JULY 12 — The Malaysian Bar refers to a recent social media posting made by Mohd Rafizi bin Ramli ("Rafizi Ramli”), the Minister of Economy, in the lead-up to the Sungai Bakap by-election on July 6, 2024.

In his social media posting, Rafizi Ramli commented on a lawyer representing a foreigner who was arrested and charged in Malaysia for trafficking firearms and possessing ammunition.

The Malaysian Bar finds the comments made by Rafizi Ramli concerning due to the denigrating nature of these comments towards the legal profession. His comments also strike at a deeper issue, which concerns the concept of due process and the need to strike the right balance between the freedom of expression and the right to a fair trial. There is an existing stigma against lawyers, as exemplified by Rafizi Ramli’s comments. Lawyers are seen as providing their services to the highest bidder, and will do everything within their means to get their clients off the hook. Such a perception of the nature of legal work amounts to a misunderstanding of what lawyers actually do. The duty of a lawyer is to provide a voice to clients in need of representation. This entails building a case for the client within the confines of the law. The lawyer does not add or subtract the facts of a case and only acts on the instructions of the client. As such, the lawyer is completely neutral. While some level of sympathy with a client’s case is necessary in order to present the case from the client’s perspective, this does not mean that the lawyer identifies with the client.

The concept of due process in the Malaysian context calls for the determination of guilt or liability by a judge (or other officers assuming a judicial capacity), after the hearing of a case has been exhausted. This means that the power to rule over cases lies exclusively with judges. When members of the public or the media comment on the possible outcomes of cases that a judge is currently hearing, it could amount to a breach of the sub judice rule. Although the Malaysian Bar is a staunch advocate of the right to free speech, such a right should not come at the cost of prejudicing one’s right to a fair trial. By commenting on the lawyer and his foreign client, Rafizi Ramli has prematurely called the innocence of the client into question before the case has been disposed of by the courts.

A key element of the right to a fair trial is the right to legal representation. The right to legal representation is enshrined in Article 5, Clause 3 of the Federal Constitution. This right ensures that any person who is compelled to appear before the Malaysian courts is guaranteed the services of a lawyer.

Other Common Law jurisdictions practise what is known as the "cab-rank” rule, whereby lawyers cannot refuse to represent a client seeking their services, save in very limited circumstances. Although Malaysian lawyers are not required to observe this strict rule, Rule 2 of the Legal Profession (Practice and Etiquette) Rules 1978 places a positive professional obligation on them to provide their services to a client, if they are proficient in that area of law. Unless there are special circumstances hampering the lawyers’ ability to provide their services, lawyers should not reject a client in need of legal representation. To do so would be tantamount to depriving the client of the right to a fair trial. The fact that the accused in this situation is a foreigner should not deprive him of legal representation. The lawyer named by Rafizi Ramli is merely discharging his duty by providing a voice for his client before the courts of Malaysia. The principle of the rule of law, which is in our Rukun Negara, requires that the Malaysian criminal justice system runs its due course, regardless of the accused’s origin. To do otherwise would be to decide that the accused is guilty before the case is even heard.

The Malaysian Bar calls all parties to cease the mischaracterisation and the insinuation of lawyers as being unethical, while in the course of conducting their regular duties. Lawyers should be able to provide their services without fear or favour, and free of baseless prejudices.

Mohamad Ezri b Abdul Wahab

President

Malaysian Bar

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.