THE Malaysian Bar will boycott the opening of the legal year (OLY) proceedings today after its president was snubbed in a move George Varughese termed as “muzzling” of the lawyers’ group by the judiciary.

Since 2010, the chief justice, a representative from the Attorney-General’s Chambers and the president of the Malaysian Bar have addressed the OLY – as equal partners in judicial administration – at the annual ceremony that ushers in a new legal year. 

The attorney-general’s invitation to speak has also been rescinded.

“This year, we were informed by the court that at the OLY 2018 ceremony, only the chief justice (Raus Sharif) will be giving a speech,” Varughese said at the Bar’s own opening of the legal year held at the Royal Lake Club in Kuala Lumpur yesterday. 

Varughese, who headed the Bar in March 2017, said the change in format – from three speeches to one – diminishes the involvement and role of the Bar in OLY. 

“Had we taken part, we would be little more than invited guests. This amounts to a muzzling of the Bar and raises the question of whether this change in format is a result of some concern about what the Bar would say.  

“The Malaysian Bar has always acted and spoken without fear or favour and as such, when asked to speak, we will endeavour to say what needs to be said,” he said.

The Bar notified the court of its decision, and “conveyed” its “hope” that OLY 2019 will once again include speeches by a representative of the A-GC and the Bar president.

Last night, Varughese alluded to events in 2017 which might have led to the rescinding of the invitation to address OLY 2018.

On October 10, the Bar filed an originating summons at the Kuala Lumpur High Court against Raus and the current president of the Court of Appeal Zulkefli Ahmad Makinudin, seeking declarations that their appointments are void and unconstitutional, and orders seeking their removal from their respective offices. 

The summons was also directed against former chief justice Arifin Zakaria, for the advice given to the Yang di-Pertuan Agong on the eve of the former’s retirement in appointing Raus and Zulkefli as additional judges. 

The appointments were made purportedly pursuant to Article 122(1A) of the federal constitution on the advice of the outgoing Arifin to the Yang di-Pertuan Agong, and the extension of their tenures as the chief justice and president of the Court of Appeal, for a further three and two years respectively, beyond the constitutionally prescribed age limit of 66 years and 6 months. 

The Bar deemed the move as unconstitutional on five grounds:

* It is unconstitutional for the former chief justice to have advised on the eve of his retirement the appointment of Raus and Zulkefli, who were serving as sitting judges;

* Article 122(1A) of the federal constitution does not permit an outgoing chief justice to advise the king on appointment of additional judges that is to take effect after the former has retired;

* Any such advice given by an outgoing chief justice would also unconstitutionally encroach upon and usurp the duties and powers of the serving chief justice;

* Raus and Zulkefli are holding their positions beyond the constitutionally prescribed age limit; and, 

* Prime Minister Najib Razak acted unconstitutionally, relying on an erroneous interpretation of the constitution in advising the king on Raus’ and Zulkefli’s appointments.

“The Malaysian Bar has never shied away from taking a stand when it comes to preserving and protecting the rule of law, and upholding the supremacy of the constitution,” Varughese said. 

“This has meant that we find ourselves in unenviable positions: as we are in today having dinner at the Lake Club.”

For the rest of the year, Varughese said, the Bar will continue to push for the abolishment of the death penalty, to call for the repeal of the provisions for whipping in the Sexual Offences Against Children Act 2017, to push for “holistic amendments” to the Law Reform (Marriage and Divorce) Act 1976 and to defend the independence of the judiciary. 

“While we expect, therefore, to still contend with the residual effects of these attacks on the rule of law for years to come, it is important to focus on several developments that we look forward to this year.

“As a partner in the administration of justice, it is imperative that we do not tire of the work that we do, and that which is still left to be done. It falls on us to do our best to reconcile the tranches before us.” – January 12, 2018.