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Oleh/By		:	DATO' SERI DR. MAHATHIR BIN MOHAMAD 
Tempat/Venue 	: 	HOTEL MERLIN, KUALA LUMPUR 
Tarikh/Date 	: 	31/10/83 
Tajuk/Title  	: 	DI PEMBUKAAN PERSIDANGAN 
			UNDANG-UNDANG MALAYSIA KE-7 




Encik S. Sivasubramaniam, Pengerusi Majlis Peguam; Dif-Dif
Kehormat; Tuan-tuan dan Puan-puan.

Saya mengucapkan terima kasih kepada Majlis Peguam Malaysia kerana diberi
peluang berucap di Persidangan Undang-Undang Malaysia ke-7 ini. Tahun lalu
saya hanya berpeluang bersama tuan-tuan dan puan-puan di majlis makan
malam, tetapi tahun ini diberi peluang pula membuka Persidangan ini. Di
sini saya akan mengambil peluang memberi beberapa pandangan mengenai
masyarakat peguam dan undang-undang di Malaysia.

Ladies and Gentlemen, 

2. All my predecessors as you know belonged to the same discipline as
yours, and I would consider them, therefore, fortunate for every time they
were in your midst, they were certainly not strangers. Our first Prime
Minister was even more fortunate as his deputy was no less learned in the
same discipline. It is certainly understandable that those with the legal
bias would be more inclined to entertain the conviction that in democracy,
the rule of law can best be maintained and defended only by leaders who
are learned in the legal profession.

3. Your discipline is law and mine is medicine. However both demand the
highest degree of integrity. As individuals, both make mistakes for it is
only human to err. Some say lawyers write them while doctors
"bury" them. I would prefer to say that the mistakes of lawyers go six
feet up while those of doctors go six feet down. However, I am not a
practising doctor any more. For better or for worse, I am now very much
involved with the law, or more precisely in law-making. My mistakes can no
longer be buried. They are too exposed to avoid public scrutiny. And so it
is incumbent upon me to avoid mistakes as much as humanly possible. That
means, of course, that the Government must be extremely careful.

4. I am told that among lawyers there is the belief that they are the
watchdogs of the private citizens against encroachments of the
Executive. However, they must admit that in this day and age, they do not
have the sole monopoly of the watchdog role. Various groups have cropped
up who are equally concerned over the exercise of authority by the
Executive. In a democratic society the most pertinent and most effective
watchdog is the electorate themselves. They are the ones to choose the
Government and in the final analysis they are the sole authority to bring
it down. Other bodies may claim to be more intelligent and knowledgeable,
but in a democracy they cannot impose their will on the majority.

5. But a democracy also provides a role for the minority. They will not be
ignored. They will be heard. They will influence decisions. Indeed they
are acknowledged as an integral part of the democratic process. But they
may not negate the wishes of the majority.

6. That is why I stated in my last speech to you that the Government is
willing to listen to the advice of the Bar Council. It will take such
advice seriously. Whether the advice is given before, during or after is
not of absolute significance. Indeed the Government has been known to
amend laws because of criticism after the law has been implemented. It is
never too late to correct. Many were the unfortunate people who were
hanged for stealing lambs in England before it dawned on the British that
it was a miscarriage of justice. Many have been hanged all over the world
before the people of the West suddenly felt it was morally wrong to take a
life. But as soon as the mores changed, the laws were changed to
accommodate it.

7. The point that I am trying to make is that you will be given a hearing
whenever the need arises. If possible we will listen to you before
legislating. But sometimes it is not possible to do so. As I said it is
not too late.

8. I have met your representatives over the latest piece of legislation
that you are not happy with. You have also submitted your comments and
advice in writing. The Government will consider all the points raised. But
as I have said before, advice is good counsel which may or may not be
accepted. The Government will do its best to accept but you should not be
too disappointed or discouraged if it rejects the advice.

9. The present administration is anxious to provide a high standard of
service. We have adopted the slogan "bersih, cekap dan amanah" or "clean,
efficient and trustworthy" as our slogan. We will endeavour to live up to
this slogan.

10. Needless to say, such a slogan should not be confined only to the
Government if this country is to progress. Everyone should try to adhere
to these excellent principles. Certainly the professionals in the private
sector have a duty to make the national slogan meaningful. As a
professional body, the Bar Council is duty bound to oversee the
professional behaviour of its members. In some countries, the legal
profession has fallen into disrepute because ethics have been thrown aside
in favour of quick gains. Some make this profession only a side-line as
they moved into more lucrative business. There is no way we can stop
lawyers and other professionals from foresaking their professions, (I am
myself a culprit) but the fear is that the only lawyers left will be young
lawyers. Like all young people they will be more impetuous. It is
essential that older lawyers take a greater interest in the profession and
in the professional bodies such as the Bar Council. It is important to
remember also that the Government will have to tap the private sector for
judges -- and judges must come from among the older members of your
profession.

11. I observe that one of the papers to be discussed at this Conference is
on Emergency Powers and the Rule of Law. You are of course entitled to
your views but it is important to remember that emergency powers are
designed for a special situation. Strictly speaking emergency implies a
short term need, but as you know, the British taught us that emergencies
can last for years and years. Since we have borrowed so much of their
laws, we see no reason to reject the Emergency Powers given the situation
that we are in. While you and I are quite safe in this hall, a lot of our
soldiers are fighting in the jungle, fighting a very real war in which
death can come quite suddenly and limbs lost through booby traps and the
like. If things seem calm in the populated areas, it is because the forces
are sweating it out in the jungles and the Emergency Powers are being
enforced. By all means criticise the Emergency Powers but do not forget
that we do have a real emergency on our hands. We have been quite liberal
and tolerant lately. But as the Malay saying goes "Give the calf and you
will be asked for the thighs". At one time when we were not so liberal we
were asked to be a bit liberal. Now that we are, we are told that it is
not enough. We need to do more. Indeed we are expected to abolish powers
of detention and emergency laws completely.

12. Preventive detention seems to be quite unacceptable to a lot of
people. But to those who are threatened, it does not seem too
unreasonable. It would be interesting to study the result of releasing
avowed terrorists and homicidal maniacs among society. No matter how much
we wish to believe in the essential goodness of everyone, the fact still
remains that hardened psychopathic criminals, murderers and terrorists do
exist. For them the kind of laws that deter others are quite irrelevant.

13. Anything that we do must be related to the environment that we live
in. The laws of a society are not exempt from the need to suit their
environment. We may study law in England or Australia or elsewhere, but
although the principles can be accepted, the practice cannot be totally
adopted. Malaysia is a developing country where average earnings are far
below that of developed countries. What this means is that Malaysia can
only afford the laws that are within its means.

14. In western countries, litigation is very popular. Everyone sues
everybody else as he feels he can make something out of it. Thus if you
sprain your ankle coming down the stairs of a friend's house, you sue
him. If a doctor misses something during his examination, you sue the
doctor. Of course you sue the Government for everything under the sun.

15. The sums that you sue for have grown faster than the rate of inflation
in Argentina. There is a feeling that the power to sue will ensure a safer
society. This is unfortunately a form of self deception.

16. The money that the litigant gets must come from somewhere. If the
insurance pays, it simply means you will have to pay a bigger premium. As
the award increases, so will the premium. In the end, the cost to a
society given to litigation will be much more than the protection the law
is supposed to afford. But in addition to this cost to society, service
would actually be poorer. It is well known that doctors will not go to the
aid of an accident victim in case he may be sued for something or
other. And of course if you see a doctor, he is likely to carry out all
the tests in order to avoid any possibility of being sued for
negligence. All these of course cost money -- a lot of money. In the final
analysis society has to pay a high price for becoming a litigious society.

17. I am mentioning this because there is a trend towards more litigation
for bigger awards in Malaysia. There is a tendency to forget that Malaysia
is not a developed country. It cannot afford the kind of awards that make
headlines. It is wrong to think that it is only the insurance company
which will pay the cost. In the long run it is the society which has to
pay. Should Malaysia become a litigious society long before it can afford
it, than a lot of poor people are going to suffer. I hope that the
lawyers, the Bar Council and everyone else concerned will give this matter
some thought.

18. Apart from litigation, there are other practices in foreign countries
which lawyers think should be adopted simply because other countries
practise them. Of late exposures are popular. We have the saga of the
Pentagon Papers and the revelations of the names of CIA agents.

There is a rather naive assumption that all that needs to be done to solve
problems is to expose them to the public. To them if the nation is
endangered or secret agents killed, that is a small price to pay. But
events have shown that nothing is to be gained by such exposures. Indeed
more damage is done by them than otherwise.

19. I would like to suggest that we do not accept everything that is done
by the so-called civilised and advanced countries as being perfect. They
are far from being so. In fact there is evidence of a lot of
disillusionment with their own systems, values and mores of the developed
countries. What is good for General Motors is not necessarily good for the
country. What is good for Europe and America is not necessarily good for
Malaysia. So please think carefully first before suggesting that western
mores should be applied in Malaysia without regard for the peculiarities
of the environment in which we live. We may be actually retarding the
development of Malaysia by prematurely adopting mores and ethics that are
foreign to us.

Ladies and Gentlemen, 

20. We have associations, societies and organisations which bring together
members of particular trades, interest groups or professions. The legal
profession in Malaysia has the Bar Council. In relation to bar councils, I
am attracted to a statement made by a lawyer in a weekly magazine recently
that bar associations are acting more as trade unions for lawyers,
protecting the lawyers' interest, rather than being responsible to the
needs of society. I do not really subscribe to such an opinion, but we
ought to ponder a while, and take this in a positive light. Any
association for that matter will only attract membership if, and only if,
it can protect the interest of its members. But once it is established, an
association has also to consider and adjust to its environment.

21. In this country, there is no denying that there are always people in
need of justice, but legal costs may deny them justice. The Government has
realised this and has set up the Legal Aid Bureau for the small
man. However, the government may not be able to do much. It is restricted
by funds and also by personnel. Here individuals and interest groups like
the Bar Council will be able to play a more meaningful role by extending
their service to the small man.

In this regard, you may deliberate on ways and means to make justice
accessible to as many of our fellow citizens as possible. This is more the
social responsibility of lawyers for the general welfare of the public. I
have made such a call to other associations as well. I hope this call will
not be construed as specially addressed to the legal profession in this
country. I am confident that you will not take this in its negative sense,
but rather in the spirit of serving the well-being of all Malaysians.

Ladies and Gentlemen, 

22. With the gathering of such active and learned minds, you will
undoubtedly not fail to have very useful and fruitful discussions. I now
take great pleasure in declaring this 7th Malaysian Law Conference open.

Thank you.

 



 


 











 
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