by I Bernadette

First, my ethnicity is irrelevant — and I am not defending MayBank or/and its policies.

The fact that racial discrimination has been ‘cast in stone’ so to speak, into policies of organizations like MayBank, is nothing new. In Malaysia, corporations linked to the Government and not just MayBank have fine-tuned the art of racial discrimination to a heart beat.

What is new in the case of MayBank in its latest ruling is that it would appear to be encroaching on the principle of free speech as protected by our Federal Constitution of 1957 — asking that law firms hoping to deal with it be first majority-owned by a certain class of Malaysians based on race. What right has MayBank got to go around telling private individuals who go into business as partners, how profits on their earnings are supposed to be distributed among them, what equity participation they should have in their private ventures and what internal policies they should or should not follow? Isn’t this the responsibility of private individuals as free citizens?

But at least MayBank has been forthright on the issue by making public its policy. Others are less so if they ever do. Apparently it arises out of MayBank’s genuine desire to comply with what after all is government policy.

Since the issue is one basically of racial discrimination against certain categories of lawyers based on race, in favor of one class of Malaysians vis-à-vis the others, one cannot be faulted for asking whether the proper forum ought not to be the country’s legislative body responsible for such laws i.e. Parliament and not MayBank.

Consider this. For a law firm looking to do work for a bank even on an ad hoc basis, the partners would have to work hard — ‘working hard’ means in most cases many hours on the golf fields at prestigious clubs scattered not only all over the country but overseas with its team of ‘enablers’ if you will where business deals are made. This acts to automatically exclude most of the small to medium law firms with their limited resources, limited experience (on the golf fields rather than in any field) and limited track record as a firm because they are new and the partners are young.

Consider also the ‘process’ it involves.

Contrary to what is popularly believed, the bank’s manager in charge of legal affairs has minimum input into the selection of lawyers and law firms seeking to be of service to the Bank. The Legal Manager only represents the face of Management when deciding the matter of who gets on to the bank’s panel. Nevertheless, it is true that in many of the cases where the law firms do not meet the bank’s criteria, the Legal Manager actually decide at his level, and without more — unless the application has been submitted nearer to the primary source of decision making.

If the issue is simply one of whether the law firm meets the bank’s criteria, where is the need to have such simple and routine matter referred to the bank’s CEO and his committee for the exercise of his or her discretion? Does this not smack of favoritism, nepotism and other isms all of which are irrelevant to the issue of what or which best protects the bank’s and, therefore, the public’s interest?

Here is where the matter enters a more controversial stage of the process. Here is where the Bank through its CEO gets to handle the ‘sensitive matters’ like political connection to individuals serving on important sounding committees of some important political party (it need not always be UMNO or UMNO related – meaning the MCA in many cases) or a connection to the Royals but never the Mohammads and the Ah Wongs and the Moorthys who choose to do business the right way together, the Malaysian way, who are left to beg for business to make ends meet, collect the crumbs thrown at them and support their families. Sure, nobody owes these poor hardworking souls, irrespective of ethnicity or political affiliations, a living.

Consider this too. Property developers come to the banks with their list of solicitors on their panels who have handled the work of sale and purchase of properties they sold. It would be misleading to suggest that banks have full control over who among their lawyers get to do the work of protecting their security interest. Their clients the property developers would at this point have already struck a deal with their lawyers about the bank work that is coming. It does not take a rocket scientist to figure out the ethnicity of these lawyers.

So to suggest or imply that a bank like MayBank has full control over which law firms get to do the work, is to ignore the facts. To apportion blame based on this alone is wrong.

‘Conveyancing’ work is seen by the lawyers as the most lucrative area of their practice, routine and less risky to themselves and the banks because of the practice of boilerplate drafting — in fact in almost all cases it represents the bank’s own security documentation internally generated but printed on the firm’s stationery. Relating the risk exposure of banks, under those circumstances, to the ethnicity of the lawyers assigned to protect their security interest is not only irrelevant but wrong.

If the public is genuinely interested to get at the truth, ask for the disclosure by MayBank of the names of law firms doing their work based not only on ethnicity of lawyer-partners, their equity participation, and ethnicity of lawyer-employees but also the amount of work, the number of cases they actually do, its relative size to the total work available for distribution and work including those not available for distribution — and their value in money terms.

What you discover would pale in comparison with such narrow issues like preferential treatment or discriminatory practices based on race as a factor.

What of the collusion between government and big business — irrespective of race?

Where and how do ordinary working class Malaysians many of whom are in support of the DAP’s objective of helping working class Malaysians of any race, struggling to support their families, fit in?