Rule 62. Waiver.Wither, Tun Salleh Abas? For nearly three years, the former Lord President was hoping to move on. Not move up, just move on. He wanted to rejoin Salleh Abas, Yaacob & Sofiah, the small legal firm that he established in Aug 1993, five years after his controversial dismissal as Lord President of Malaysia, as a Consultant.
The Bar Council may, in writing, with the approval of the Attorney General in writing, waive any of these Rules ...
The rules require him to get the approval of the Bar Council of Malaysia so the firm wrote to the Executive Director of the Bar Council, Ms Catherine Eu, on 27 Feb 2006 requesting that the Bar allows the Tun, who had left practice in 1995, to rejoin the firm as a Consultant.
Bar Council secretary Mr Regunath Kesavan wrote a reply on 3 March 2006 to express its regrets and drew the firm's attention to Rule 60 (1) of the Legal Profession (Practice and Etiquette) Rules 1978.Rule 60. Use of "consultant" and "associate"Long Silence
(1) An advocate and solicitor may have his name appear as "consultant" on the letterhead of a firm of advocate and solicitors if:
(a) he has a valid practising certificate issued under Part III of the Act;
(b) he has been -(i) in active practice at the Malaysian Bar for a period of not less than 20 years; or(c) he is not a partner of legal assistant in any other firm of advocates and solicitors or engaged in any other capacity in any such other firm in the State of Malaysia.
(ii) in active practice at the Malaysian Bar for a period of not less than 10 years and, in addition, has served as a Judge or a member of the Judicial and Legal Service for a period which, aggregated with the period of his active practice at the Malaysian Bar, total not less than 20 years; and
The firm, in its reponse dated 14 March 2006, informed the Bar that former judge Datuk K.C. Vohrah had been allowed to rejoin the legal fraternity as Consultant even though he had never been in private practice either before or after service on the Bench.
Mr Regunath Kesavan did not respond to this letter. Instead, Ms Eu, the Bar's Executive Director, wrote a short reply to say that the Bar will refer the matter of Tun Salleh's request to its Legal Profession Committee.
Neither Saleh nor his firm heard from the Bar again after that, which prompted the former Lord President on 14 February 2007, a year after his original request to the Bar Council, to write a letter to the Attorney-General. Saleh was still full of hope that perhaps Tan Sri Abdul Gani Patail could afford him similar dispensation given to K.C. Vohrah from strict compliance of Rule 60(1).
Gani Patail's office wrote back to the Tun two months later on 17 April. It informed Salleh that the AG could only provide dispensation if the Bar Council applies its discretion, which is provided for under Rule 62 of the Etiquette Rules 1978 (refer to the first paragraph of this posting).
Ambiga says No
The AG's letter also informed Salleh that it had contacted Bar Council President Ms Ambiga Sreenavasan (now a Datuk) about the request. Apparently, Ambiga had told the AG's office that the Bar Council intended to adhere strictly to Rule 60 (1).
On 27 Dec 2007, Salleh Abas' firm wrote to Ambiga, drawing her attention to the earlier correspondences between the firm and the Bar Council, the letter to the AG and Gani's response to the Tun, and for the first time directly urged the Bar to apply Rule 62 and that the same privilege extended to Vohrah could be extended to Tun Salleh.
There was no reply, so another letter was sent to Ambiga on 14 January 2008.
On 12 February, Ambiga wrote to the firm to say that "the Bar Council is not in a position to acceded to your request" in the light of Rule 60. However, she said the Bar Council has decided to liberalise Rule 60 and has submitted a proposal to the AG to amend that Rule. The matter was now under consideration by the AG, she added.
The next letter from Salleh's firm, dated 19 Feb, reflects a growing frustration on its part.
"Respectfully, we are of the the view that it is not a question of the Bar Council not being in a position to acceded (sic) to our request but more of its unwillingness to do in light of the Legal Profession (Practice and Etiquette) Rules 1978 which reads as follows:The Bar Council may, in writing, with the approval of the Attorney General in writing, waive any of these Rules."Furthermore, if the Bar Council's stand is not to waive compliance of Rule 60, how does it explain the admission of our good friend and former Court of Appeal judge Datuk K.C. Vohrah as consultant in a KL firm despite him not having met with the aforesaid Rule 60 requirement?"
Ambiga does not respond
There was no response from Ambiga, so the firm wrote in again on 21 March. It got a response from Mr Lim Chee Wee, the Bar Council's current ecretary, who wrote that the Bar was liaising with the AG's Chambers to revise Rule 60 and are aware of the Datuk K.C. Vohrah precedent.
On 1 April, the firm wrote to Mr Lim Chee Wee, in what appeared to be its longest letter so far, tracing back the chronology of Salleh Abas' simple request starting from the first letter dated 27 Feb 2006 right up to Ambiga's apparent opposition on the matter.
Mr Lim wrote on July 22 to inform the firm that proposed amendments to Rule 60 together with Salleh's application to be a Consultant would be tabled in August.
In a 23 July letter, the firm noted the development with "some optimism" but placed on record "our disapoointment at what we feel a rather double standard effort on the Bar Council's part".
Bar Council tells Salleh to submit fresh application in March 2009!
On 9 October, Mr Lim of the Bar Council wrote to say the Bar had approved the proposed amendments to Rule 60 and that the amendments were expected to be gazetted "in due course". Based on said amendments, Tun Salleh would fulfill the requirements of Rule 60 on 24 March 2009. Mr Lim went on to suggest that Tun Salleh submit a fresh application after 24 March 2009.
Salleh Abas turns 80 next year. To say that he is dissapointed with the Bar Council is an understatement. A close friend of the Tun told me that the former Lord President felt cheated, betrayed even. The Bar had no qualms about using the Lord President's name and person to champion its cause, but was not willing to help him in a matter that it has discretion to.
The Firm's last letter was sent to the Bar Council early this week. Excerpts:
"Our Tun Salleh read your (9 Oct) letter ... with great disbelief.
"In our several correspondences with the Bar Council over this matter, we have often alluded to the fact that in at least one instance (involving YBhg Datuk K.C. Vohrah), the Bar Council had evidently utilised its discretion under Rule 62 ... to allow an "unqualified" (under the said Rules) person to be a consultant to a legal firm.
"Our Tun Salleh is of the view that the Bar Council's decision not to utilise similar discretion in the case of his application amounts to a rather despicable practice of double standards."
BRU notes: During the hours we spent nterviwing him for his biography, the former Lord President made no mention of how the Bar Council had been treating him on this issue. If he had told us, we would have strongly advised him against attending the Bar Council's dinner, supposedly in his honour, in April.