I was shocked and surprised by the headlines of the Malay Mail on Jan 4, 2013! It said, \’Don\’t emulate Delhi lawyers\’. The advice was proffered by the ex-Chief Judge of Malaysia. This column is my response on this matter of global significance.

I totally support the New Delhi lawyers who issued a statement that \”they will not defend the rapists!\” It is their fundamental right to do so, and they can recuse themselves for any reason of conscience, and it appears that that is what they have done, and said they will do.

I find it untenable that both the president of the Bar Council and the former Chief Judge cannot distinguish between the basic issues of morality and the principle of innocence until proven guilty! I write this column as my response to both of them. I am willing to organise a forum on the subject at the Royal Lake Club (many called to the Bar Council are members there), and I also volunteer to moderate that forum on \’Truth Matters\’, premised upon this column write-up.

The Hippocratic Oath and codes of ethics

My research on Wikipedia produced the following lessons for our learning:

\”The Hippocratic Oath is an oath historically taken by physicians and other healthcare professionals swearing to practice medicine ethically and honestly. It is widely believed to have been written either by Hippocrates, often regarded as the father of western medicine, or by one of his students. The oath is written in Ionic Greek (late 5th century BC), and is usually included in the Hippocratic Corpus.

\”Ethical codes are adopted by organizations to assist members in understanding the difference between \’right\’ and \’wrong\’ and in applying that understanding to their decisions. An ethical code generally implies documents at three levels: codes of business ethics, codes of conduct for employees, and codes of professional practice.

\”A code of practice is adopted by a profession or by a governmental or non-governmental organization to regulate that profession. A code of practice may be styled as a code of professional responsibility, which will discuss difficult issues, difficult decisions that will often need to be made, and provide a clear account of what behaviour is considered ‘ethical\’ or ‘correct\’ or ‘right\’ in the circumstances. In a membership context, failure to comply with a code of practice can result in expulsion from the professional organisation.\”

Malaysian codes of ethics

Since the Hippocratic Oath has been adopted by the medical community worldwide, all other professions have also recognised the need to create or evolve their own codes of ethics to guide the conduct of their members. Therefore for instance, the Prime Minister\’s Office (PMO) has a code of ethics well-articulated since 2000. So has the Society of Social Counsellors. This list goes on and on for those interested. Please Google and find out!

My question, therefore, to the Bar Council and the former Chief Justice (who also oversaw standards of ethics for Umno, once) is: \”where in the code of ethics for the lawyers does it say that they have to defend a case they do not believe in?\”

An important global principle of morality was established after the post-World War Nuremberg Trials. Adolf Eichmann was found guilty of manslaughter for his role in \”merely following orders\” of Adolf Hitler in \”killing the Jews\”.

Eichmann, speaking in his own defence, said that he did not dispute the facts of what happened during the Holocaust. During the whole trial, Eichmann insisted that he was only \”following orders\” – the same Nuremberg Defence used by some of the Nazi war criminals during the 1945 – 1946 Nuremberg Trials. He explicitly declared that he had abdicated his conscience in order to follow the Führerprinzip.

Eichmann was sentenced to death, and until today is the only one ever to be sentenced to death in Israel. I am sorry to say this, but the arguments of both the former Chief Judge and the president of the Bar Council appear as if they do not understand the core issue of this violent and obvious rape case against the backdrop of truth of matters on the grounds in India.

India, like Malaya, is a highly feudalistic environment wherein ladies are treated like second-class human beings. Therefore, there have been even greater emotional reactions about the possibility of \”prevalence of this culture of rape.\” In fact, in one CNN interview, a lady lawyer from India even stated that she is genuinely worried that the case could be hushed up, or one eye closed on the seriousness of the offence.

The Blind Lady of Justice

Under the British justice system, adopted both in Malaysia and India, the presumption of innocence is the cardinal rule and arbiter of the entire process of judicial integrity. That is also why in earlier columns, I have vociferously argued that the Automated Enforcement System (AES) changes that presumption away from innocence to guilt. But unlike that, the only qualified damage in the Indian court hearing is that the six parties were charged in court, but there would not have been any legal representation on the part of the defendants.

Even so, the judge will assign that role to any lawyer or law firm and the legal fraternity is duty-bound to serve in the cause of justice. Such representation on behalf of the cause of the judicial process is only what they are sworn to uphold, but nothing more or nothing less.

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Justice globally must always remain colourless and colour-blind. That is why the ‘Lady of Justice\’ is blindfolded. In India, like in Malaysia, currently we have a culture of rape wherein we sometimes close one eye to the cause of the true and truth justice, because we have a feudalistic interpretation of the argument that: \”we are only obeying orders!\”

As the Nuremberg Trials judge ruled, in matters of truth, right, and wrong, there is the element of the human conscience and this is as good an arbiter of right and wrong without the need to blindly follow bad orders and do what is wrong in every culture of the world.