Speech by Steven Thiru, President of the Malaysian Bar at the Taylor’s Law School
2015 Awards Ceremony (27 Mar 2015)
A very good morning to
Mr Harmahinder Singh, Dean of Taylor’s Law School;
Dr Tamara Joan Duraisingam, Deputy Dean of Taylor’s Law School;
Mr Harcharan Singh, Deputy Dean of Industry & Enterprise;
Lecturers;
Students;
Distinguished guests;
Ladies and gentlemen;
It is a privilege for me to be here today to speak at the 2015 Taylor’s Law School Award
Ceremony. I am particularly pleased because of the long association that the Malaysian Bar
and I have had with Taylor’s Law School, harking back to the days when the Law School was
housed in the Taylor’s College campus in SS15, Subang Jaya.
Over the years, members of the Malaysian Bar have participated as judges in moot
competitions organised by Taylor’s Law School. We have been pleased to see generations of
your students perform admirably on their feet as fledgling lawyers, with the assistance of
your dedicated academic support team. The standards we saw on display were undoubtedly a
testament to the high quality education at the Law School. Many of your students are today
Members of the Malaysian Bar and are employed in some of our leading law firms. This
should undoubtedly be a source of pride to the Law School.
Further, the Malaysian Bar and selected law firms sit in the Law School’s Industry Advisory
Panel; and meet on an annual basis to discuss how to ensure that the teaching and learning
initiatives are of high calibre, and to ensure that students are equipped with the required
intellectual, professional as well as personal attributes that are demanded by the legal
profession. This Advisory Panel, as far as I know, is unparalleled, and serves as an important
bridge of knowledge and experience between the legal profession and the Law School. It has
fostered a special relationship between two important stakeholders in the law (the profession
and academia) that is today much needed to narrow the ever-widening gap and the disconnect
between the teaching of law and the requirements of law firms. The Advisory Panel is, in my
view, a model of cooperation that should be emulated and practised by other institutions of
higher learning involved in the teaching of law.
The Malaysian Bar is also very pleased to have members of the teaching faculty of the
Taylor’s Law School serve as invited members of one of the committees of the Bar Council,
namely the Ad-Hoc Committee on the Common Bar Course. This is a Committee that has
been working on a pioneering blueprint for the post-graduate vocational training of all new
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entrants to the Malaysian Bar. The Common Bar Course is akin to the leading Bar Courses in
the United Kingdom and Australia that focuses on the practical aspects of the law. Your
Dean and my good friend, Mr Harmahinder Singh, is a distinguished member of the Bar’s Ad
Hoc Committee on the Common Bar Course Committee. He has journeyed with us over the
past six years in the crafting of the principles, policies and syllabus for the Common Bar
Course. The Bar is very appreciative of his immense contributions.
It is also to be noted that in 2011, the Malaysian Bar together with the Law School organised
an international conference called Conference on Legal Education in this campus. The
conference, which was the first of its kind, was part of the Malaysian Bar’s initiative to
generate discourse on the Common Bar Course amongst all the stakeholders in the legal
profession in Malaysia. It was a gathering of some of the leading minds from the
Commonwealth on the best practices of training of law graduates for the legal profession. It
was a resounding success and again, the Malaysian Bar is grateful to the Law School for so
graciously hosting the conference.
In 2013, the Malaysian Bar was again honoured to participate in a forum held here entitled
“Legal Education in Malaysia, The Way Forward” where my predecessor, Christopher
Leong, and I spoke on legal education and the Common Bar Course.
Ladies and Gentlemen, I have raised these matters at the very outset of my speech because I
believe the Taylor’s Law School and Taylor’s University deserve to be commended for their
progressive and visionary efforts in legal education, and the innovative steps that they have
taken in developing a bond with the legal profession. On behalf of the Malaysian Bar, I wish
to place on record our appreciation to the Law School and the University, and we look
forward to continue working together in our common goal of excellence in legal education.
Permit me now to address the graduates this morning who have successfully completed their
Year 1 and Year 2 studies in the Law School, and who will either proceed to Year 3 at
Taylor’s Law School or articulate to universities in the United Kingdom to complete their
education. All of you should be proud to be associated with Taylor’s Law School, and the
pedigree education that you have received. You are beneficiaries of a good foundation in the
law, and you are on the threshold of achieving your aspirations to become lawyers. There are
obviously still some difficult and challenging paths to traverse. However, I am confident that
your experience at Taylor’s Law School will hold you in good stead and has prepared you for
the task ahead.
As you are about to embark on this new journey of learning, experience and maturity, I
thought I should share with you and give you my insight into: first, what the law should
always be for you; secondly, what you should be if you choose to be a lawyer; and thirdly,
one aspect of the “legal profession” that awaits you in Malaysia as a challenge.
The Rule of Law
I begin with what I consider to be an all-permeating feature of the law that sets out the
parameters of all laws. It is conveniently encapsulated in the phrase “The Rule of Law”. I do
not propose to embark on an academic discourse of what is the jurisprudential or substantive
content of the Rule of Law. Instead, I intend to focus on what the Rule of Law should always
connote to all who aspire to be members of the legal profession. If I may put it differently,
sans written laws that govern lawyers, is there an unwritten constitution that enjoins and
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binds all lawyers? It is my view that there is such an unwritten code and it is within the
meaning of the Rule of Law that I wish to propose to you today.
The late Sultan Azlan Shah was a great proponent of the “Rule of Law” and his immortal
pronouncement in 1977 that Malaysia is founded on “a government of laws, not of men”1
destroyed any notion that the Rule of Law is to be equated with rule by law.
More recently, Lord Neuberger, President of the Supreme Court of the United Kingdom, said,
It is right to begin by reminding ourselves that legal practice has an important context
not shared by other occupations. Lawyers have a special position in society not
because they are loved or because they are particularly admirable people, but
because they are responsible for the rule of law. That is true whether they administer
law as judges, advise on law as legal advisers or act as advocates in courts and
tribunals, whether independent, or employed. The rule of law is fundamental to a
modern society. The rule of law requires laws which satisfy certain criteria: they
must be clear and accessible, they must protect society and they must recognise the
fundamental rights of individuals against each other and against the state.
However, such laws are valueless unless they are also a practical reality, and
therefore the rule of law also requires that all citizens have access to justice, and by
that I mean effective access to competent legal advice and effective access to
competent legal representation.2
Next, Paul Shieh, the Chairperson of the Hong Kong Bar Association, said,
Rule of Law means far more than just blind adherence to laws - respect for an
independent judiciary, the need to ensure minimum contents of laws in terms of
human rights protection, respect for the rights and liberty of the individual when law
enforcers exercise their discretionary powers are examples of requirements of Rule of
Law which go beyond just obeying the law. In fact it can be said that over-emphasis
of the “obey the law” aspect of “Rule of Law” is the hallmark of a regime which is
keen on using the law as a tool to constrain the governed, rather than as a means to
constrain the way it governs.3
The Honourable Michael Kirby, formerly Justice of the High Court of Australia, said,
It is when the law protects the poor, the powerless, the vulnerable and the unpopular
that it knows its finest hour. It is when the system of government provides for, accepts
and implements such decisions that we can say that the society is a rule of law
society. It is so when judges feel constrained to reach, and give effect to, decisions
that might be unpopular and might upset powerful interests in society. It will be so
1
[1977] 2 MLJ 187 (Federal Court), per Raja Azlan Shah, FCJ, echoing the words of Justice Marshall in
Marbury vs Madison (supra).
2
Lord Neuberger, President of the Supreme Court of the United Kingdom, speaking on “The Future of the Bar”
at the Conference of the Bar Councils of Northern Ireland and Ireland in Belfast on 20 June 2014.
3
Paul Shieh, speaking on “The Role of the Advocate in the Protection of Human Rights and the Rule of Law” at
the World Bar Conference in New Zealand on 5 September 2014.
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even where the outcome in the particular case is upsetting to the judge because it
seems unfair.4
The principles identified above are found in Lord Bingham’s seminal thesis “The Rule of
Law”, which should be compulsory reading. His Lordship usefully outlines the scope of the
Rule of Law as follows:
(1)
The law must be accessible and so far as possible intelligible, clear and
predictable;
(2)
Questions of legal right and liability should ordinarily be resolved by
application of the law and not the exercise of discretion;
(3)
The laws of the land should apply equally to all, save to the extent that
objective differences justify differentiation;
(4)
The law must afford adequate protection of fundamental human rights;
(5)
Means must be provided for resolving, without prohibitive cost or inordinate
delay, bona fide civil disputes which the parties themselves are unable to
resolve;
(6)
Ministers and public officials at all levels must exercise the powers conferred
on them reasonably, in good faith, for the purpose for which the powers were
conferred and without exceeding the limits of such powers;
(7)
That adjudicative procedures provided by the state should be fair;
(8)
The existing principle of the rule of law requires compliance by the state with
its obligations in international law, the law which whether deriving from
treaty or international custom and practice governs the conduct of nations.5
It is important to note that the codification of the Rule of Law for the Malaysian Bar is set out
in, section 42(1) of our Legal Profession Act (“LPA”) 1976, and particularly as follows
states:
The purpose of the Malaysian Bar shall be –
(a)
(g)
to uphold the cause of justice without regard to its own interests or that of its
members, uninfluenced by fear or favour;
…
to protect and assist the public in all matters touching ancillary or incidental
to the law;
Now, when one pulls together the various strands of principles above, the answer to the
question what should the Rule of Law be for the lawyer and the aspiring lawyer becomes a
4
The Honourable Michael Kirby, formerly Justice of the High Court of Australia, speaking on the topic “The
Rule of Law and the Law of Rules: A Semi-Sceptical Perspective” at the 15th Malaysian Law Conference on 29
July 2010.
5
Bingham, Tom. (2011) “The Rule of Law” Penguin.
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little clearer. In its pure form, the Rule of Law is the spirit and the soul of the law, and
the omnipresent conscience of the lawyer and those who aspire to be in the law. It
provides in broad terms a salutary value system that is to be obeyed under all circumstances.
Put differently, it is a critical reference point or a benchmark that should never be ignored.
The Rule of Law requires lawyers and aspirants in the law to be prepared to be faithful
servants to the cause of justice and the needs of society, often at personal disadvantage or
peril. In this way, the Rule of Law defines the calling to be a lawyer and becomes a guiding
light and a badge of honour for all of us who call ourselves lawyers.
It is therefore imperative that at this early stage of your journey in the law that the Rule of
Law be carved into your hearts and minds and never to be forgotten. Ultimately, it is the
Rule of Law that should define you and govern your conduct as a lawyer and a member of
our honourable and noble profession.
Professionalism
Distinguished Guests,
Permit me now to move to the second part of my speech. It is about what is required of a
lawyer, and those who wish to become lawyers. It is professionalism. Here, I again rely on
Lord Neuberger who said,
What marks professionals out is a commitment to certain standards of behaviour,
founded in ethics and best practice… Those standards of behaviour have long been
recognised by the courts. Sir Thomas Bingham MR, as he was at the time, famously
discussed those standards of behaviour in Bolton v The Law Society. While he did so
specifically in the context of solicitors, he also stated that the same ethical principles
and standards applied to both solicitors and barristers. He also famously stated that
every solicitor (and therefore every barrister) had to be a professional ‘of
unquestionable integrity, probity and trustworthiness’ who could ‘be trusted to the
ends of the earth’… Lawyers have to be capable of such trust because the public
interest and public confidence in the profession – a profession whose independence,
integrity, probity and trustworthiness is essential if we are to maintain our
commitment to the rule of law – requires it. It requires it without qualification.6
It is to be immediately noted that professionalism in the context of the law and the legal
profession is connected to or flows from the Rule of Law. The requirement that a lawyer
should be a person “of unquestionable integrity, probity and trustworthiness” who could
“be trusted to the ends of the earth” is at the core of professionalism. Thus, professionalism
demands commitment to the law and the pursuit of the law that is founded on upholding strict
ethical values in the discharge of the duties and responsibilities as a lawyer. As against this is
the age-old indictment by Jonathan Swift in his book, “Gulliver’s Travels”, that lawyers are
“a society of men (and women) bred up from their youth in proving by words multiplied for
the purpose that white is black and black is white according as they are paid.” It is
professionalism, based on ethical values, that negates such negative perceptions of lawyers.
6
Lord Neuberger, in his speech entitled, “The Ethics of Professionalism in the 21st Century” for the Inner
Temple Lecture Series, 22 February 2010.
5
Now, what should professionalism mean to a budding lawyer? Before this question is
answered, perhaps it is apposite to enquire who is responsible for ensuring this
professionalism. In this relation, the Chief Justice Felix Frankfurter of the Supreme Court of
the United States observed,
... in the last analysis, the law is what the lawyers are. And the law and the lawyers
are what the law schools make them.7
In this regard also, Professor Jeffrey Brand, Dean of the School of Law at the University of
San Francisco, said,
It seems to me that the answer is to make sure that what you do with students, both
inside the classroom and outside the classroom, creates lawyers that understand in
their guts what it means to do the right thing… If you can start to create in their
head a sense that they can be a good professional, make a good living and pay back
their debt while at the same time being an ethical professional concerned for others,
I think you can start to turn around some of these issues that seem so distressing.8
It is therefore clear that law schools cannot absolve themselves of the responsibility of
creating awareness for, and ensuring, professionalism. However, that responsibility is also
one of every person who decides to read law. In this regard, I would suggest some of the key
elements of professionalism that anyone pursuing the law must have are as follows:
1. An understanding that the legal profession is steeped in history, culture and
tradition, and that the practice of law is animated by these features;
2. A capacity for honest, conscientious and diligent hard work in acquiring
knowledge of the law, eschewing all short-cuts or compromise;
3. A willingness to learn, re-learn and continue learning in a lifelong pursuit of
knowledge given that the law constantly evolves and is seldom static;
4. Acknowledging that time is the “stock in trade” of the lawyer and therefore
discipline, focus and time-management is paramount in the law;
5. A good grasp of language and vocabulary, as tools of communication, are
indispensable in the discharge of the functions and responsibilities of the lawyer;
6. A need for practical and common sense approach to legal issues that lead to
pragmatic and workable solutions for clients;
7. Integrity and a strict adherence to ethics and ethical rules because of trust reposed
in lawyers by members of the public and the public interest element in the practice
of law.
7
Letter from Felix Frankfurter to Mr Rosenwald (May 13, 1927) (on file with the Harvard Law School Library).
Brand, J Hennessey, M (2007) Ethics and the Legal Profession – Conversation with Jeffrey Brand, Dean of the
School of Law at the University of San Francisco. Retrieved from
http://www.carnegiecouncil.org/education/005/interviews_with_educators/0001.html.
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I do not intend this to be an exhaustive list of the requirements for professionalism for
students reading law. However, these are essential attributes that cannot be denied as they go
to the making of a true professional in the field of law. Anyone who aspires to be a lawyer
must subscribe to these basic elements and ignore them to their detriment.
I end this part on professionalism and how it should mould you as a lawyer by recalling the
famous words of Justice Hidayatullah,
A lawyer is a kind of person who may be born, but a lot of making goes into a real
lawyer and in the end he is rather made than born.9
Liberalisation
The final part of my speech concerns a new challenge that will confront all new entrants into
the legal profession in Malaysia. On 3 June 2014, the Legal Profession Act 1976 was
amended and the Legal Profession (Licensing of International Partnerships and Qualified
Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014 came into force. With
this, foreign law firms and foreign lawyers are now permitted to practise in Peninsular
Malaysia. There are now three categories of licenses in the new Part IVA of the LPA,
namely; foreign law firms may operate either an international partnership with a Malaysian
law firm, or a qualified foreign law firm (“QFLF”). Alternatively, a Malaysian law firm may
choose to employ a foreign lawyer.
An international partnership is a partnership between a foreign law firm and a Malaysian law
firm while a QFLF is a stand-alone foreign firm which does not require a Malaysian law firm
as a partner.
International partnerships, QFLFs and individual foreign lawyers employed by Malaysian
law firms will only be allowed to practise in the permitted practice areas. This is defined as
“work regulated by Malaysian law and at least one other national law, or regulated solely by
any law other than Malaysian law”. In the case of a QFLF, such aspect of work regulated by
Malaysian law must be undertaken in conjunction with one or more advocates and solicitors
of the High Court of Malaya holding a valid and subsisting Practising Certificate.
Practice in the permitted practice areas will specifically exclude: constitutional and
administrative law; conveyancing; criminal law; family law; succession law, including wills,
intestate succession, probate and administration; trust law, where the settlor is an individual,
and the law relating to charities and trust foundations, whether the settlor is an individual or a
corporation; retail banking, including corporate or commercial loans to small and medium
enterprises; registration of intellectual property; appearing or pleading in any court of justice
in Malaysia, representing a client in any proceedings instituted in such a court or giving
advice, whether or not the main purpose of which is to advise the client on the conduct of
such proceedings (with certain exceptions); and appearing in any hearing before a quasijudicial or regulatory body, authority or tribunal in Malaysia (with certain exceptions).
9
Justice Hidayatullah, formerly Chief Justice of the Indian Supreme Court, from his book, “A Judge’s
Miscellany”.
7
One of the further amendments made was to section 37(2B) of the LPA on “fly-in fly-out”,
which will now allow a foreign lawyer advising on non-Malaysian law to be able to come to
Malaysia and work on a project for up to 60 days in a calendar year, subject to immigration
approval.
Another amendment was to insert a new section 37A to the LPA, which will allow foreign
lawyers to enter Malaysia for arbitral proceedings. These are new developments. They
change the entire landscape of the legal profession.
A major consideration undergirding the new legislation is a desire to ensure that the
liberalisation of the Malaysian legal services market and the entry of foreign lawyers is
balanced with the need for the development of Malaysian law firms, and to enable these firms
to achieve a level of expertise that will allow them to compete with foreign law firms on a
level playing field. This consideration means that the process of liberalisation will continue
to be gradual and progressive.
What does this mean to new entrants to the legal profession? Liberalisation brings with it
new challenges as well as opportunities. The challenge lies in being able to compete with
foreign lawyers who may well have the depth of knowledge and experience not presently
possessed by local lawyers. However, this should not be viewed negatively. Indeed, it
should be seen as an opportunity for all local lawyers to “up their game” and strive to bring
themselves on par with the foreign lawyers. The Malaysian Bar has never shied away from
challenges, and I am confident we will manage and overcome this new challenge.
Liberalisation should also be seen as an encouragement for the new generation of lawyers to
venture into new markets beyond our shores. For too long, lawyers in Malaysia have
operated in a comfort zone, seemingly oblivious to the changing world around us. It is time
for all of us to follow the path of our counterparts in foreign jurisdictions and venture into
new horizons. Many of them have succeeded and I am confident that you, the future lawyers
of Malaysia, will also succeed.
Closing
In conclusion, on behalf of the Malaysian Bar, I wish to again thank Taylor’s University and
the Law School for allowing me the honour of delivering my maiden speech as President of
the Malaysian Bar this morning.
To the students, I hope I have enlightened you on what the law is about, and what you must
be if you choose the law as your vocation, and what you can be as a 21st century lawyer in
Malaysia. I encourage you to courageously pursue your dreams and ambition in the law.
I wish you success.
Thank you.
Steven Thiru
President
Malaysian Bar
27 March 2015
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