'Do not emulate Indian Bar'
Malaysian lawyers reminded it is their duty to uphold justice
Friday, January 04, 2013 - 15:19
THE Malaysian legal fraternity is questioning the decision of their New Delhi counterparts in refusing to defend the men accused of savagely raping a 23-year-old medical student on a moving bus.
The savagery of the assault that eventually led to her death last week had enraged India and the world.
Sanjay Kumar, a member of the Saket District Bar Council, had said no lawyer would defend the five accused, as it would be "immoral" to do so.
As such, the accused would have to rely on advocates appointed by the Indian government, in what will be a fast-tracked trial, that legal observers say is fuelled by passion instead of justice.
Former chief justice Tun Zaki Azmi said "like it or not, it is the duty of lawyers to uphold justice".
"As a practising lawyer, you have to distinguish between your personal or public emotions and politics," he said. "You cannot assume the accused is guilty and should not get a fair defence."
Zaki said lawyers had always been the first to say that a person is presumed innocent unless proven otherwise.
He questioned why the lawyers were acting the way they were.
Malaysian Bar Council president Lim Chee Wee was surprised that the accused rapists were unable to obtain legal representation despite an "independent and strong Bar in a modern democracy such as India".
"Assuming the same ethical standards apply, a lawyer is obliged to act unless he is embarrassed, in a position of conflict or does not possess the necessary skills or relevant experience," he said.
"A lawyer must never be equated, identified or associated with his or her client's cause."
Asked if the decision could have been made due to fear of reprisals, Lim said lawyers must never be intimidated.
"We are the last frontier of justice and everyone needs legal representation to ensure due process is satisfied," he said. He advised the members of the Bar not to emulate their Indian counterparts.
Should such an incident happen in Malaysia, Lim said, the Bar would find a lawyer to represent the accused as provided by legislation.
"The rule of law means access to justice and the presumption of innocence and we have to live up to that," he said.
Women's Aid Organisation executive director Ivy Josiah said the Saket Bar Council's response set a dangerous precedent.
"We have to uphold the right of legal representation, because if it falls down, then even the innocent will not receive that right," she said.
"Lawyers have a moral obligation to provide legal representation – a core part of the justice system – no matter how difficult it is."
Malaysian Human Rights Commission (Suhakam) commissioner Muhammad Shaani Abdullah also said that in principle, an accused must receive the services of a lawyer.
"Regardless of one's position (in the Bar Council there), it should not be imposed on other lawyers who want to represent the accused," he said.
"Everyone will be moved by these events, but the accused have rights," he said.
"We have our own personal feelings but we must be objective and deal with the issue."
He called on all to act beyond their emotions.