If you are a new or fairly new legal practitioner like me the closest you will get to oaths in your practice would be when you accompany a client over to a commissioner of oaths to have an Affidavit sworn (that’ll be 10 ringgit for the affidavit and further 5 for each exhibits) or Statutory Declaration and no actual oaths uttered by the said client but the Commissioner's rubber stamp deems it so.
It is either that or when you
have a witness in the witness stand with his or her right hand raised, reading
from a laminated piece of paper swearing to tell the truth and nothing but the
truth. Most of the time I’d use the time to double check their witness
statement so that I can test whether they are telling the truth later during
cross-examination or if it is my witness, whether there are additional
questions to be slotted in somewhere. There always are.
In both cases whether it is
before Commissioner of Oaths or swearing in on the witness stand, it is just a
formality. Just something you had to do. There is no meaning or- even if there is one the meaning is long gone or only known to a few. That is oaths in practice for me so far.
Some time back, when I still had
that embers of idealism burning somewhere, I spoke to my mentor about the
admission oath I’ve seen in The Rain Maker. I asked, how come we don’t have the
same kind of thing going on in our jurisdiction. Sure the Americans are big when
it comes to their constitution. Just ask the gun-totting 2nd
Amendment zealots. In the aforesaid movie it was the part of swearing to defend
the Constitution that gets me all warm and fuzzy, and thinking.
Protecting the (Federal)
Constitution
The Law is our stock and trade as
practitioners and setting aside the question of Syariah Laws for a while, the
Federal Constitution is the highest law (man-made law if you want to go there)
of the Land. However, I find it odd that us legal practitioners do not have to
swear to protect it when most laws we practice be it land law, criminal law,
civil or even tax law derives its validity from it. Maybe because for most of
us, it is an abstract concept, not a line of thinking worth pursuing owing to
its little to none effect to profit or bottom line. That alone should be a good
reason for a regular reminder of the relationship of legal practitioners with
the Federal Constitution.
A timeless ritual for a new
age
We have seen the legal profession
to be slow in adopting to changes. Emails had been part and parcel of
practicing for sometime and it took COVID19 pandemic for the decisions to be
handed down by way of email out of necessity. Now, it’s a convenient choice.
Prior to COVID19, online hearings were unheard of, now it is a norm. As for
admissions to the Bar, during the pandemic lockdown, long calls were by way of
ZOOM calls with the parents or spouse doing the robing of the newly minted
member. Point being, great changes have been made in the ways we practice the
law. Great progress some would say. With progress comes the shedding of the old
and the new things put in place. Oaths, admission oaths to be exact to my
knowledge is not a practice common to our jurisdiction but it can be a new one.
Enjoining the Good, discouraging
Vice
In the lands where the Anglos had
set foot and had colonists shipped in by the boatloads, the admission oaths most of the time consists
of expression of loyalty to the King or Queen of England. In a quainter age,
the bulk of the admission oath consists of denouncing the Pope and heirs of the
Stuart line. Just look at the Canadian admissions
oath but it should not be an issue here in Malaysia. Though we share the
Common Law, their King is not our own. We have our tengkolok wearing,
kris-kissing High King of our own. Our own way to making High Kings out of
Sultans with nary a need to denounce anyone or anything.
In my correspondence with Fahri
over the matter of admissions oath the issue of why cropped up and my answer is
as follows:
‘’the time for the Old Breed
of lawyers and old ways of practicing the Law is ending, it is time for the
new. Yet, some things are timeless. Things like values. These values must
remain entrenched and restated over and over again because in this age of light
speed communication, AI and smartphones we tend to forget the important things
especially things we cannot put a price tag on like values.
The oath is a
reminder for the new members and the old ones that there are lines we do not
cross in our pursuit of bill payments and whatnot. This oath is an
attempt to restore or rather to remind us the meaning of being a legal practitioner
and that money while important is not the sole reason why one should become a
legal practitioner.’’
And further:
‘’The modern age have diluted
the power of words. But, the right words, at the right place, at the right time
can imbue us with meaning and purpose. Maybe let us call the oath, An
Advocate's Oath to make it applicable each and every member of the
Bar so that instead of only pupils newly admitted to the Bar, all members of
the Bar would raise their right hand and take the oath at every call.
Imagine Fahri, a court room full of lawyers taking the oath. For
every pupil making the solemn oath, it marks the crossing of a threshold
for them and at the same time, it is akin to handing them a to-do and not to-do
list albeit in a ritualized manner. For every mover or master present, it is a
reaffirmation of their duties. For the layperson attending, it would be their
exposure to their rights as a client when hiring a lawyer and the
responsibilities their lawyers owe to them and to fellow lawyers. Hopefully,
some if not all the words of the oath would take root, remain lodged
in their head like the lyrics of a favourite song and could become one of the
things that keep them straight and narrow.’’
The discussion on admissions oath
with Fahri culminated with the drafting of the oath itself or rather, in the
words of Fahri: Why don’t you draft one? So I did. What I came up with was cumbrous
and monstrously archaic just like my proposed accompanying ritual which involves
the Judge pounding his gavel (if he has one) thrice and declaiming aloud:
Bound! Bound ye all for all time!. Cumbrous, like I said. Thanks to Fahri, the
oath matures into something that is common to all lawyers regardless of seniority,
and without the drama. It became the Advocate & Solicitor’s Oath. He wrote
about it here.
In this cynical age where even religion
and beliefs are subjected to commodification (re: billboards advertising the
sale of Air yang dibacakan 30 Juzuk Al Quran some time back), a way must be
found, that ‘’something’’ to uphold the common values like honesty, courage and
integrity without having to resort to sermonizing to one’s own flock the same
old tired sermon. A timeless ritual that transcends race, religion or age and
yet shared by all practitioners. I believe the Advocate & Solicitor’s Oath
to be just that. A constant reminder for practitioners, because for all the alarms
and reminders we set on our smartphones we remain forgetful creatures in
constant need of reminder.
Of course there is a danger that the Oath to be nothing more than lines to be parroted by all practitioners as and when necessary, like the Rukun Negara to schoolkids but us Legal Practitioners should never forget that words have power of their own. Their own magic. Especially words uttered aloud.
They bind you.
