as in meeting its purpose under section 42(1). And where it falls short, to provide suggestions or lend assistance instead of a complaint simpliciter. We are lawyers, after all. We are supposed to be ‘solution providers’. If we cannot find solutions to our own legal problems how can we expect to resolve other people’s legal issues? And instead of asking what the Bar Council should be doing for us all the time, we should start asking what can we do for the Malaysian Bar together without the Bar Council? If we as lawyers sit around, whine and complain about the Bar Council not doing anything about a problem we feel strongly about that is well within our competency then I think we have failed in our own roles as lawyers.

Before letting loose, remember our failings, both great and small; recall the people we disappointed, hurt or angered in our moment of lapse; and find some humility to sit under first. Before taking up the mantle of righteous indignation, remind ourselves that in fifty years no one will remember a thing. Life has gone on and will go on long after we are gone. We are, at best, a footnote; our complaint even less. No one will remember our words, but as Maya Angelou says, they will remember how our words made them feel. And our words do not reflect the nature of others, they are a reflection of ourselves.

5 thoughts on “The Bar Council Maligned

  1. hi Fahri, g’morning.

    In relation to Section 42(1)(j) of the LPA, MB does provide scholarships/grants, or the likes of it. I can’t confirm if they still do or the manner in which it is distributed or their recipients.

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  2. Hi Fahri,

    Would just like to point out that the article you linked didn’t actually claim that their disappointment with the Bar Council was the reason why they left legal practice.

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    1. Dear Faith,

      You are correct. He did not say so in his piece I inferred it from the first sentence of his self-description, which reads as follows:

      “Jason Kang had recently completed pupillage and decided to cease a career in legal practice. He is a critic of the Malaysian legal profession’s rigid adherence to hierarchy, its gratification of inhumane work conditions and its inability to adapt to a changing world and technologies, and new approaches to work.”

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  3. Hi Fahri,

    Thank you for your reply. However I do think it presents a misleading view about Jason’s article to preface a piece with the conclusion that the Bar Council’s shortcomings drove him to leave, based on two points, that (a) he wrote an article focusing on the priorities of the Bar Council (whether or not his views are justified), and (b) he has chosen to cease pursuing a career in legal practice. I think that it is unfair to causally link the two, and for people to throw insults based on that. I am inclined to think that it is just one of his many frustrations with legal profession, and his article was just a focus piece on the BC.

    I realise it’s a small point but I am only commenting on this because upon glancing at his self-description before reading the article, I assumed that the article would tell us what Bar Council did to make him leave legal practice, but upon actually finishing and understanding the article I realised that I had assumed wrongly. I don’t believe his intention of writing the article was ever to blame the Bar Council for his decision. I see his frustrations with BC as ancillary at best.

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