by Wan Zafran Pawancheek
Published January 16, 2017
Malaysia has a peerage system of sorts.
With it comes titles. Some among us would then bear appellations of honour – ‘Datuk’, ‘Dato’, ‘Tan Sri’, et cetera.
Coincidentally or otherwise, many of these ‘peers’ also happen to be advocates, who openly insist on or expect to be addressed by their title while in court.
In one instance, I’ve even seen an advocate correct the judge and insist on being addressed as a Dato’, even though this advocate’s investiture had reportedly taken place just one day (!) before.
Such practice of using titles in court is improper. Some reasons:
Titles force inequality. Advocates aspire to equality before the law. Yet titles confer (purported) dignity, merit, class or rank to a fortunate recipient – who is then deemed, in society, a station above others not of like ilk. This goes against equality at law.
Titles can give false impressions. A title sometimes implies experience and wisdom. Yet advocates bearing title(s) aren’t always more experienced, or wiser, or ‘better’. The use of titles may thus mislead.
Titles can become an unethical form of advocacy. Judges are but human; they may find themselves swayed by titles (whether unconsciously or otherwise), and may even give undue weight to those bearing titles, even though titles have nothing to do with the merits of a particular case.
Honest advocates should thus avoid using titles as they go about their duties.
Our rulings sternly forbid an advocate from demanding that he be addressed by his title in court - see Bar Council Ruling 11.08 (“Use of titles in court, judgments or orders”):
“…An Advocate and Solicitor need not in court, address or refer to another Advocate and Solicitor by title conferred upon the latter. Correspondingly, an Advocate and Solicitor who has been conferred a title should not request, require, expect or insist that he be addressed or referred to, in court, by his title.”
This ruling binds advocates and solicitors: see s. 77 (1) of the Legal Profession Act:
“…the Bar Council may, with the approval of the Attorney General, make rules for regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors…”
And see also s. 77 (3) of the Legal Profession Act:
“…Any advocate and solicitor who fails to comply with any rules made under this section may be liable to disciplinary proceedings.”
The above ruling is sadly more often honoured by its breach rather than its observance; I’ve lately come to think that many advocates may not even realize that the ruling exists, much less why.
Our judiciary has discarded the use of their titles in court orders.
This practice has been in place since 2010 - see Pekeliling Ketua Pendaftar Bil. 4 Tahun 2010 (‘Panduan Pemfailan Deraf Perintah Dan Penghakiman Perintah Penghakiman Bersih Dalam Prosiding Di Mahkamah-Mahkamah Seluruh Malaysia’):
“…Gelaran Hakim seperti Yang Arif, Datuk, Datin, Ir, Hj, tidak perlu dinyatakan. Nama-nama Hakim dan Pegawai yang tertera pada perintah atau penghakiman adalah nama Hakim dan Pegawai sepertimana yang disenaraikan di dalam laman web rasmi Pejabat Ketua Pendaftar Mahkamah Persekutuan Malaysia di alamat www.kehakiman.gov.my. “
If even the Bench itself has seen it fit to pursue this commendable line of practice, then members of the Bar ought to follow.
As a matter of practice, I tend to advise litigants, no matter how high-ranking, to discard their personal titles from their court intitulements and affidavits. Their doing so not only conveys humility, but also confidence: for only the weak and insecure would demand the unnecessary artifice of a title as they stand judged before the law.
Disclaimer: I express no views as to the necessity/value of titles in society - only in court, where equality before the law should not just be practiced, but also be seen to be practiced.