Are Bar Council elections based on Equality?
The way the Bar Council is elected does not reflect equality. More than 60% of the members of the Bar get no more than 11% influence in Bar Council’s decisions. This is because Bar Council makes many decisions on behalf of its members. Can this be improved?
Is every vote cast by each member of the Bar of equal strength?
Does every vote, cast at any State in the Peninsular, carry the same effect?
That is the question.
The Bar has always been an upholder of equality
The law requires the Malaysian Bar to:
‘uphold the cause of justice… uninfluenced by fear or favour’: sec 42(1)(a) Legal Profession Act 1976.
The Malaysian Bar is required to:-
‘represent, protect and assist members… and to promote… the interests of the legal profession in Malaysia.’ [Sec.42(1) (e)]
In all its frenetic – often sacrificial – efforts in upholding the rights of every citizen of this country, the Malaysian Bar has no parallel in the world.
So busy has it been that this same Bar seems to have forgotten, for a while now, the affairs of its own members.
Composition of the Bar Council
The Bar Council is made up of 36 elected members (for the moment let us leave aside the immediate past President and Vice President, who each have a seat in the Council).
That leaves 36 members.
Each state is entitled to two seats.
The Chairman of each State Bar and the State Representatives of the twelve States make up 24 seats in Council.
The other 12 members are elected directly.
That makes 36.
For the moment, the immediate Past President and the immediate Deputy President do not figure in this calculation.
Do the majority get a majority say?
By October of this year, the total number of advocates and solicitors in the Malaysian Bar (excluding Sabah and Sarawak who have their own Legal Societies) is in excess of 19,000.
Of that number, Perlis has 61 members. It gets two votes in the Bar Council.
So also Terengganu, which has just over 400 members.
The KL Bar has more than 8,200 members. It gets two votes in Council.
The Selangor Bar has just over 5,500 members. It gets two votes too.
Selangor and KL combined, command the votes of more than 13,800 practitioners.
That is 73% of the Malaysian Bar.
How many votes do these giants influence at the Bar Council’s decisions?
Eleven percent, more or less.
Is that fair?
Does that uphold the principle of equality?
That is the question.
Do you want to see the numbers? Here they are:
Section 70(7) of the Legal Profession Act
This long-festering problem lives in sec. 70(7). It states that at the State Bar elections:-
‘… shall elect one member of the State Bar to represent the State Bar on the Bar Council’.
This inadequate formula was enacted 42 years ago. Times have changed. If the Bar perpetuates this formula, that would be to breach the equality provision of Article 8(1) of the Constitution, which states:-
(1). All persons are equal before the law and entitled to the equal protection of the law;
(2). Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of [the]… carrying on of any trade, business, profession, vocation or employment.
Is a member of the Bar a ‘citizen’? Is he or she ‘carrying on’ a ‘profession’?
So, is a legal practitioner entitled to equality?
Which legal practitioner will say, ‘No’?
Montesquieu, said, ‘The love of democracy is that of equality.’
He was the father of the concept of ‘One person, one vote’.
The concept of equality is all pervasive.
The Venice Commission is the Council of Europe’s advisory body on constitutional matters. In 2002, it published guidelines how constituencies ought to be delineated in national elections. It recommended that, first,
‘There shall be equal voting power and seats must be evenly distributed between the constituencies.’
There is another body from which we can derive guidance. It is the Reid Commission. It was set up in 1957 to create a lasting template – one that would become the legal and ethical engine of the new Malaysia.
The Commission recommended how national elections should be conducted.
The Reid Commission – which worked on the principle of equality – drew its principles from Montesquieu.
The Commission recommended that the formula for the fair distribution of constituencies between each state ought to be ‘on the basis of population and the electorate’.
It did this by creating the ‘Electoral Quota’ or ‘EQ’.
The Reid commission recommended that ‘electoral quota’ was the number obtained by dividing the population of the Federation by the number of constituencies. [Article 116(5) – the previous regime removed it from the Constitution to enable gerrymandering].
We’d do well to follow the Commissions’ recommendations.
As you can see, we are not short of parallel legal precedents.
So why isn’t this ‘equality’ principle being applied in Bar Council’s elections across the Peninsula?
What happens if we apply Reid Commission’s EQ Formula?
If we apply this formula to the Malaysian Bar, we note that 19,000 members represent all the States in the Peninsula.
To get what the EQ of the Malaysian Bar, one has to divide the total population of lawyers (19,000) by the number of states (12).
That equals 1,583.
That is the EQ for Peninsula.
Let us work out a formula using the EQ
We start by making the (mathematically artificial) assumption that any state that has 1,583 or less lawyers receives one State Representative. (Even if the number of lawyers is as little as 61 in a State, as a matter of principle we grant that State one ‘State Rep’ seat. This is an advantage to the State, and we should concede that advantage).
Any state that has more than 1,583 members will receive a number of Representative equivalent to its EQ. (Inasmuch as we grant one seat to Perlis which has 61 members, this latter grant of greater number of seats to Klang Vally lawyer’s is a fair proposition, and well deserved).
Let us see where this Formula gets us
Since Perlis has 61 members, it is less than the EQ of 1,583: yet it shall receive one State Representative.
Penang has 1,808 members. To get its number of State Representatives one had to divide 1,808 by 1,583. That equals, roughly, one.
Selangor has 5,500 members. Divide that by 1,583 that gets us to just over three and half. So Selangor should get four State Representatives.
Kuala Lumpur has 8,200 members. Divide 8,200 by 1,583 and that equals 5.19 members. We shall have to round it off to 5.
That should bring the total number of State Representatives to 19. This would be a fair distribution.
The current section 70(7)
That subsection now reads: –
After the election of the State Bar Committee the meeting shall elect one member of the State Bar (who need not be a member of the State Bar Committee) to represent the State Bar on the Bar Council:
Provided that where the Chairman of the State Bar Committee elected pursuant to subsection (4) is also the current President or Vice-President of the Malaysian Bar, the meeting shall elect two members instead of one under this subsection.’
The Bar should amend it as follows
I propose that the wording of section 70(7) should be amended as follows: –
(a). After the election of the State Bar Committee the meeting shall elect such number of State Representatives (who need not be members of the State Bar Committee) to represent the State Bar in the Bar Council;
(b). The number of State Representatives for each State shall not be less than one and not be more than the nearest whole number to the Electoral Quota of the Malaysian Bar;
(c). The Electoral Quota of the Malaysian Bar shall be obtained by dividing the total number of advocates and solicitors in the Malaysian Bar by the total number of States in Peninsular Malaysia;
(c). Each State shall be eligible for that number of State Representatives equivalent to the nearest whole number to the Electoral Quota.
Provided that where the Chairman of the State Bar Committee elected pursuant to subsection (4) is also the current President or Vice-President of the Malaysian Bar, the meeting shall elect one more State Representative.’
What has not been taken into account
If the Malaysian Bar accepts the proposed formula, the total number of Bar Councillors will then increase to 45.
Of that at least 8 States fall far below the EQ of 1,583 members.
I have not ‘disturbed’ the one ‘automatic seat’ every State Chairman has in the Council.
Nor have I questioned the 8 ‘State Rep’ seats in those States.
That accounts for 16 seats out of 45 seats, which reflects a massive 35% of Council votes.
The influence of the Directly Elected 12 members has been excluded from this proposed formula.
Direct election accounts for 30% of the Bar Council’s elected representatives.
It cannot be predicted with mathematical precision which member from which State might be directly elected into the Bar Council through the Direct Election process.
Well, what are we waiting for?
The Bar Council needs to call for an Extraordinary General Election.
It needs to obtain members’ mandate to apply the proposed formula.
If the EGM approves it, then the necessary proposals may be made to Parliament – through the offices of the Honourable Attorney General.