Observations on wig use in Australia by a Malaysian lawyer

Dear Editor,

Observations on wig use in Australia by a Malaysian lawyer

I refer to the article by Mr James O’Neill which was published in issue Issue 55 entitled ‘The Wearing of Wigs: Past Time for a Fresh Look’ and the reply to it by Mr Ron Swanwick which was published in Issue 56: June 2012 entitled ‘Keep the Faith, Look the Part and Wear the Wig’. Having read these articles, I would like to share some views which have not been addressed by those advocating the abolishment of wigs in court by both judges and barristers. I am a practitioner from the Malaysian Bar which is a jurisdiction which dropped wig use for its judges in 1990. Being an Advocate and Solicitor of the High Court of Malaya, I have had the opportunity of seeing the effects of such abolishment in West Malaysia when the East Malaysian courts have kept their use on an optional basis. The general observations arrived at over here are that no great benefit has occasioned from the dropping of the wig and there are indeed members here who lament that great and honorable common law traditions are being forgotten without much regard to the views of lawyers opposed to the discarding of traditional dress and wig.

The dropping of the wig in Malaysia did not aid in the modernization of the court system or improve the administration of justice in any manner nor did it improve public perception of lawyers here. All these targets were achieved only by the improvement of legal services by speeding up the disposal of cases with significant improvements to the rules of court on practice and procedure, better post-qualification training and continuing professional development for lawyers, the improvement of the legal aid system and moves to cut down on legal costs to make justice affordable and enhanced efforts to make the justice system accessible to disadvantaged, financially depressed and geographically remote communities.

It remains essential that traditional court dress and wig be maintained as these are traditions that are relevant that attract young people to the profession and presents a unique feeling to the wearers which binds them to the great and long history of the Bar and its milestones and past historical events spanning centuries. There is indeed a need for lawyers in the Commonwealth of Nations to maintain the judicial and court wigs. England and Wales has discontinued their use but only with regard to judges in the Civil, Commercial and Family courts on 1st October 2008 but Barristers and Solicitors will continue to use them in all jurisdictions.

My brief research reveals that there are currently different rules on wig use and dress codes for lawyers in the states of Australia with many still favouring the retention of the wigs and traditional robes for judges and for lawyers in court. A brief overview reveals as follows:-

1) The District Court of Western Australia effective 27-11-2009 (revised 27-6-2011) vide Practice Direction Gen 1 of 2009 (‘Court Attire’) provides that lawyers are required to wear contemporary clothing in Chambers and for civil and criminal trials although the robes and jabots have been retained, wigs are not to be worn on all occasions for both judges and lawyers whether ceremonial or otherwise.

2) In New South Wales, it has been reported in the newspaper article ‘ Wigs lose Appeal but rule Supreme’ (The Australian, by Michael Pelly, August 03, 2007)that wigs are worn on all occasion in the Supreme Court and that the Court of Appeal although having decided otherwise would revert to full dress with wig but however wigs would not be retained in the N.S.W. District Courts.

3) In the state of Queensland, the Supreme Court of Queensland retains the full use of wigs and gowns in all matters.

4) In the Northern Territory Supreme Courts and Magistrates Courts, wigs and gowns are only worn by Judges. Red robes and wigs are worn for criminal matters and special ceremonial sittings and black robes without wigs for civil matters.

5) In South Australia, Direction 5.7 of the Supreme Court Practice Directions on ‘Barristers Attire’ provides that wigs will only be worn in criminal proceedings and on ceremonial occasions.

6) The Federal Court of Australia does not allow the wearing of wigs on any occasion but robes are to be worn for all open court matters.

7) In Victoria, lawyers are to be robed and the Victorian Bar Professional Conduct, Practice and Etiquette Rules provides for the use of wigs for all open court proceedings. It also provides that in the Federal Court wigs are not worn and in courts where wigs are part of the formal dress of judges, some judges may nevertheless elect not to wear a wig. In these circumstances counsel may decide not to wear a wig or, alternatively, may continue to wear a wig if they prefer to do. No robes are worn in the State Magistrates Court or in tribunals.

8) The courts in Tasmania have retained full wig and robe use for its judges.

Proposals for the abolishment of wig use in Australia and elsewhere have generally failed to consider the following missed issues and these are as follows:-

1) There is constitutional protocol supporting the use of wigs

The law courts being constitutionally the court of Her Royal Highness Queen Elizabeth II as the Head of State and being Her Royal Highness’s representatives, the Honourable judges deliver justice and hold court under regal and constitutional authority. Theoretically the dress protocol of Buckingham Palace in granting an official audience is not at variance from the dress protocol of the Courts of Justice in open court sitting session and in view of this the wearing of wigs and traditional robes in court in light of the use of similar headwear at the proceedings of palace affairs, matters and ceremonies has constitutional basis. Therefore the institution of the law courts is not alone in adhering to this dress code with wig which is not outdated.

2) There is a need to avoid disparity in court dress

In some states in Australia, there is a difference in court dress in that the Civil courts are not wigged but the courts of the Criminal jurisdiction is. This disparity fails to recognize that the business of the Civil and Commercial court calls upon it to deal regularly and deliberate upon the lawful conduct of businessmen, company directors and even trustees of vast estates, as such the disparity in wig use may unintentionally give the unwarranted impression to the commercial world’s consumers of legal services that the Civil or Commercial court is less stringent than the Criminal court in requiring compliance with its orders, decrees and injunctions.

3) The absence of wigs will not assist in enhancing court decorum and is instead counter-productive

The creation of very many Commonwealth countries and their Courts with which the Common law is a shared and common heritage includes robe and wig use. Along with Australia, this is still the case in Africa and the Caribbean. In the state of Victoria in the Commonwealth of Australia, the Family Court which had been set up in the 1970’s with a dress code which excluded wigs had to have them restored to official use in 2003 to counter the lack of discipline and respect showed by litigants which naturally followed suit.

4) There is a cottage industry system employing people in the wig making industry

There is presently also an industry employing people which has co-existed with the law courts in supplying judges and practitioners of the law with their requisite wigs. The wig is made from horsehair and is a source of employment for procurers of this ingredient from rural China right up to Britain and also France which also manufactures them in a cottage industry system. Wigs for court use are also made in Australia. Any such abolishment of wig use in the courts would have adverse implications on this industry which employs people and preserves traditional hand-working methods which even international agencies such as UNESCO would want protected if this is brought to their attention (For example ‘Raymond Bredin & Son Pty Ltd’ in Australia and ‘Ludlows of Melbourne Australia’)

5) The wig equates practitioners

The wig apart from depersonalizing the advocate equates all advocates irrespective of race or gender in the profession. The removal of the wig has a tendency to bring unwanted attention to the hair styles worn by both judges and advocates in court. Moves to abolish totally the use of the court wig has its dissenters and does not appear to have overwhelming support from the younger practitioners especially Opinion polls do not completely capture the public sentiment.

6) The public have no difficulties in accepting the wig

Despite some views to the contrary the wig is quite popular with members of the public. And is popular with newly-minted barristers who have been “called to the Bar”. The bleached horsehair wigs, no longer worn in New Zealand courts or at Local Council meetings, are still the headwear of choice for law graduates being admitted to the Bar there. Wellington District Law Society Executive Director David M. Clarke says almost all the graduates attending the High Court ceremonies still opt to wear wigs. Such is the support for wig use even internationally(‘Ceremonial wigs worn by a succession of Wellington Town Clerks will soon be on the heads of the city’s fledgling lawyers.’- www.wellington.govt.nz/news’)

7) The court wig is observed to be in use in international tribunals

The court wig is part of legal attire which draws great international respect and has been observed in use in international tribunals such as the International Tribunal for the Law of the Sea where barristers have been in attendance and serving as registry officials, judges or as advocates. Wigged barristers acted for Malaysia in an international sea boundary arbitration with Singapore who were represented by British academics (‘Malaysian New Straits Times article entitled ‘Reclamation will have drastic impact’ and Malaysian New Straits Times published on November 7th 2007 on ‘Hearing on 28-year PulauBatuPuteh dispute begins’ where Barrister, Sir Elihu Lauterpacht representing Malaysia is seen wigged’) and very recently in the International Court of Justice hearing a serious border dispute between Cambodia and Thailand with regard to the World Heritage site of the PreahVihear temple where Sir Franklin Berman appeared for Cambodia duly wigged. (‘The Malaysian newspaper, The Star, Tuesday 31st May 2011’).

8) Expense is not an issue

Considerations of cost alone cannot outweigh the positive features of the wig as they are purchased only once in a life time by the wearer and have been known to be passed on for generations.

9) Shared Common law customs essential for the Commonwealth

Fragile democracies in the Commonwealth applying the Common law need to preserve shared common law customs and traditional court dress and wig as this forms an effective buttress against domestic pressures that may threaten the rule of law as understood under the Common law. The Common law as applied by the Commonwealth forms a bulwark of laws that fights for human rights and freedom of expression and thought and political and economic justice for all irrespective of religious affiliation, creed, class or gender. Disparity in court dress and customs in the Commonwealth will threaten this as court dress in the form of the full robe court and wig along with the Common law and its shared usage and customs is an essential and indispensable tool to maintain the fragile fabric of political, social, economic and juridical unity in the Commonwealth necessary for the well-being of these member nations. Australia can play a significant role in this be retaining all aspects of the Common law traditions including wig and robe use which will continue to be emulated by these other commonwealth countries with fragile democracies where lawyers there are seeking to protect human rights as recognized and applied by the Common law.

10) Younger members are fond of the wig

The former New South Wales Bar Association President Mr Michael Slattery who is now a judge of the N.S.W. Supreme Court, has said that the younger members there were more partial to wigs as was the case in Ireland where since counsel were given the choice a few years ago, it has been largely the older counsel who have left the wig in chambers.

An online public survey by the Law Institute of Victoria in Australia has found that more than half of those that responded believe that wigs and gowns should be worn in court (‘5th Nov 2003 Media Release entitled ‘To wig or not to wig? Public casts its vote’).

The full-bottomed wig is clearly very much a part of juridical culture and ought to remain as a unifying force and symbol. An example of the importance of the wig in court in the Commonwealth in New Zealand administered province of Kiribati where there is presently a call the donation of used wigs in light of the increase in demand there (‘Island lawyers seek wigs’ from the The New Zealand Herald dated Thursday Sep 25, 2008 ’).

11) Wigs dropped in some countries only on budgetary considerations

The Judiciary in Ireland have consented to moves by that country’s Justice Minister to amend legislation ceasing to make the wearing of wigs by judges there mandatory. The move was agreed to by Judges wholly on budgetary considerations on account of that nations austerity budgets. It remains to be seen however if Judges there will discard it as the new rules on court dress have the effect of making it optional. The Bar however is not affected by the new rules having voted themselves to make wigs optional and entirely at the choice of the individual (The Irish Times dated 15th Oct 2011 ‘High Court Chief believes Judges will end wig wearing’ and also BBC News ‘Ireland to scrap Judges’ wigs to save money’).

The Jamaican Judiciary have been urged to abolish wig use as budgetary constraints in Jamaica have also made it difficult for new appointees to that commonwealth nation’s Bench to obtain from them from the state (‘The Gleaner, Jamaica ‘Do away with the wigs’ dated Wednesday Oct 19th, 2011’).

12) The wig unites the regional and State Bars

Court dress and the wig unites the state judiciaries and bars and disparity in court dress and customs does not in any way aid in national unity. Proposals for modernization and the dropping of the wig canvassed to the Bar in Scotland but were soundly rejected by Scotland’s advocates in a survey (‘BBC NEWS, Monday, 14 October, 2002 ‘Advocates keen to keep wigs’). The Faculty of Advocates survey of its 440 practicing members found 80% of respondents wished to keep their distinctive courtroom dress. Mr Roy Martin, vice dean of the faculty, said members were happy to adhere to the strict code. He said:

“Our members agree that court dress provides advocates with an obvious symbol of their professional identity in the mind of the public and it represents a positive link with the best traditions in the practice of the law by the independent bar in Scotland.”

He added:

“Court dress in its current form is a long-established trademark, both within Scotland and internationally and it immediately identifies the wearer as an advocate. “To dispense with something which is instantly recognisable would be of no benefit to the legal professionor the nation as a whole.”

13) The Head of State’s views may have to be considered when seeking to change court dress and abolishing the wig

It may also be the position and there is strong argument for this, that the Head of State has the final say in court dress and ought to be consulted before any significant change in court dress is adopted. This is on account of the judges in the law courts being appointed by the Head of State(‘Auguring Well: Barristers; Judgment Day For the Wig’ on matters of consent for the reigning monarch as Head of State by The New York Times, Tuesday, July 15, 2008’).

14) The sentiments expressed by lawyers when the wig is dropped is one of sadness

The attachment of many practitioners in the various State Bars makes this a Pan-Australian issue. The Western Australian Supreme Court recently directed that wigs and traditional robes would not be worn and would be replaced by a black robe(‘Supreme Court of Western Australia, Media Release, 5 November 2009 JUDGES CHANGE TO MODERN COURT DRESS and The District Court of Western Australia NOTICE TO PRACTITIONERS on the abolition of wigs, dated 14 December 2009).

Western Australian Defence lawyer John Prior was quoted (‘WA judges ditch horsehair wigs’ PERTH NOW — SUNDAY TIMES, April 07, 2010) as saying as follows:-

‘some are opposed to the changes. Younger people, younger lawyers and students are saying, ‘It’s really sad, we were looking forward to being admitted as barristers and solicitors’,” he said.’

The Australian Associated Press had reported the views of Perth barrister Belinda Lonsdale who was quoted as saying that the wigs were symbolic and she liked the anonymity they provided.

She was further quoted as saying as follows:-

‘When somebody is going to tear away hundreds of years of tradition, I’m just not sure that it should be done by a unilateral decision of one person just because he (Mr Martin) happens to be in power,’.

Tom Percy QC also of the Western Australian Bar was also quoted as saying that the move was disappointing. He was quoted as follows:-

‘I’m a traditionalist, and I think it adds a certain dignity to the proceedings that is otherwise lacking,I think a lot of kids in law school aspire to the day they can put on a wig and it’s a bit disappointing for the younger generation who will never be part of that tradition.’.

(‘The Narrogin Regional Gazette, ‘No More Wigs’ and PERTH NOW — SUNDAY TIMES, ‘WA judges, lawyers to dump wigs’ and also ‘Lawyers lament loss of wigged tradition, November 5, 2009, The Sydney Morning Herald’).

Legal education as well as legal services is one of Australia’s exports to the region and the position of the court wig as a physically identifiable symbol of Commonlawjurisprudence has been immortalized as a trade mark of a shared common law heritage and it has been clearly established that members of the public like the wig.

It has also been written in Australia’s Sydney Morning Herald (‘Wind of change threatens to blow off wigs, Sydney Morning Herald, By Richard Ackland, June 20, 2003’) as follows:

‘…Nothing symbolises the legal system better than the wig. It’s not the scales of justice, or the sword, that defines the public’s notion of the law. It’s the horsehair. Harmlessly it embodies tradition, spectacle and independence in one rather witty little top piece…’

15) The wigs remains used by other countries in the Commonwealth despite serious political challenges and is a source of comfort and assurance and regard for the Rule of Law.

These are issues that represent the current problems faced by adherents of the Common law in both the practicing and judicial circles which now more than ever requires the closing of ranks between the Bars of the Commonwealth and the strongest bond is the cultural bond with robe and wig use. The modernization of judicial court dress digresses away from this objective.Pakistan’s current Chief Justice Iftikhar Mohammad Chaudhrywas wigged and wore a full-bottomed wig for the ceremonial taking of the oath of office by the then Pakistan’s President General Pervez Musharraf(Photograph is depicted in the BBC News article ‘Judge Row Prompts Pakistan Democracy Questions’ Monday, 12 March 2007’).

In the Federation of Nigeria, the common law courts have similarly defended the rule of law by the court appearance and the defence presented by wigged barristers in the state courts in Katsina in that Federation (‘Why AminaLawal should live, by counsel’ from the Biafra News service published by The Guardian Nigeria) which reported that wigged barristers were defending their client in the Religious appeals court (The New York Times Monday, September 14, 2009 article ‘Facing Death for Adultery, Nigerian Woman Is Acquitted’ displays a photograph of the wigged barristers in this case).

16) The wig is Australian and has been patriated along with British dress customs by the arrival of settlers in 1787

British settlement had begun on 13th May 1787, when a fleet of 11 ships sailed from England and reached Botany Bay on 18th January 1788 but the fleet later left to establish a settlement at Port Jackson which grew to be Sydney. In 1813 the discovery of a passage over the Blue Mountains opened the way for inland exploration and further settlement in Hobart (the state of Tasmania) in 1803, on the Brisbane River (the state of Queensland) in 1824, on the Swan River (the state of Western Australia) in 1829, on Port Phillip Bay (the state of Victoria) in 1835 and on Gulf St Vincent (the state of South Australia) in 1836. These colonies joined in a federation of States to become the Commonwealth of Australia in 1st January 1901 (‘History of Australia (1788—1850) From Wikipedia, the free encyclopedia’). Based on this history, dress customs and wigging cannot be regarded as foreign or ‘European’ but is indeed fully Australian having been patriated along with these settlers who settled at the time when the wig was in regular use by the establishment and by the maritime naval officers of the period arriving in the Australia region in the 18th century and early 19th century.

In conclusion

Proposals to abolish wig use citing that the public viewed the traditional robes and wig used by judges and lawyers as out-dated have not addressed or considered the above issues that would have been obvious if suitable research and inquiry had been made on the underlying implications of change in court attire and the dropping of the judicial wig and moves to remove the wig will not serve any useful purpose and should not, as with all other divisive issues, be pursued as it undermines the unity of lawyers in the various Bars of the Commonwealth of Australia .

Thank you,

Mr Vishnu Kumar Visvanathan,

Advocate and Solicitor of the High Court of Malaya,

Member of the Malaysian Bar (BC/V/049)

Malaysia.