minutes - Malaysian Bar

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Held on 10 Mar 2012 (Saturday) at 10:00 am at the Grand Ballroom, Sunway Putra Hotel, Kuala Lumpur

The Chairman, Lim Chee Wee, called the 66th Annual General Meeting of the Malaysian Bar (“AGM”) to order at 10:50 am when the quorum had been reached. He invited Members of the Bar to rise and observe a minute of silence in memory of the following Members who had passed away during the term under review. The Bar recorded its deepest condolences to the families and loved ones of:

(1) Arifin b Haji Jaka(2) Abdul Aziz b Mohd Zain(3) Badariah bt Yahya(4) Ch’ng Theam Inn(5) Ghandinesen s/o Kanapathi Pillai, K(6) Harold Livera Tennakoon (7) Ho Thian Cheh(8) Lal Harcharan Singh(9) Liew Teck Keong(10) Mahadevi d/o Nadchatiram(11) Mat Zain b Sulaiman(12) Narayanan s/o Sukumaran(13) Ng Fook Loy(14) Ng Yeong Lee

(15) Nik Hashim b Nik Daud(16) Pushpam d/o Subramaniam(17) Raja Aziz Addruse(18) Ramalingam s/o Thanni Malai(19) Ramiah, Anpalagan(20) Ranjit Singh s/o Jag-jit Singh(21) Sinnu s/o Marappan(22) Tan Tan Bok @ Chen Chanple(23) Tay Leong Siak(24) Thaiyub Khan b M M Othuman Aliar(25) Yap Wai Kit

Item 1 of the agendaTo consider and, if approved, to adopt the minutes of the 65th AGM held on 12 Mar 2011

There being no amendments, the minutes were adopted, as proposed by Baljit Singh of the Kuala Lumpur (“KL”) Bar and seconded by P Arudkumaran of the Selangor Bar.

Item 2 of the agendaTo discuss matters arising from the 65th AGM

66th AGM of the Malaysian Bar | 10 Mar 2012minutes

Item Subject Update(1) Role of LawyersTalk e-group Bar Council (“BC”) is considering the suggestion made by some

Members that the LawyersTalk e-group be used as an official channel of communication. However, BC already has a platform for online discussion, which is the “Forum” section of the Malaysian Bar website.

As and when important issues were raised in the LawyersTalk e-group, the Secretary responded by issuing circulars to Members or providing information on the website.

(2) Proposed amendment to Solicitors’ Account Rules 1990 relating to issuance of cash cheques from a client account

The BC Conveyancing Practice Committee recently submitted a revised proposed amendment for BC’s consideration.

66th AGM of the Malaysian Bar | 10 Mar 2012

6 | 2012/13 annual report

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Item Subject Update(3) Proposed amendment to section 95

of Law Reform (Marriage & Divorce) Act 1976 to make fathers liable for maintenance of their children beyond 18 years of age

Memorandum prepared by the BC Family Law Committee has been sent to the Attorney General’s Chambers; Ministry of Women, Family and Community Development; Ministry of Home Affairs; and the Minister in the Prime Minister’s Department in charge of Law.

The Family Law Committee plans to launch a public campaign regarding the proposed amendment to section 95, and publicise it on the Malaysian Bar website to encourage Members of the Bar to come forward with clients who are willing to share their stories publicly.

(4) Availability of manual registration at Stamp Offices

During a meeting between the BC Conveyancing Practice Committee and Lembaga Hasil Dalam Negeri (“LHDN”) on 29 Sept 2011, LHDN stated that there are counters for manual registration at all its branches.

In a subsequent letter dated 30 Nov 2011, LHDN confirmed that manual registration is available at all Stamp Offices.

(5) Inclusion of the attendance record of committee members in the reports by committees

Many committee members, including those outside the Klang Valley, contribute actively to committee work through emails and/or attending meetings with external parties, without attending committee meetings.

Attendance at committee meetings alone is therefore not an adequate or accurate indicator of a committee member’s level of participation or contribution.

(6) Proposed committee on climate change

The BC Environment and Climate Change Committee was set up at the beginning of the 2011/12 term, during which it was co-chaired by Roger Chan Weng Keng and Chew Swee Yoke. The Committee’s report is included in the 2011/12 Annual Report.

(7) Balance sheet for the Discipline Fund Although the amount of fixed deposits for the Discipline Fund increased from RM2,967,385 in 2009 to RM3,191,310 in 2010, interest earned dropped from RM103,485 in 2009 to RM79,332 in 2010. This decrease was due to the decline in interest rates in 2010, as shown below:

Duration 2010 200912 months 2.50% 3.50%15 months 2.50% 3.80%


Item Subject Update(8) Issues relating to the electronic filing

system (“e-filing”) in courtsThe e-filing system was implemented in the Kuala Lumpur courts with effect from 1 Mar 2011, in respect of all filings in court for originating processes commenced on or after that date.

The Kuala Lumpur Bar Committee took the lead in assisting Members to understand and benefit from the e-filing system. Many meetings were convened with the service provider and the Judiciary to discuss and resolve Members’ complaints. Members were provided with easy-to-use information and a user-friendly step-by-step guide on the use of the e-filing system.

BC, and Chairmen of the relevant State Bar Committees, took measures to urge the Judiciary to delay the implementation of the e-filing system in courts in Shah Alam, Penang, Johor Bahru and Putrajaya, or to introduce it gradually. The e-filing system was implemented in phases in these courts beginning in late May 2011.

The BC Court Liaison Committee issued over a dozen circulars to Members, to provide information on the implementation and updates on developments. In addition, the Committee assists many Members individually, to resolve the problems they face in using the e-filing system.

The Committee continues to hold regular meetings with the service provider and the Judiciary to highlight, and seek solutions to, issues and problems that arise.

(9) Motion regarding quality and administration of justice

(a) At the AGM held on 12 Mar 2011, the motion was amended to state that the Malaysian Bar has no confidence in the Key Performance Indicators introduced by Chief Justice (“CJ”) YAA Tun Dato’ Seri Zaki b Tun Azmi, which do not serve the interest of justice and litigants, and calls upon him to immediately withdraw them. The amended motion was carried (285 votes in favour, one against, and two abstentions).

(b) Numerous meetings were held with the CJ and senior Members of the Judiciary to address the issues raised by Members of the Bar, such as the undue emphasis given to speedy disposal of cases, and judges’ lack of flexibility in the administration of justice. As a result, the Chief Judge of Malaya issued Practice Directions No 1 of 2011 and No 2 of 2011, dated 21 Mar and 7 Apr 2011, respectively.



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Item Subject UpdateThe Bar and the Bench also issued a joint press release, on 7 Apr 2011, setting out a common position, the key elements of which were that:

w We must collaborate and coordinate with each other to ensure an effective and just administration of justice that inspires public confidence;

w We were, and are, determined to substantially reduce the backlog of cases; and

w There are no Key Performance Indicators based on quantitative measures.

Instead, reassurance was given that judges are assessed on qualitative measures such as integrity, impartiality and independence, quality of judgments, and observance of the Judges’ Code of Ethics 2009.

(10) Motion regarding Advocates and Solicitors Disciplinary Board (“DB”)

(a) The motion was withdrawn, as MS Murthi agreed with BC’s position that DB should not participate in appeals, and only BC would do so.

(b) BC has subsequently intervened in 20 appeal proceedings.

(11) Motion on inquiries into deaths (a) The motion was unanimously carried. It calls on the Government to, inter alia, introduce a Coroner’s Act and establish a Coroner’s Court, conduct a comprehensive review of the manner in which inquiries into deaths are undertaken, and take steps to ensure that full inquiries are carried out in respect of all deaths of persons in custody.

(b) BC, together with the Office Bearers of the Judiciary, visited the Coroner’s Court in Singapore on 29 Apr 2011 (during the Malaysia/ Singapore Bench and Bar Games), to learn about the Coroner’s Act and Coroner’s Court in Singapore.

BC has raised the issue of the establishment of a Coroner’s Court in Malaysia on a few occasions:

w At the Committee on the Administration of Justice’s meeting on 3 May 2011, Dato’ Seri Mohamed Nazri Abdul Aziz (Minister in the Prime Minister’s Department), who chaired the meeting, said he would raise this matter in Cabinet; and

w At a meeting with Senator Dato’ G Palanivel (President of Malaysian Indian Congress, and Minister in the Prime Minister’s Department) on 4 Jan 2012.


Item Subject UpdateA position paper on the establishment of a Coroner’s Court in Malaysia, prepared by the proposer of the motion, Andrew Khoo Chin Hock (Chairperson of the BC Human Rights Committee), has been submitted to both Ministers. BC has requested to meet Dato’ Seri Mohamed Nazri Abdul Aziz to discuss the matter.

(12) Motion calling upon the Government to regulate will-writing enterprises/agencies in Malaysia

(a) The amended motion, calling “for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to draft wills for remuneration”, was unanimously carried.

(b) A small team led by the proposer of the motion, Richard Wee Thiam Seng, has conducted research to gather information to support the view that only advocates and solicitors should be permitted to draft wills for remuneration, but little material is available. Without specific data on complaints by consumers against will writers who are not advocates and solicitors, it may be difficult to substantiate a call to amend the Legal Profession Act 1976. The team will continue its efforts to gather sufficient information to propose an amendment to the Government.

(13) Motion on Asahi Kosei (M) Sdn Bhd’s legal suit against Charles Hector Fernandez, Member of the Bar

(a) The amended motion, calling on the Malaysian Bar to, inter alia, “render all reasonable assistance and support to Charles Hector Fernandez, as deemed fit by the Bar Council”, was unanimously carried.

(b) On 16 Aug 2011, BC representatives (including the President and Vice-President) held a meeting with representatives from the Embassy of Japan to discuss the matter.

The suit ended in a settlement on 25 Aug 2011, whereby Charles Hector Fernandez had to pay RM1 in damages to the company and RM1 in costs, and publish a half-page apology in two daily newspapers (The Star and Nanyang Siang Pau).

Date: 24 Feb 2012



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of the Annual Report made him appear dictatorial, and was not representative of the President’s leadership of BC and the Bar, which had been most democratic and comprehensive.

3.1.4 Defamation suit against Charles Hector Fernandez

Charles Hector Fernandez of the Selangor Bar expressed his sincere thanks to Members of the Bar, as well as BC, for their support in respect of the suit instituted against him by Asahi Kosei (M) Sdn Bhd.

The Chairman said that this had been done for a good cause.

3.1.5 Common Bar Course (“CBC”)

The Chairman said that the Legal Profession Qualifying Board has set up a CBC Committee headed by him, and expressed his confidence that the CBC will become a reality in the near future.

3.1.6 Tun Dato’ Seri Zaki Tun Azmi, former CJ

N Surendran s/o K Nagarajan of the KL Bar highlighted the President’s note of thanks to Tun Dato’ Seri Zaki Tun Azmi, the immediate past CJ, at page 56: “We thank Tun Dato’ Seri Zaki Tun Azmi for his leadership and for leaving an improved Judiciary, and wish him a happy retirement.”

N Surendran s/o K Nagarajan raised the issue pertaining to the RM2.2 billion highway concession that the Government had awarded to a company linked to Tun Dato’ Seri Zaki Tun Azmi’s wife, who is one of its directors. He said that whilst the matter had been taken up by politicians and activists, the Bar had been slow in its reaction. He asked BC to take a serious look at the matter, which concerned the fundamental independence of the Judiciary, and to push for a proper inquiry to determine under what circumstances the contract had been awarded. He further asked BC to treat the matter as one of great urgency and priority.

Item 3 of the agendaTo consider the President’s and committees’ reports re: Activities of the Malaysian Bar for the year 2011/2012

3.1 President’s Report

3.1.1 Liberalisation of the legal profession

The Chairman said that the Government would, in all likelihood, table the amendments to the Legal Profession Act 1976 (“LPA”), to allow foreign lawyers to practise foreign law in Malaysia, in the March/April 2012 sitting of Parliament. There will be a Selection Committee, which will comprise largely of Members of the Bar, as well as the Attorney General (“AG”) and a Government representative. The Selection Committee will look at applications from foreign lawyers wishing to practise through a qualified foreign law firm (“standalone firm”), an international law partnership with a local law firm, or by way of employment/recruitment in a local law firm. Emphasis will be given to foreign lawyers who specialise in international Islamic finance, in light of Bank Negara Malaysia’s objective to promote Malaysia as an international Islamic finance centre. BC is stepping up efforts to take legal action against unauthorised persons, one of whom is a foreign lawyer who is alleged to be practising local/foreign law in Malaysia.

3.1.2 Group practice

The Chairman said that the Small Firms Committee chaired by George Varughese will, in the new term, put in place a group practice regime whereby sole proprietorships and small partnerships can come together to share facilities such as premises, backroom support, library and meeting rooms. The regime is akin to the English chamber system, except that local lawyers will not be permitted to market, project or promote the concept.

3.1.3 Photograph of the President

Sulaiman Abdullah of the Selangor Bar remarked that the pose of the President in the photograph at page 52


The Chairman said that the incoming Council would look into the issue.

3.1.7 Custodial sentence imposed on Hoslan Hussin, former imam

N Surendran s/o K Nagarajan referred to the one-year jail sentence handed down by the Federal Court on 8 Mar 2012 to a former imam, Hoslan Hussin, who had been found guilty of contempt of court for throwing a shoe at a panel of Judges the previous month. He said that although no person would ever condone such an act, the court ought to have taken into account the circumstances that led the former imam, a struggling father of seven children, to commit the act. It appeared that the former imam had not been represented and had been very emotional that day. According to a news report, counsel who held a watching brief for the Malaysian Bar, had allegedly told the court that the case did not merit leniency and had asked that a deterrent sentence be imposed.

N Surendran s/o K Nagarajan disagreed with counsel’s stand as he felt that counsel ought to have condemned the act, but at the same time pleaded for mercy. The sentence led to the issuance of a public statement by BC criticising its severity, but this had given the impression that the Malaysian Bar’s stand was contradictory. N Surendran s/o K Nagarajan remarked that it would have been better for BC not to have sent any counsel to hold the watching brief, and asked that BC review the incident to find out how the episode had occurred.

The Chairman said that following the incident, he had sought clarification from counsel, who had been appointed by BC following an invitation from the Federal Court. The counsel said that prior to the finding of contempt, when the Federal Court had asked the former imam to explain his conduct, the latter, instead of being contrite, told the court that he was entitled to do what he had done. As a result, counsel asked for a deterrent sentence. However, the pronouncement of the one-year custodial sentence by the Federal Court had stunned everyone who was present. The Chairman admitted that BC had been caught in an awkward

position by having to issue a press statement criticising the severity of the sentence and asking the court to show mercy to the former imam. The Chairman said he had sought further clarification from counsel as to what had taken place in the court of first instance, where the former imam had purportedly been denied the opportunity to apply for an extension of time to file his affidavit in reply. In any event, courts would traditionally grant leeway to unrepresented lay litigants in court proceedings. The Chairman said that BC would look into the matter.

Tommy Thomas of the KL Bar asked the Chairman to address the issues concerning the RM2.2 billion contract award, and the severity of the sentence, at the press conference scheduled to take place after the first BC meeting after the AGM. He said that it would have been unimaginable for a retired CJ of England, Australia or India to have received a contract award after retirement. Hence, what happened in Malaysia was extraordinary. He cited the case of the former prominent Lord President, Tun Mohamed Suffian Hashim, who had been offered the post of non-executive Chairman of Standard Chartered Bank Berhad upon his retirement in 1982, but who had quietly retired following heavy criticism. Tommy Thomas recalled the close relationship between a former CJ and a senior court practitioner, both of whom had gone on a holiday in New Zealand, and said that court-going lawyers must always be careful not to socialise with Judges, because of public perception. However, the position of corporate lawyers who do not attend court is quite different. Tommy Thomas asked the Chairman to make a strong statement on the issue.

Tommy Thomas said that when the occasion presented itself, the Judges of the Federal Court ought to have treated the case as one of contempt in the face of the court and punished the former imam accordingly, but they had been afraid to do so, due to racial and religious reasons. That was the reality. Instead of being blind to race and religion, the court over-reacted. It also failed to appoint a separate panel to hear the contempt matter, and instead reappointed the same panel of three Judges who had heard the former imam’s appeal.



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Tommy Thomas asked the Chairman to highlight this point at the press conference. He proposed that the Judiciary call for a review of rule 137, relating to the inherent jurisdiction of the Federal Court. In his view, the Federal Court should have set up a new panel of Judges, and excluded the three Judges. There is a precedent in General Pinochet v House of Lords, whereby General Pinochet’s legal team attempted to reverse the decision of the original panel of Law Lords headed by Lord Hoffman. The new panel that had been subsequently set up had not consisted of any Law Lords who had sat with Lord Hoffman.

The Chairman said that more than 10 years ago, BC had prepared a paper on the proposed reform of the law on contempt of court, with the recommendation that a different panel of Judges should be appointed to hear and determine an act of contempt.

Charles Hector Fernandez said that BC ought not to have recorded its thanks to Tun Dato’ Seri Zaki Tun Azmi for his leadership of the Judiciary. BC should have confined its acknowledgment to the former CJ’s position as leader of the Judiciary and just wished him a happy retirement. Charles Hector Fernandez said that the note of thanks did not reflect well on the Bar because, during the former CJ’s tenure, the Bar had faced a lot of problems with the courts. With regard to the admission by the former CJ, after his appointment as head of the Judiciary, that he had bribed court officials as a practitioner, Charles Hector Fernandez asked BC to urge the relevant authorities to investigate the former CJ’s statement and take action against him if the allegation were proven to be true. He also suggested that BC or DB take up the matter because the former CJ is no longer immune from being investigated for a criminal offence of corruption. He proposed that the Bar’s previous resolution on the cooling-off period for former Judges be extended to include the prohibition of post-retirement awards or privileges to Judges or any member of their families.

The Chairman said that the allegation of bribery was pending appeal, in respect of Karpal Singh’s application for a review by the Judges’ Ethics Committee that was

supposed to consider the complaint. BC had held a watching brief in the proceedings and supported Karpal Singh’s position. The Chairman said that the Malaysian Bar had, during Tun Dato’ Seri Zaki Tun Azmi’s tenure, expressed its disappointment with the stand taken by the courts on human rights and constitutional cases, by way of press statements issued by the immediate past President and himself. He explained that his note of thanks to the former CJ had been in relation to the improvements that had taken place in the administration and efficiency of the courts. He said that BC will look into Charles Hector Fernandez’s other proposals.

To Charles Hector Fernandez’s request that the note of thanks be deleted from the President’s Report, the Chairman said that he could not do so, because of the fact that the improvements did take place, although Tun Dato’ Seri Zaki Tun Azmi may have had his flaws.

Chew Swee Yoke of the Selangor Bar suggested that BC should, in future, brief counsel on what to say in court. She said that the deterrent sentence sought by counsel that turned out to be an imprisonment of one year had made BC look really bad. Chew Swee Yoke proposed that N Surendran s/o K Nagarajan consider starting a fund for the former imam’s family, as lawyers might want to contribute, and show the Judges what they think of the sentence.

Sulaiman Abdullah said that while he had the greatest respect for Tommy Thomas as the voice and conscience of the Malaysian Bar, he disagreed with Tommy Thomas’s dispensation to corporate lawyers to have social relationships with Judges. He said that the whole Bar should oppose the concept of Judges socialising with any practising lawyer.

3.1.8 Amendments concerning criminal procedure

The Chairman said that BC is following up with the AG on the effective date of implementation of the amendments to the criminal laws. He informed Members that the Criminal Law Committee would organise a forum on issues of criminal justice soon, and


urged them to participate. He added that a number of complaints had been received recently, concerning the manner in which courts of the first instance and the appellate courts had handled criminal trials and appeals. A circular will be sent to Members of the Bar on this issue.

3.1.9 Implementation of the electronic filing (“e-filing”) system

Charles Hector Fernandez noted that although numerous complaints had been posted and discussions held on this issue through various e-groups, no Member had raised the issue during the AGM. He asked fellow Members who had faced problems arising from the e-filing system to come forward and speak up.

The Chairman said that BC had organised a few forums and also prepared a memorandum that had been handed to the Judiciary. A meeting had been held recently with the Judiciary to resolve issues relating to the e-filing system that was being implemented across the nation. The Chairman asked Members to bear with BC, which is trying its best to address the issues raised in the memorandum, a copy of which could be accessed on the Bar website. Another forum may need to be held.

3.1.10 Construction Industry Payment and Adjudication (“CIPA”) Bill

The Chairman said that the CIPA Bill imposes the requirement of statutory adjudication for certain contracts in the construction industry. BC and the KL Regional Centre for Arbitration (“KLRCA”) are organising a number of courses on this new and interesting area of practice, which is expected to generate a lot of work for Members.

3.1.11 Common Bar Course

The Chairman said that the CBC will help to address the issues of quality and standards of the Bar, since it will serve as the single point of entry into the legal profession. Despite the strong resistance put up by the

six local universities, the AG had made it clear, in his speech during a Certificate in Legal Practice convocation ceremony held the previous year, that the CBC would apply to all graduates, regardless of their university.

3.1.12 MyConstitution (“MyConsti”) Campaign

Sulaiman Abdullah said he felt extremely proud of the work done by members of the Constitutional Law Committee. He noted that though the Chairman had sent a letter of congratulations to the Committee, the Chairman had not taken the opportunity that morning to enlighten the Bar about the compliments given by representatives of foreign Bars at the LAWASIA Conference in Seoul the previous year, over the Committee’s magnificent MyConsti Campaign.

The Chairman apologised for the inadvertent oversight and informed the House that at the LAWASIA Conference, he had not only talked about the Malaysian Bar’s work, but had distributed the MyConsti Campaign’s nine Rakyat Guide booklets to conference delegates, and also screened the Rakyat Service Advertisement video clips. The delegates had been astounded at the Campaign, which aimed to raise awareness on constitutional issues among citizens of Malaysia. The Chairman expressed his thanks to the hardworking members of the Constitutional Law Committee for the good work they were doing.

3.1.13 Bar Resolutions

Charles Hector Fernandez proposed that BC compile the follow-up actions that had been taken in respect of all resolutions passed by the Malaysian Bar over the years, and publish the compilation in the AGM Update Sheet next year.

The Chairman said that the incoming Council would take note of this suggestion.

3.1.14 Amendments to the LPA

Charles Hector Fernandez enquired about the status of the proposed amendments to the LPA and, in particular,



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the House’s request for a repeal of the provision that sought to remove the right to judicial review.

The Chairman apologised for the oversight in not having updated Members, via circular, on the progress of the amendments to the LPA. He said that the report by the committee chaired by VC George had been adopted and incorporated into the LPA Amendment Act, except for a few minor amendments. The Amendment Act was expected to be tabled in the March/April 2012 sitting of Parliament, together with the amendments relating to the liberalisation of the legal profession.

3.2 Secretariat’s Report

3.2.1 Shorter processing time for Sijil Annual and Practising Certificate applications

The Chairman reported that the issuance of Sijil Annual by the Secretariat has become speedier, with a shorter processing time averaging 12 days. Members can now check online for the status of their Sijil Annual applications. A project that is in the pipeline is a major revamp of the Secretariat’s IT infrastructure to allow the Secretariat to email relevant particulars to Members for the purpose of verification.

Charles Hector Fernandez placed on record his thanks to the Secretariat for its improved performance this year.

3.3 Advocates and Solicitors Disciplinary Board’s Report

The Chairman said that BC and DB have jointly produced a “Frequently-Asked-Questions” pamphlet that will assist Members to better understand the disciplinary process, as some Members did not know why they had been called upon to provide explanations in complaints brought against them before DB. This may have been due to the fact that they had not read the LPA. He advised Members who had any concerns about DB to email a note to him or the Vice-President. He mentioned that copies of the pamphlet were available at the registration counter outside the meeting hall.

3.4 Report on 2nd Asian Mediation Association Conference

The Chairman said that the Conference had been an astounding success, and one of the best the Bar had ever organised.

3.5 Report on 5th China–ASEAN Forum on Legal Cooperation and Development

The Chairman related how a Member of the Bar, a sole proprietor, had, as a result of attending the Forum in China about two years earlier with sponsorship by the Malaysia External Trade Development Corporation (“MATRADE”), successfully established a network with lawyers there. The Chairman encouraged Members to look towards China, an interesting market with a great deal of two-way trade, and the ASEAN region, if they wished to expand their legal services.

3.6 Committees’ reports

3.6.1 Ad Hoc Committee on Conditional Fee Rules

Su Tiang Joo of the KL Bar noted with disappointment that the Conditional Fee Rules, which had been adopted by BC, would be confined to third-party accident cases, despite the assurance that had been given at the 65th AGM by the former President, Ragunath Kesavan, that the Conditional Fee Rules would be open to all other areas. He quoted the following extracts of the minutes:

Pages 11 to 12: Su Tiang Joo of the KL Bar said that according

to the circular received the previous day, the Contingency Fee Rules were approved only for running down cases. He recalled having written to BC asking for the Rules to be open to all areas of practice. . . . The Chairman assured Su Tiang Joo that BC will take note of his comments to open the Contingency Fee Rules to all other areas in future.


Pages 14 to 15: The Chairman said that the Malacca Bar

Committee, though a small Bar, has formed a subcommittee to take on the huge task and responsibility of looking into the amendments to the LPA. The Contingency Fee Rules will be incorporated as part of the amendments.

Su Tiang Joo said that because Members practise in very wide areas of law, there should be no discrimination. He asked that the Conditional Fee Rules be opened to all areas of practice, except for criminal law and family law, which involve public policy, and the fact that maintenance fees should not go into the pockets of solicitors. He questioned why the Conditional Fee Rules had been given limited application and asked BC to explain what it had been doing for the last year.

The Chairman said that the Conditional Fee Rules were still being discussed with the Attorney General’s Chambers (“AGC”). The Rules were also being discussed with Bank Negara Malaysia, through its Joint Working Committee. Technically, under the LPA, the making of rules for the legal profession falls within the jurisdiction of the Bar and the AGC. BC has taken the stand that at the initial stage, the Rules be made applicable only to personal injury cases. If they are workable, the Rules would be expanded to other areas, except criminal law and family law.

Su Tiang Joo said that the previous Ad Hoc Committee on Amendments to the LPA, headed by Peter Mooney, had studied the Conditional Fee Rules thoroughly over four years before recommending that the Rules be made applicable to all areas of practice other than criminal law and family law. The Ad Hoc Committee had submitted its report to BC about two years earlier. Su Tiang Joo sought a fresh assurance from BC that there would be no discrimination, and that the Rules would be open to all areas of practice other than criminal law and family law.

The Chairman said that the outgoing Council had held two meetings to discuss the Ad Hoc Committee’s report. He regretted that he could not give Su Tiang Joo the

assurance sought, because the incoming Council would need to look at the matter afresh.

3.6.2 Dissemination of BC decisions to Members of the Bar

Charles Hector Fernandez proposed that BC issue a General Statement to Members of the Bar regarding main issues that are being discussed with external bodies such as AGC and Bank Negara Malaysia, to keep them abreast of issues that BC is pushing for and the objectives behind them. In this manner, Members can intervene as soon as they become aware that BC is about to take a position that is contrary to what the general membership wishes. Presently, Members are informed about issues and positions only after they had been agreed upon between BC and an external body, by way of the Annual Report and at general meetings. By that time, it was too late to change anything, and all Members could do was voice their dissatisfaction.

The Chairman said that BC always issues a General Statement after every Council meeting, which sets out the important decisions taken. In addition, ad hoc reports on meetings with outside bodies such as the Judiciary and AGC were published on the Bar website. However, for ongoing discussions, it would not be practical to disseminate every decision made regarding an issue, unless a certain milestone had been attained or BC needed to seek directions from Members, by way of a forum or dialogue session. The Chairman said that although four dialogue sessions had been held on issues concerning liberalisation and Islamic finance, each session had been attended by fewer than 30 participants. The problem was that despite BC’s efforts to engage with Members, very few had responded. The Chairman pleaded with Members to read all of BC’s materials that are circulated and to give their feedback on any issue that might affect them.

Charles Hector Fernandez suggested that BC make use of the various e-groups to engage Members to get their feedback.



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The Chairman said that the Bar is now 13,800 in number, and about 8,000 email blasts need to be sent to Members for every circular that is disseminated. Thus, Charles Hector Fernandez’s suggestion would not be practical.

3.6.2 Ad Hoc Committee on National Legal Aid Foundation

The Chairman said that the date that the Foundation would commence operation would fall either in March or April of 2012. BC had already trained about 700 Members, and was aiming for 1,000 Members. Training sessions were still ongoing, with a session held in KL about two weeks earlier and another scheduled to be held in Ipoh the following week.

3.6.3 Arbitration and Alternative Dispute Resolution Committee

The Chairman acknowledged the good work done by Sundra Rajoo, Director of KLRCA, who had put in a tremendous amount of effort to revive and improve the efficiency of KLRCA, which was now in the process of tracking down all arbitration disputes that had gone elsewhere over the years. It was hoped that KLRCA would be able to bring back all these cases so that Members of the Bar would have the opportunity to advise more clients. BC had been working very closely with KLRCA, to promote the latter through roadshows, such as those that had been held in China, Korea and India over the last term. A few roadshows would be held in Malaysia and Indonesia in the new term.

3.6.4 Subcommittee on Construction Law

The Chairman said that BC would pursue the issue of the establishment of a Construction Court, with the Minister of Works and the CJ.

3.6.5 Committee on Orang Asli Rights

The Chairman that the issue of illegal encroachment into Orang Asli lands had come to the forefront in the last year. He invited Members to contribute to the

special fund that had been set up by BC to finance the litigation of cases, research on entitlement of land titles, and engagement of experts to give evidence.

3.6.6 Constitutional Law Committee

The Chairman said that, with respect to BC’s campaign on Article 121(1) of the Federal Constitution, to restore judicial powers in the courts, a letter had been sent to the AG to pursue the amendments being sought. The Chairman had also met with the AG, who was receptive to the idea, but unfortunately, the AG’s hands were tied due to certain policy decisions made by the Executive.

3.6.7 Conveyancing Practice Committee

The Chairman acknowledged the good work of the Conveyancing Practice Committee. He said that the Government had adopted BC’s proposal to amend the laws relating to conveyancing matters almost in toto. One serious issue that had recently been brought to BC’s attention was the allegedly forged, fraudulent or fake acknowledgment of payment of stamp duty. The Chairman warned Members who hired runners to carry out stamping of documents to be careful, because a few Members had been victims of the fraud. Based on the modus operandi of the runners, money intended for the stamping of Sale and Purchase Agreements had not in fact been paid to the Stamp Duty Office, but had been passed from hand to hand. One of the runners might be prosecuted in the next one to two weeks. The Chairman said that the Conveyancing Practice Committee is looking into this issue.

3.6.8 Corporate and Commercial Law Committee

The Chairman said that the Limited Liability Partnership (“LLP”) Act would come into force soon but the LPA needed to be amended to cater for LLPs in the legal profession. One other amendment that BC must look at was the need for a provision to allow vesting of court files belonging to law firms that intended to become LLPs, in order to do away with the requirement of filing a notice of change of solicitors for every file. The Committee would organise roadshows once the LLP Act came into force.


3.6.9 Court Liaison Committee

The Chairman said that the Court Liaison Committee had drawn up guidelines for scheduling of Court of Appeal matters. Brendan Navin Siva (Chairman of the KL Bar Committee, and Chairperson of the Court Liaison Committee) and the Office Bearers had met the President of the Court of Appeal to try and resolve the issue. The guidelines will be published on the Bar website.

DP Vijandran of the KL Bar enquired why the Committee’s report was very short and asked the Chairman to enlighten him on the following issues that were not amplified therein:

Some of the issues being considered by these working groups include guidelines on the award of costs, the proper quantum increase of filing fees, and those in relation to electronic filing (“e-filing”) and court recording and transcription services (“CRT”).... Many other issues were raised throughout the course of the term, including... problems relating to the use of the court recording transcription (“CRT”)…

The Chairman said that some committee reports had been deliberately kept brief because certain materials like memoranda had already been published on the Bar website. With respect to CRT, BC had written to Bahagian Hal Ehwal Undang-Undang and the Minister of Law with the proposal that CRT services be provided by the courts, based on the models of other jurisdictions such as Singapore, Hong Kong, the UK and Australia, whereby lawyers hire a private service provider of transcription services such as Merrill Legal Solutions, at a fee. This is akin to our previous practice of lawyers paying a service fee to Judges’ secretaries to type out notes of evidence on a folio basis. The Chairman said that discussions had been held with the courts over the past two years and were still ongoing. The courts had undertaken a recruitment drive to hire transcribers but this had not been successful, due to the transcribers’ poor command of English. That was why there was presently no uniformity in the transcription process in the courts.

Some Judges were fortunate to have secretaries whose proficiency of English was good. However, for Judges whose secretaries were not proficient in English, they would pass on the task of transcribing, to the lawyers. A temporary solution is for BC to distribute a list of private transcribers to Members.

DP Vijandran said that the problem relating to the transcription of notes of evidence is an old one, and demonstrates malaise in the court system. Lawyers for plaintiffs or defendants were now required to give an undertaking to provide courts with transcripts. This meant that lawyers had to do the transcription themselves. There was no particular way of gaining mutual agreement on the veracity of the transcripts. When disputes arose, Judges would ask the parties concerned to carry on with the transcripts on the basis that they would deal with the issue at the end of the trial. DP Vijandran said that it would be too late by that stage to raise issues concerning the discrepancies. There should be an official record of the notes of evidence, which must be done by Judges and not anybody else. DP Vijandran said he did not wish to quibble about the e-filing system, but the notes should be done with the stamp of the courts.

The Chairman said that BC would take note of DP Vijandran’s suggestion, and asked Members to bear with BC as it was working with the Judiciary to put in place guidelines and a uniform procedure for preparing notes of evidence.

DP Vijandran, in appreciating BC’s efforts, asked BC to take note of the vitality and urgency of the matter because CRT was causing a lot of problems for lawyers, and the ongoing discussions and dialogues with Judges did not seem to produce any results. Although the problem had been going on for more than two years, there was still no solution in sight, despite the Chairman’s well-intentioned assurance that the issue would be looked into. Both the legal profession as well as the administration of justice were suffering, because notes of evidence formed a fundamental part of the judicial system. Amidst this confusion, some Judges hardly looked at notes of evidence, and consequently



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produced unsatisfactory judgments. DP Vijandran asked BC to take a stand on the issue and not merely give assurances.

The Chairman explained that based on the Bar’s stand, it is the courts that ought to provide the notes of evidence. BC was working with the courts on how best to achieve this. The situation was different in Sabah and Sarawak where the caseload was much less, and their transcribers generally had a good command of English. He assured Members that BC would look into the issue urgently.

GK Ganesan of the KL Bar put forward two complaints, the first of which concerned the e-filing system. He informed the House that courts do e-filing more quickly only if a lawyer pays the charge of RM10. He could provide evidence of this, and asked BC to look into the matter. The second complaint concerned the continuing rudeness of some Judges of the Court of Appeal and the Federal Court, who abruptly stop counsel, including himself, while they were in the midst of submitting. GK Ganesan said that this was a very serious issue, because counsel would have, prior to appearing in court, put in a lot of work for their brief, with the aim of putting their best foot forward for their clients in court. Naturally, they expected a reasonable time of 25 to 30 minutes to put their arguments across. A pattern had emerged over the past two years, whereby Judges of the High Court and Sessions Court, as well as Magistrates, were allowed to decide on a set of facts, and their findings were preserved by Appellate Judges who did not want to write their own judgments. Appellate Judges also treated lawyers who appeared before them like idiots. GK Ganesan said that it was pointless for counsel to study their cases late into the night because when they went to court the next morning, the Judges refused to listen to their submissions. He said that Judges ought not to act in this manner, because counsel were paid to go to court to argue on behalf of their clients and should, therefore, rightly be heard. Judges were also cutting down on applications for leave, where there were valid questions of law. GK Ganesan said that something must be done about this serious problem; otherwise, there would be no development of law in the country.

The Chairman thanked GK Ganesan for highlighting the issue and urged Members who had encountered problems with Appellate Court Judges to respond to BC’s periodic circulars seeking feedback. Members could also call him or Brendan Navin Siva, Chairperson of the Court Liaison Committee, directly. If Members wished to make anonymous complaints, BC would still raise the same with the CJ despite the fact that the latter had expressed his wish to know the names of Judges who had been rude or refused to accord counsel sufficient time for submissions. The Chairman cited the case of a Court of Appeal Judge who appeared to have improved after a complaint had been lodged by BC, but had sadly reverted to his old habits. BC needed specific instances of complaints, to compile the information in BC’s database so that a systematic and documented approach could be adopted, which would enable BC to identify individual Judges who were recalcitrant. A report card for each Judge would be prepared and handed to the leaders of the Judiciary when BC met them. Presently, BC received complaints on an ad hoc basis from Members.

Charles Hector Fernandez brought up the problem of lack of chairs in certain courts, including the Shah Alam High Court, thereby forcing lawyers to stand and wait for their turn. He asked if the Court Liaison Committee could look into this.

To the Chairman’s reply that this issue had been raised with the courts a few months earlier by G Kanarasan, Chairman of the Selangor Bar, Charles Hector Fernandez remarked that this was an old problem that had yet to be resolved.

The Chairman said that these problems were not the fault of the Judiciary. Since 2003, courts no longer had a say in decisions affecting them because their control over the management of allocations for construction of courts had been transferred to the Prime Minister’s Department. The design and layout of courts were now the responsibility of people who were clueless as to how court rooms should look like. Hopefully, this problem could be addressed at the regular meetings being conducted by the Deputy Minister of Law with the various stakeholders.


Charles Hector Fernandez related his experience of going to the Shah Alam High Court one morning, only to have been told that the Judge in charge of his case had gone for umrah. He said it was very frustrating because he had stayed up the night before to study his case and had come fully prepared for the full hearing. The frequent failure of Judges to notify counsel was due to their lack of respect for lawyers. Charles Hector Fernandez asked BC to raise this issue with the Judiciary.

The Chairman said that G Kanarasan would take note of Charles Hector Fernandez’s complaint.

Charles Hector Fernandez then touched on the issue of oral submissions, which, in his view, was a right that can only be removed by mutual consent of the parties. He said that there had been instances of Judges directing counsel to put in written submissions despite counsel’s insistence on making oral submissions. Judges came to court with their minds already made up, and proceeded to read out the decisions without giving counsel any opportunity to clarify or rebut. Even worse, Judges asked counsel for both parties to present contemporaneous submissions, thereby denying them their right of reply.

The Chairman advised Charles Hector Fernandez to provide details pertaining to complaints against Judges, Magistrates or Registrars who do not comply with the courts’ Practice Directions, to the Chairman of the State Bar Committee concerned, so that the information could be collated in the central database maintained by BC.

SI Rajah of the KL Bar complained about the poor treatment he had received at the hands of the courts. A simple request from him to be allowed to sit in the front row of seats had been refused. This was in contrast to the position in England, whereby senior Members of the Bar are accorded this privilege. In the past, courts in Malaysia were courteous to lawyers, but over the years, the respect for lawyers had gradually eroded. Courts, including their staff, now treat lawyers like dogs. SI Rajah said that whenever he came across any instance of a serious mistake committed by a Judge, he would seek the permission of the Registrar to see the Judge

immediately, but the Registrar would not entertain him. One day, he simply walked into the chambers of a Judge whose door happened to be ajar. SI Rajah said he was not afraid if Judges reported him to DB, as it would give him the opportunity to subpoena them to the disciplinary inquiry. He asked BC to find a practical and urgent solution to all these problems, as such things should not be allowed to go on. He agreed with the previous speakers that some Judges did not comply with the fundamental rules of court and had refused to allow counsel to speak or make written submissions. He questioned the purpose of having court rules if counsel were not allowed to appear with decorum to present their cases. SI Rajah expressed his frustration at Judges who are ever ready to strike off cases at every opportunity because of the Key Performance Indicators system. He sympathised with young lawyers and pupils who are being harassed by the courts.

SI Rajah informed the House about how he had, on one occasion, contacted the Chairman’s assistant at the Secretariat to borrow a wig, but regrettably she did not return his call. He expressed his disappointment at this lack of action because BC always fights for the human rights of other people but neglects Members of the Bar. He suggested that a wig be kept in the library for Members to borrow in case of emergency.

The Chairman said that it has been the tradition of the Bar that junior Members of the Bar usually give up their seats in court to senior Members as a mark of respect. He asked SI Rajah to provide G Kanarasan and Brendan Navin Siva with details so that the issue could be raised with the Judiciary.

Brendan Navin Siva said that most Members of the Bar would have at least one or two issues with the court system. He informed the House that BC and the CJ had reached common ground on certain issues, one of which is the Judiciary’s Standard Operating Procedure (“SOP”) that requires Judges to give at least three months’ notice to parties before they go on leave. If a complaint is brought to BC’s attention, BC can immediately communicate with the CJ via email and ask him to look into it. Regarding the rudeness of Judges,



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this happens everywhere, but with the CRT system in place, Judges can no longer attempt a denial, because everything is recorded. Brendan Navin Siva said that although anonymous complaints are accepted, it is time for Members to stop hiding behind the cloak of anonymity and come forward with specific details of their complaints. This would enable BC to seek a meeting with the President of the Court of Appeal, who will then verify the facts of the complaints through the recording. If several Members make similar complaints against a particular Judge, it will show that the allegation is not an isolated one. Brendan Navin Siva said that although he had taken up many issues raised by Members with the Judiciary, the CJ and the Registrar insisted on being furnished with specific details so that they could look into the complaints.

As for e-filing, Brendan Navin Siva said that a circular had been issued by BC in December 2011 providing Members with a list of email addresses of Registrars in charge of e-filing in the various states. He asked Members who encounter problems with e-filing to email their complaints directly to the Registrar. The court will look into the problems and try to resolve them within two to three working days. Brendan Navin Siva noted that since the issuance of that circular, very few complaints had been received from Members. All Registrars have been directed by the CJ to attend to lawyers’ complaints promptly. Members need to come forward with their complaints either by way of email or telephone. If no details are provided regarding the name of the Judge and the court where the incident took place, BC will not be able to pursue the complaint. Members cannot then complain that BC did nothing or is useless. Although BC cannot cover all complaints against the courts, it can act as a channel between the CJ and Judges, to address the issues. Only if no action is taken by BC in respect of specific complaints from Members, are Members then at liberty to complain loudly against BC at its General Meetings.

DP Vijandran related an incident that had taken place in court the previous week, when he and a very senior Member were both submitting in respect of some plans, with the aim of cornering a witness who was

contradicting himself. Suddenly, the presiding Judge became very angry because he could not understand the plans, and proceeded to throw them on the floor. DP Vijandran said he subsequently asked the senior Member to pursue the matter at the highest level of the Judiciary, but the latter declined, for fear of being regarded unfavourably by the Judge before whom he, as a practitioner, would have to appear almost every other day. DP Vijandran said that the senior Member’s explanation struck a chord with him. DP Vijandran said that Judges nowadays are not as upright as their predecessors, who were able take criticism in the proper spirit. Hence, it is very difficult for Members to come forward with specific details of complaints unless they are at the tail-end of their practice. This group — including himself — which makes up about 1% of the Bar, dares to stand up to Judges, but the majority of the Bar, comprising young lawyers who have a long future ahead of them, will not dare take the risk of arguing with Judges, as this could jeopardise their future. The problem is akin to a “chicken-or-egg” situation. DP Vijandran said that BC needs to think of a way of finding out what is going on in the courts and how Judges behave, and suggested that BC appoint an independent investigator to sit in the court to record what is happening since the investigator would have no fear of being singled out by Judges. DP Vijandran asked BC not to insist that Members lodge specific complaints. If many Members lodge complaints — whether general or specific — it means that something is wrong with the courts.

Mark Ho Hing Kheong of the KL Bar complained about the ridiculous obstacles created by security guards stationed at the entrance to Jalan Duta Court Complex. As the driveway leading to the entrance — where lawyers were previously allowed to drive through — is now blocked, lawyers are forced to drive around the front area before they can find an empty car park, thereby aggravating the bad traffic there. Whenever it rains, lawyers have to wait for one of the guards to remove the road barriers to let their cars pass through. In terms of security and traffic control, the guards were not doing a good job, as evidenced by the bomb that had gone off at the court complex a few months earlier.


Furthermore, many lawyers’ cars were subjected to knocks and scratches caused by cars parked behind them. Mark Ho Hing Kheong asked BC to take up this issue with the Judiciary, so that lawyers can have easy access to the courts.

Muralee s/o YS Menon of the KL Bar related his experience in furnishing details of complaints against Judges. He said that when he had first lodged a complaint against a particular Judge regarding the way she had handled his client’s highly contested injunction, he had not disclosed her name. Following a written request from BC for details, he provided the relevant information and also identified the Judge as YA Datuk Rohana Yusuf. The immediate past CJ, Tun Zaki Tun Azmi, forwarded the full complaint to the Judge to seek her explanation. Muralee s/o YS Menon said that a week later, when he appeared before the Judge, her opening remark was a query as to why he had lodged a complaint against her. As a result of this, his client’s right was prejudiced. Muralee s/o YS Menon vowed that he would never again provide any details in future.

In respect of the fixing of very short dates by Judges, Muralee s/o YS Menon said that this was due to the requirement imposed on Judges to dispose of matters within nine months, to comply with the Key Performance Indicators system. There are many important interlocutory applications like discoveries and interrogatories that need to be heard, but are being thrown out by Judges on grounds that these could be taken up at the trial stage. Muralee s/o YS Menon questioned the purpose of having legal procedures and remedies if Judges do not make these available to litigants. He said that this is an important issue that needs to be addressed. Concerning the e-filing system, Muralee s/o YS Menon said that lawyers face many problems, such as long queues at service bureaus. The problematic e-filing system is proof that courts had not given proper thought to it, thus putting lawyers through endless trouble. Lawyers had tried their level best to get things done by way of e-filing, and BC had done a lot to mitigate the problems, but these measures were not enough. BC should have taken a more pro-active and positive role in streamlining the e-filing system when

it had been implemented. Telling Members to move with the times, while courts themselves are impeding lawyers in their daily work, is not sufficient.

Muralee s/o YS Menon proceeded to raise an issue concerning the CRT system. Courts provide lawyers with a CD-ROM at the conclusion of a trial, with directions that lawyers file a written submission within two weeks. Lawyers face numerous problems with transcription, because this is a time-consuming task. A period of at least 30 days is needed to transcribe proceedings for a one-week trial. Lawyers also face difficulty when trying to engage competent transcribers, and cannot expect their own staff to undertake the task. In fact, Judges’ secretaries, who used to type notes of evidence for a fee of RM5 per page, were disappointed that this source of income had been taken away.

Muralee s/o YS Menon also spoke about the disrespect shown to him by Justice Low Hop Bing, who had ordered him, during submission on four occasions, to shut up and sit down. On the fourth occasion, when he refused to sit down, the Judge first stared at him, and then punished him by making him wait in the court from 10:00 am until 5:30 pm. Muralee s/o YS Menon, a senior Member who had previously handled some matters with the Judge when the latter had been a practising lawyer, added that he had lost respect for certain members of the Judiciary because they did not know how to treat lawyers with respect. If he were about to conclude his years of practice, he would have thrown his shoes at the Judge and asked BC’s counsel to plead for a deterrent sentence against him. Muralee s/o YS Menon concluded by asking BC to address all the issues he had raised.

The Chairman remarked that no Member of the Bar should be treated badly by a Judge, regardless of seniority.

Brendan Navin Siva said that BC had tried various ways of standing up to the Judiciary. He had seen problems resolved when BC raised specific complaints with the Judiciary. Therefore, the only solution he could see was that every lawyer, regardless of seniority or stage



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of practice, must stand up and raise issues, and not expect only the senior Members to do so. They should not, after being treated poorly by Judges, keep quiet and then wait until the AGM to complain about Judges’ bad behaviour or that BC had not done anything. If Members keep saying that they will not come forward with specifics because their livelihood will be put at risk, then he, as the Bar’s liaison, could do very little to help them. This mindset has to change. BC cannot complain about Judges in general, as the majority of them are doing their job properly. He cited, as an example, the most basic complaint — voiced by Charles Hector Fernandez —regarding the Judge who had gone on umrah without notifying the parties concerned about the intended leave. Lawyers who were affected by the Judge’s attitude ought to have complained directly to the CJ, President of the Court of Appeal, Managing Judge, or BC, so that the Judiciary would know that this was not an isolated incident. Brendan Navin Siva asked Members to email their complaints directly to the CJ’s email address.

MS Murthi of the KL Bar referred to the practical realities of life mentioned by DP Vijandran, whereby Members who are at the tail-end of practice can afford to speak freely about the Judiciary. He said that junior Members are not able to do that, as they recognise that their ricebowl is more important. He supported DP Vijandran’s proposal that BC appoint an independent person to sit in the court and report on what goes on there, which might be the solution that will also protect Members.

Srimurugan s/o Alagan of the Selangor Bar recalled that he had, at the previous AGM, raised the issue of e-filing, and questioned whether the CJ’s notification to Members about the commencement of the implementation of the e-filing system on 1 Mar 2011 had been legal, because the Rules of the High Court had not been amended at that point in time. Although nothing had happened since the last AGM, the Rules of the High Court had suddenly been amended late in 2011, to facilitate the e-filing system. Srimurugan s/o Alagan sought clarification from the Chairman as to what action BC had taken between the last AGM and the time the amendments to the Rules of the High Court had been passed.

Srimurugan s/o Alagan said that in the past, once lawyers filed a draft order in court, nothing further was required. Now they must not only to pay a charge of RM10 for the draft order, but also queue up to make payment and get documents scanned. He related how he had been a victim of the e-filing system on 8 Mar 2012. Although he had arrived early — 9:00 am — at the KL High Court to do e-filing, he was only able to leave around 3:30 pm. He further complained about the high fee of RM50 for filing and scanning a fresh summons for the first time, and wondered how the Judiciary had arrived at this figure, which was unacceptable to lawyers, and particularly to sole proprietors like him. The Bar had obviously not been consulted. Srimurugan s/o Alagan expressed his frustration that lawyers still had to wait for long periods of time to do e-filing, despite the complaint having been ventilated over the past one-and-half years. He asked that action be taken quickly to resolve this old complaint.

Srimurugan s/o Alagan said that based on personal experience, confidentiality of names of complainants who lodge complaints with authorities cannot be assured. There is a very strong likelihood that names will be leaked, thus exposing complainants to defamation suits. He said that it was not practical to expect junior Members to come forward to complain about Judges, because they are not courageous enough to do so at the early stage of their career. The problem is that it is the junior Members who appear in court most of the time on behalf of their senior lawyers. Srimurugan s/o Alagan asked BC to look into all these issues.

The Chairman said that the complaints about long queues at the courts’ service counters and the fee structure had been addressed in BC’s memorandum and that BC is in the midst of sorting them out. The incoming Council will look into the issues raised by Srimurugan s/o Alagan.

Balakrishna Balaravi Pillai of the Perak Bar complained about the way the court staff treated lawyers. He said that on a few occasions when he had wanted to use the court amenities such as the lift or the washroom, he had been stopped by court staff on grounds that the amenities were meant for court staff only. He then had


to explain to them that lawyers were also officers of the court and constituted part of the court system. He asked that this issue be explained to all court staff.

The Chairman said that BC will look into all issues and suggestions raised. He reiterated his request to Members to raise issues as and when they occur. BC will respect Members who wish to maintain confidentiality when making complaints.

3.6.10 Criminal Law Committee

RSN Rayer of the Penang Bar thanked BC and the Criminal Law Committee for having done a good job. However, he took objection to the Criminal Law Committee’s report regarding court-assigned counsel, which included this sentence: “At the same time, CLC will continue to work with the Professional Standards and Development Committee to develop and improve the quality of court-assigned counsel.”

In his view, every lawyer is a good lawyer in his own right. He said senior lawyers declined to do capital punishment cases because of the decline in the quality of Judges hearing cases. In drug trials, Judges seemed inclined to accept the evidence presented by agents provocateurs or undercover policemen as the gospel truth, without the former having to show any documentary evidence. As a result, senior lawyers like him, who do criminal trials, became frustrated. RSN Rayer related his experience when he appeared before a Judicial Commissioner, Tuan Mohd Amin Firdaus Abdullah, in a drug case. Instead of taking down notes while RSN Rayer was making his submission, the Judicial Commissioner played with his handphone, as he knew that the proceedings were being recorded via CRT. Ten minutes into the submission, the Judicial Commissioner told RSN Rayer that he would call for the defence, and asked RSN Rayer’s client to take the stand. That was when RSN Rayer blew his top. Subsequently, he took up the matter with the Managing Judge, YA Tan Sri James Foong. RSN Rayer said that upon learning that the same Judicial Commissioner would be hearing criminal trials in Penang from June 2012 onwards, he placed his objection on record with the Registrar and told her that if she pushed him, he would lodge a complaint with

the Malaysian Anti-Corruption Commission, as he had evidence to show that the Judicial Commissioner had given preferential treatment to certain lawyers. He said he was giving notice of this at the AGM so that if something were to happen in June, BC would then know who was responsible.

The Chairman said that the issue of quality of court-assigned counsel had been raised not only by Judges, but also lawyers, because some court-assigned cases changed hands midway and certain court-assigned counsel did not raise specific issues, either in cross-examination or submission at the appellate level. With respect to the trend of higher conviction and sentencing rates for drug cases, the Chairman said that BC had received merely anecdotal evidence, which was not helpful in terms of documenting such instances. Criminal Law Committee will organise a criminal justice forum for criminal law practitioners to discuss issues affecting them.

RSN Rayer said that the Criminal Law Committee ought to have been aware of the recent trend of higher convictions, because people are being hanged throughout the country. He added that he goes to the Pokok Sena prison regularly because almost all his clients are detained there, waiting to attend hearing of their appeals in the Court of Appeal. There were 98 convictions in 2011, compared to 22 in 2007. Based on the statistics, Judges are basically “slaughtering” people, and something has to be done about it. Many junior lawyers are keen to take up criminal law practice, and cannot be blamed if frustration sets in very quickly. RSN Rayer took objection to the phrase “professional standards and development” in the committee report, and said that junior lawyers should not be penalised, because they are doing their work.

The Chairman said that the phrase was not meant to penalise junior lawyers, as the collaboration with the Professional Standards and Development Committee was aimed at assisting them.

Baljit Singh suggested that RSN Rayer had taken the phrase out of context, and requested that it be retained. He said that since many junior lawyers are interested in



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doing criminal law work, the Criminal Law Committee is setting up a mentoring system, whereby junior lawyers will accompany senior counsel to court, to observe and learn from them, in preparation for taking on assigned cases independently. Presently, there is a shortage of lawyers taking up assigned cases.

Rajpal Singh s/o Mukhtiar Singh of the Selangor Bar, Chairperson of the Criminal Law Committee, said that the report was meant to encourage more young lawyers to take up court-assigned work, through the mentoring system. He invited RSN Rayer to come forward to assist in this regard, and to train junior lawyers. He said that the increase in the conviction rate had been raised with the CJ at the meeting with 25 Members of the Bar in the previous year. Rajpal Singh s/o Mukhtiar Singh invited Members to attend the criminal law forum, with a view to preparing a working paper.

In response to RSN Rayer, Gnasegaran s/o Egamparam, Chairman of the Penang Bar Committee, said that by and large, Judges in Penang do follow the applicable Practice Direction, except the Judicial Commissioner that RSN Rayer had referred to. The Penang Bar Committee and the Managing Judge had viewed the video recording of the relevant proceedings, but unfortunately, the recording had not captured any footage of the Judicial Commissioner playing with his handphone, due to the size and structure of the court. The crux of the complaint was that the Judicial Commissioner had called for the defence immediately after RSN Rayer had completed his submission, without considering the submission in full. The Managing Judge agreed with the Bar’s view and issued a warning to the Judicial Commissioner, who was given two weeks from the date of completion of the submission to come back with a proper decision. Subsequently, the Judicial Commissioner’s attitude in conducting trials improved. However, the Judicial Commissioner’s decorum in handling trials was still problematic, which the Penang Bar Committee was aware of. This issue had been raised with the Judiciary, and hopefully the problem would be solved soon.

P Arudkumaran concurred with the views of the earlier speakers concerning the poor treatment of lawyers, and asked the Bar to take a stand and support the motion by a vote of show of hands, with the aim of sending a message to the Judiciary that Judges ought to respect lawyers. This should also be mentioned at the press conference.

The Chairman said he saw no necessity for the vote, as it is the norm for lawyers, who appear in court as counsel, to be given due respect by members of the Judiciary. Nevertheless, he would mention this at the press conference.

Charles Hector Fernandez noted that many of the issues raised by the House had already been dealt with in the Criminal Law Committee’s report, and enquired what the responses were.

The Chairman said that the issues would be considered by the incoming Council at its next meeting.

3.6.11 Family Law Committee

The Chairman said that a circular will be sent to Members seeking their feedback regarding the public campaign to amend section 95 of the Law Reform (Marriage and Divorce) Act 1976, to push for an amendment to extend the legal obligation of parents to maintain their children, who are still pursuing their studies, beyond the age of 18 years. Senator Heng Seai Kie, the Deputy Minister of Women, Family and Community Development, is agreeable, but BC needs more facts and figures to continue its push for change.

3.6.12 Human Rights Committee

Ambiga Sreenevasan of the KL Bar placed on record civil society’s thanks to Members of the Bar for their sterling job in having monitored the BERSIH 2.0 rally on 9 July 2011, at potential risk to their own safety. She said that the proposed legislation to replace the Internal Security Act would come up soon, and asked the Chairman to demand a copy of the Bill, at the press


conference. She added that it was wholly unacceptable for the Government to keep pushing the new legislation forward without consulting anyone. This was what happened to the Peaceful Assembly Act before it was gazetted. Ambiga Sreenevasan said that BC must raise a huge fuss about how legislation was being passed by Parliament without copies being made available to the stakeholders.

With respect to the issue of judicial review, Ambiga Sreenevasan observed that leave applications that used to take only about five minutes now take hours to be heard. This was due to the numerous objections raised by the AG, particularly in applications involving the Government and abuses of power. Ambiga Sreenevasan said that the AG was not acting in the public interest, but against it, because the Government wanted to suppress facts. She asked BC to take a strong stand on this serious issue and seek the removal of the necessity for leave so that hearing of applications for leave could proceed straight to the merits.

The Chairman said that the assistance rendered by the police at the BERSIH 2.0 rally ought to be acknowledged. BC’s monitoring team, comprising about 100 to 150 Members of the Bar, worked closely with the police and took many photographs that were subsequently made available at the SUHAKAM inquiry, and are accessible via social media. The police were embarrassed when the Polis DiRaja Malaysia’s statements, issued a few days after the BERSIH 2.0 rally, turned out to be diametrically opposite to what was produced at the SUHAKAM inquiry. This might explain the change of culture within the police force.

Concerning the anti-terrorism legislation that will replace the Internal Security Act, the Chairman said that he had asked the AG for a copy of the Bill, but the AG could not accede to the request because of policy issues with the Executive. It is expected that the Bill will be tabled at the March/April 2012 sitting of Parliament.

On the issue of judicial review, the Chairman said that BC will comment on the pattern of the AG’s objections

to applications for leave, either at the press conference or at a more appropriate time. BC will have to compile a list of such occurrences first.

3.6.13 Environment and Climate Change Committee

Roger Chan Weng Keng of the KL Bar, and Co-Chairperson of the Environment and Climate Change Committee, thanked Members, particularly those from Selangor, Malacca and Pahang Bars, for their participation together with the rakyat, in the Himpunan Hijau 1.0 and Himpunan Hijau 2.0 public assemblies that had taken place in October 2011 and February 2012, respectively. He acknowledged the improvements in the judicial system in terms of double-sided printing of cause papers, but observed that single-sided printing was still being done for certain cause papers. He said that it was time that court staff be advised to do double-sided printing for all cause papers, which he had been requesting for a long time.

The Chairman said that this problem will be taken care of by the Task Force on Combined Rules of Court.

Roger Chan Weng Keng said that there is no need to include a provision to cater for double-sided printing of cause papers in the Combined Rules of Court, as court staff had already been advised of the proper way of printing a long time ago. To his request that BC follow up on the proposed setting up of a Green Court, based on the CJ’s recent statement, the Chairman said that BC will call for a meeting with the CJ.

Honey Tan Lay Ean of the KL Bar said that there is an increasing number of cases for judicial review pertaining to the issue of rights. She expressed her shock that the AG had asked for costs of RM10,000 in an application for leave that had been heard in chambers. The problem is that Judges refuse to sit in open court to hear these applications. Honey Tan Lay Ean said that the Judiciary should allow BC’s watching brief counsel to sit in for all applications for leave that are being heard in chambers. She asked BC to bring these two issues up with the Judiciary.



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The Chairman acknowledged that BC had received Honey Tan Lay Ean’s letter on the second issue.

3.6.14 Human Rights Committee

Latheefa Beebi Koya of the Selangor Bar commented that it was premature for the Bar to praise the police or assume that they had been embarrassed by their actions, since the ongoing SUHAKAM inquiry has yet to clear any misgivings regarding the conduct of the police in the BERSIH 2.0 rally. Further, many complaints lodged by Members against the police have yet to be attended to by BC as well as the police. She did not believe that a change of culture had taken place among the police, or that the police were behaving as they ought to. Young lawyers, especially those doing urgent arrest matters, were still being treated badly at police stations. If the police had performed their job properly at the Himpunan Hijau 2.0 public assembly, it should not be something out of the ordinary, since it was their duty to do so in the first place. The Bar should not bend over backwards to praise them, or give them credit too quickly.

Latheefa Beebi Koya then spoke about the how police obstruct lawyers from meeting their clients to obtain basic information regarding their arrests and what they are being investigated for. She also said that no hotline for this exists at the BC Secretariat. BC had been asked to do this some time ago after the arrest of the five BC Legal Aid Centre (KL) lawyers by the police at the Brickfields Police Station. Latheefa Beebi Koya said that despite the ongoing negotiations between BC and the Inspector General of Police, and the latter’s several assurances, Investigating Officers and Officers in Charge of Police District were still treating lawyers badly and undermining them in front of their clients. She asked the Chairman to withdraw the Bar’s praise to the police.

The Chairman took note of Latheefa Beebi Koya’s reservations and said that the incoming Council will look into the suggestion of the hotline.

Chew Swee Yoke recalled that in the 1970s, a hotline had been established between BC and the police following

a meeting held between BC, the Inspector General of Police and heads of districts, and asked if this could be re-established.

The Chairman said that a hotline of some form does exist. As for the BERSIH 2.0 rally, he had called the Inspector General of Police to complain about police brutality, but unfortunately, instructions had not been conveyed to the rank and file.

Sulaiman Abdullah suggested that the Chairman mention, at the press conference, that since the comforts of the courts rest with the Prime Minister’s Department, the Department should be asked to take note of the many complaints regarding the conduct of the police. Otherwise, when the police find themselves sitting in court and facing criminal and civil proceedings, Members of the Bar may not be able to assist them.

3.6.15 International Malaysia Law Conference 2012

The Chairman urged Members to attend the conference, as a number of good speakers had confirmed their participation.

3.6.16 LawCare Committee

The Chairman asked Members to notify BC if they are aware of a fellow Member whose health is poor, and who is facing financial difficulty.

3.6.17 Legal Profession Committee

The Chairman said that BC is looking into updating the compilation of BC rulings. Once this compilation has been approved, it will be available on the Bar website.

3.6.18 Professional Indemnity Insurance Committee

The Chairman said that attendance at Getting Started! Workshops has not been encouraging, despite the positive feedback from Members who had attended it. He urged Members to take advantage of the workshop, as well as “START”, the legal starter kit given to Members who want to start their own practice.


3.6.19 Syariah Law Committee

SI Rajah, who holds a Diploma in Syariah Law and Practice, said that the late Tan Sri Professor Ahmad Ibrahim had once declared that non-Muslims could practise Syariah law in certain states. He referred to the suit filed by a non-Muslim lawyer against the Fatwa Committee of the National Council for Islamic Religious Affairs, and the ruling that non-Muslims cannot be appointed as Syariah lawyers. By this rule, all non-Muslim lawyers cannot practise Syariah law for the time being, pending the outcome of the court’s decision. SI Rajah noted that this fundamental issue was not covered in the Syariah Law Committee’s report, and sought clarification on whether non-Muslim lawyers are barred from advising clients on aspects of Syariah law in other areas of practice such as conveyancing.

The Chairman clarified that the outgoing Council had not had the opportunity to address this issue, and said that it would be looked into by the incoming Council.

3.6.20 Task Force on Combined Rules of Court

Tommy Thomas referred to the issue concerning the abuse of the ex parte leave stage in judicial review, which had been highlighted by Ambiga Sreenevasan and Honey Tan Lay Ean earlier. He suggested that BC put forward its version of the Combined Rules, with the proposal that the provision regarding leave in Order 53 be removed, which would resolve the problem. Judicial review should be treated like any other initiating proceedings, because no other proceeding in the civil system has a leave process.

The Chairman said that BC’s request to do away with the leave process had been discussed with the Task Force, but he could not recall why the request had been left out of BC’s proposal.

Tommy Thomas said that regardless of the Task Force’s recommendation, BC must remove the leave process. The removal would solve the immediate problem and enable judicial review to be treated like every other system.

Brendan Navin Siva said that the final draft of the Combined Rules of Court would be circulated to Members of the Bar in a week’s time, and comments must be received within a month. Unfortunately, it would be too late to include Tommy Thomas’s proposed amendment in the Combined Rules of Court, as doing so would cause a delay of six months or so, on the AGC’s end. Brendan Navin Siva said that any change not requiring a legislative amendment can be effected through the Rules Committee. Accordingly, Tommy Thomas’s proposal can be dealt with separately in that manner. The Task Force had already made some changes to Order 53.

The President’s Report and committees’ reports were adopted by the House. Item 4 of the agendaTo consider and, if approved, to adopt the Audited Accounts of the Malaysian Bar for the year ended 31 Dec 2011

The Audited Accounts were adopted by the House, subject to amendment of the item “Other operating expenses” at page 368 of the 2011/12 Annual Report, whereby the expenses for the Legal Aid Fund (RM30,127), LawCare Fund (RM1,700) and Sports Fund (RM588), which were incorrectly attributed to “Council Members”, should be attributed to “Committee meeting” instead.



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Item 5 of the agendaTo consider any motions proposed in accordance with section 64(6) of the LPA

5.1 Motion no 5.1

“Motion regarding mandatory Continuing Professional Development Scheme”, proposed by Dipendra Harshad Rai (Chairperson, Bar Council Professional Standards and Development Committee), on behalf of Bar Council, dated 27 Feb 2012WHEREAS:(a)

(b)

(c)

the Bar Council Professional Standards and Development Committee (the “Committee”) has considered whether there is a need for the implementation of a mandatory Continuing Professional Development (“CPD”) Scheme for the Malaysian Bar;

having considered international trends in favour of the implementation of such programmes for the purpose of practitioners of law and the context of, and circumstances relevant to, the Malaysian Bar, the Committee has come to the conclusion that the implementation of a mandatory CPD Scheme would be to the benefit of the Members of the Malaysian Bar; and

the Committee has considered all the reservations or objections raised against the implementation of a mandatory CPD Scheme, and has prepared the CPD Guidelines (herein attached as Appendix A);

IT IS HEREBY RESOLVED THAT:(a)

(b)

(c)

(d)

the Malaysian Bar recognises the need for the implementation of a mandatory CPD Scheme;

to facilitate the transition for Members of the Malaysian Bar, the mandatory CPD Scheme will be implemented on a voluntary basis for the first two years;

the minimum number of CPD hours is 16 hours (units) in a 24-month cycle, obtainable by a variety of ways as listed in the CPD Guidelines; and

Bar Council be authorised to take all necessary steps, after the pilot two-year voluntary programme, towards the implementation of the CPD Scheme including, if considered necessary:

(i) adopting the CPD Guidelines;

(ii) accrediting courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iii) organising courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iv) putting in place measures to ensure participation in the CPD Scheme and to inculcate a culture of continuing professional development amongst Members; and

(v) doing all such other things that are incidental or conducive to the successful achievement or betterment of the mandatory CPD Scheme.


The Chairman said that the motion provides an opportunity for a debate on whether there is a need to set up a Continuing Professional Development (“CPD”) regime in the Malaysian Bar, in view of numerous complaints about the declining quality of lawyers. The question is whether the problem could be dealt with through the CBC, which will act as the gatekeeper to the legal profession, or through CPD for practising Members, with the aim of bridging the gap between senior Members who have the requisite skills and experience, and younger Members who generally lack

these. The solution is for all Members to take part in the change. The Chairman asked Members to give their feedback on the CPD Scheme, and invited Dipendra Harshad Rai of the KL Bar to move the motion.

Dipendra Harshad Rai said that all comments received from Members relating to the CPD motion had been taken into account. The motion reflects the collective voice of the Malaysian Bar. He pointed out the amendments BC had made to the motion, as indicated below:

(a)

(b)

(c)

(d)

(e)

the Malaysian Bar recognises the need for the implementation of shall implement a mandatory CPD Scheme;

to facilitate the transition to the mandatory CPD Scheme for Members of the Malaysian Bar, the mandatory CPD Scheme will be implemented on a voluntary basis for the first two years;

the minimum number of CPD hours is 16 hours (units) in a 24-month cycle, obtainable by a variety of ways as listed in the CPD Guidelines; and

Bar Council be authorised to take all necessary steps, after the pilot two-year voluntary programme, towards the implementation of the CPD Scheme including, if considered necessary:

(i) adopting the CPD Guidelines;

(ii) accrediting courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iii) organising courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iv) putting in place measures to ensure participation in the CPD Scheme and to inculcate a culture of continuing professional development amongst Members; and

(v) doing all such other things that are incidental or conducive to the successful achievement or betterment of the mandatory CPD Scheme; and

upon the completion of the two-year voluntary CPD Scheme, the Malaysian Bar is to decide the effective date of the implementation of the mandatory CPD Scheme.



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Dipendra Harshad Rai hoped that the amendments would dispel any notion, rumour or spin that the CPD motion was designed to deprive an advocate and solicitor of the ability to practise. He said that the Malaysian Bar recognises the need for a mandatory CPD Scheme, and asked that BC be given a period of two years to put the nuts and bolts of the CPD Scheme — as set out in the guidelines — into place. After the transition period, BC will update the Members on what has been done, and Members will then decide on whether there would be any sanctions associated with the mandatory CPD Scheme. Hence, there is no risk of any Member losing his Practising Certificate or being referred to the DB.

Dipendra Harshad Rai said that after having spoken to a number of Members and having read their comments, he found a common thread in Members’ views — that CPD is an important feature of a person’s career. So far, no Member had said he or she did not believe in CPD, or that a lawyer should stop learning the moment he or she is called to the Bar. The CPD programme had been in existence, in some form or other, for about 10 years, with courses organised by BC, State Bar Committees, or a third party. Many Members had attended courses that would now be recognised as part of the proposed CPD Scheme on a regular basis. BC feels that it is time to make CPD an integral component of the legal profession. The CPD Scheme would provide systematic maintenance, improvement and broadening of knowledge and skills for an advocate and solicitor’s professional career, and would allow him or her to take ownership of his or her professional career.

Dipendra Harshad Rai outlined the aims of CPD, and said that quality is something that BC takes very seriously. The goal is not so much about arresting the decline, but more about looking into how to constantly improve the standards of the profession. People look up to lawyers more than they look up to accountants, doctors, engineers and other professionals. Consequently, lawyers owe it to themselves to exhibit that quality and take CPD seriously. The Bar has the mechanism in place to support this. The inherent demand of liberalisation of the legal services sector forces Members to deal

with the problem of CPD. Members cannot operate in a vacuum or argue that, as lawyers, they do not need to develop themselves continually. The CPD Scheme is not intended to judge Members; it allows Members to develop professionally and to become better lawyers.

Dipendra Harshad Rai explained that the CPD Scheme is divided into cycles. Each cycle runs for 24 months, commencing from July 2012 until June 2014. The objective of the CPD Scheme is for an advocate and solicitor to accumulate 16 CPD points over a cycle of 24 months, or eight CPD points over 12 months. He said that there will be no sanctions at the moment, and any sanction the House consents to would only come into effect in 2017.

Dipendra Harshad Rai explained that Members would be voting for the motion only, and not for the Guidelines, which is a work-in-progress. There is confusion regarding the Guidelines, which some Members felt are difficult to comprehend and onerous. BC can choose not to adopt the Guidelines, depending on what the House decides in two years’ time. The Guidelines provide very broad options for earning CPD points, and cater for all Members and their needs. Members are not limited only to courses organised by BC or State Bar Committees, as conferences and seminars organised by third parties, either domestically or abroad, can also qualify for CPD points. It is up to Members to choose the programmes they wish to attend. If they want to teach, write or do research, they can do so and gain CPD points, as long as they can show that these are aimed at professional development. Senior Members will not be required to sit through a basic course, which might be disrespectful to their level of knowledge and experience. Instead, they could impart their knowledge and experience through teaching.

Dipendra Harshad Rai said that the legal profession needs a CPD Scheme. This will be made mandatory at a later stage, in order to give BC sufficient time to put in place a detailed mechanism and invest in programmes, seminars, workshops and courses. It will also enable BC to collate the necessary information and data, in terms of which courses are preferred or regularly attended,


and who the good speakers are, in order to structure an effective and comprehensive CPD Scheme.

Dipendra Harshad Rai said that foreign jurisdictions that have a mandatory CPD Scheme are Australia, Canada, Hong Kong, Ireland, Kenya, Singapore, South Africa, the United Kingdom (“UK”) and the United States of America. Many Members have confidence in these countries’ legal systems, judging by the number of cases regularly quoted. Their requisite number of CPD hours varies. BC chose eight CPD hours in a calendar year because this number is reasonable to achieve, since it is essentially one day in a whole year. Since members of other professions in Malaysia — such as architects, company secretaries, engineers, estate agents, financial planners, public accountants and surveyors — have a mandatory CPD Scheme, there is no reason why the legal profession should be different. If Members say that lawyers are special, but the profession does not have a mandatory CPD Scheme, they will look silly in the eyes of the other professions. Lawyers regularly hold themselves out to be better than other professionals, and champion a whole host of issues, including the rule of law and human rights.

Dipendra Harshad Rai said that the CPD Guidelines adopt a “trust the Member” approach. BC does not want to impose any obligation on Members on how to earn CPD points, but will leave it to them to determine their own professional development and to tell BC how many points they have earned. BC expects Members to do the right thing. The Frequently-Asked-Questions (“FAQ”) section in the Guidelines sets out the mechanics of earning CPD points.

Dipendra Harshad Rai said that through the motion, BC is seeking a commitment from the Malaysian Bar that CPD will be taken very seriously. In future, this mandatory CPD Scheme must contain sanctions to make it work effectively, but BC will come back to the House before any sanctions are imposed. In the meantime, a voluntary period is necessary to enable BC to finetune the programme and make it workable for Members, which is the aim of the motion. BC needs the support of Members for the mandatory CPD Scheme.

Julie Thomas of CrimsonLogic Malaysia conducted a four-minute demonstration on how a webinar works, as a method of teaching via the Internet, based on the sample module of BC’s Professional Standards and Ethics Course for pupils in chambers.

The Chairman thanked Julie Thomas and invited Members to express their views on the motion.

SI Rajah expressed his full support of the CPD Programme. He said that the quality of Members of the Bar, and of graduates being produced by local universities, is deteriorating. He added that BC had failed in its many attempts to have a common entry point into the legal profession. The CPD Programme, which is being promoted by BC, is an excellent idea that can raise the quality of up-and-coming lawyers, either directly or indirectly. SI Rajah related his personal experience on how he upgraded his knowledge by taking up a Master of Business Administration course. Thereafter, he applied to become a member of the UK Chartered Institute of Marketing. After he passed, the Institute advised him to pursue a CPD programme, and accorded him CPD points for legal talks he had given to the various institutions of learning in Malaysia. After completing the CPD programme, he became a Fellow of the Institute. SI Rajah said that BC’s CPD Programme will facilitate Members to attain the 16 CPD points required.

The Chairman corrected SI Rajah’s statement about the CBC and said that BC has not failed in putting in place a single entry point into the legal profession, as the CBC will definitely be implemented in the near future.

Naranya Singh s/o Asa Singh of the Perak Bar suggested that all Members above the age of 30 be exempted from the CPD Programme. He then asked Members who are approaching the end of their years of practice not to speak in favour of the motion.

Srimurugan s/o Alagan expressed his full support of the motion, but with the qualification that no fee be imposed on Members who want to attend any CPD courses in the initial years, since Members, particularly



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sole proprietors, are financially stretched by having to pay not only their BC subscription, but also the PII premium, e-filing fees, etc. Srimurugan s/o Alagan said that whatever knowledge a Member had acquired in law school would be obsolete by now because much had changed, and continued to change. Hence, it is in the interest of the Bar and Members to continually upgrade themselves by learning new skills and knowledge. Regarding the question of whether sanctions ought to be imposed on Members who do not comply with the CPD requirement, Srimurugan s/o Alagan said that no Member likes to be compelled. He suggested that BC use a “soft” approach to encourage Members to participate in the CPD Scheme voluntarily during the initial stage, and sanctions can be gradually imposed when Members are ready.

The Chairman said that the issue of sanctions is addressed in the motion. He added that most events organised by BC and State Bar Committees cost only about RM50 to RM100 each.

Srimurugan s/o Alagan said that the CPD programme should not be confined to law-related courses, but should cover any skill that may be relevant to a Member’s practice. He cited the case of a South African lawyer who attended a course on wine production because the knowledge was relevant to the case he was handling on behalf of his client. The course was recognised by the South African Bar for the purpose of CPD points.

Leonard Teoh Hooi Leong of the KL Bar questioned what BC had done since the scheme was first introduced nine years ago, since the latest motion is BC’s fourth attempt. He commented that the Guidelines were drawn up in a slipshod manner, although he meant no disrespect to Dipendra Harshad Rai who had done some good work. He said that the recent article in The Star by Shaila Koshy did not provide statistics relating to the vote taken on the CPD motion in 2003. In 2005, based on the quorum then of one-fifth of the Membership of the Bar — ie about 2,000 Members — fewer than 500 Members supported the CPD motion. This was due to the fact that under the LPA, the quorum for general meetings is required only at the commencement of the meeting.

Leonard Teoh Hooi Leong further questioned the rationale for including attendance at AGMs for CPD purposes because he had observed that some Members of the Bar registered their attendance for the AGM and then left. He said that Members in their twilight years, like him, needed to sign up for CPD but the programme must relate to the latest developments in law, so that it benefits such Members. The proposed exemption of a category of Members based on age and seniority at the Bar is not good enough. The Law Society of Hong Kong imposes a strict exemption for Members who are above 75 years old and have more than 40 years of practice. They are required to give an undertaking to the Law Society that they will not be in active practice except to affirm affidavits and attest signatures. Leonard Teoh Hooi Leong referred to the article on CPD in The Star by Roger Tan Kor Mee (of the Johore Bar), who had expressed his reservations concerning the conflict with the LPA and the Federal Constitution. Roger Tan Kor Mee had mentioned that the Law Society of Singapore has a special department that conducts CPD courses and ensures the availability of good speakers. Leonard Teoh Hooi Leong said he would not support the motion in its present form because he resents anything that is mandatory, and added that it is the duty of every lawyer to upgrade his legal knowledge, without compulsion.

The Chairman pointed out that Leonard Teoh Hooi Leong’s comments related to the Guidelines. According to the motion, there is no compulsion on Members during the two-year trial period, as the scheme is voluntary. The motion provides that BC must come back to the House after the trial period is over, to obtain the House’s consent to make the CPD Scheme mandatory.

Leonard Teoh Hooi Leong remarked that although BC had been given nine years to set up the CPD Scheme, yet it was asking for another two years.

GK Ganesan expressed his unreserved and unqualified support for the motion, because the CPD Scheme cannot become mandatory unless the House gives its consent and an appropriate amendment is made to the


LPA. GK Ganesan asked BC to set up a CPD Committee to look into a number of suggestions: (a) An appeal mechanism be made available

to Members whose CPD credits may not be recognised by BC;

(b) CPD courses must be run by BC around the time when Members apply to renew their Sijil Annual, so that Members who do not meet the CPD requirements can make up for the deficiency;

(c) Members who earn more than the required number of CPD points in one cycle should be allowed to accumulate the excess point(s) for the following cycle;

(d) There must be sufficient staff support in terms of looking for suitable lecturers and organising appropriate courses;

(e) Octogenarians should not be exempted because they are the very ones who need to attend CPD courses, as some of them might suffer from a lapse of memory;

(f) There must be an independent standards body to maintain standards for the CPD Scheme; and

(g) The CPD Programme should be open, and BC should not have a monopoly over the courses approved for CPD points.

Jason Kay Kit Leon of the Malacca Bar said that his sole intention in attending the AGM that morning was to oppose the motion, but he had a change of mind after BC amended the motion, particularly with the addition of paragraph (e). He asked that BC be given the opportunity to try out the Scheme during the two-year trial period. If it does not work, the House can reject it. Jason Kay Kit Leon expressed his support of the motion since it does not have a mandatory element.

Ngan Siong Hing of the Perak Bar said that although he had not attended the AGM over the last three years, he had made a special effort this year solely to support the motion, because he believed that BC had really changed for the better, compared to the Council of 1974, the year he joined the Bar. He recalled that Karpal Singh and he had struggled in Parliament during those days in relation to the debate on the proposed amendments to the LPA to impose restrictions on Members who held

political office, thereby rendering them ineligible to serve as Council members. This was because BC had not spoken up on the issue. Now BC is different because it makes a stand and calls for change for the better.

Ngan Siong Hing said that England’s CPD programme is something that cannot be taken lightly. If a person wants to organise a course, he or she must communicate with the relevant statutory body to obtain recognition for the course so that CPD credits can be accorded to attendees. BC could consider applying this approach in Malaysia during the two-year trial period. In our country, unlike in England or Hong Kong, the legal profession is fused. When a person who qualifies as a barrister in England returns to Malaysia, and spends the rest of his or her career doing conveyancing work, that Member needs to undergo CPD to change his or her mindset. If a person qualifies from a local university, he or she can practise both conveyancing and court work, but if he or she chooses to practise his or her own law, then the CPD should apply to him or her. The CPD Programme should change the minds of attendees and broaden their thinking.

Ngan Siong Hing recalled how naïve he had been when he first started practice, as he had wrongly addressed a simple letter to a bank using the article “the” preceding the bank’s name. The bank’s regional manager pointed out the error to him in a diplomatic manner, and he took it as a form of professional education. Sometimes, people do not understand the importance of small things that can be learned through CPD. Ngan Siong Hing said that if doctors around the age of 65 and above who practise occupational medicine are required to undergo CPD, then BC should not exempt octogenarians because, by attending CPD courses, they will receive new ideas that will help them to advance in this modern computer-savvy age. He hoped that many Members would support the motion.

Jeremiah Ravindran Gurusamy of the KL Bar said that there are two types of courses: Professional Standards and Development courses and Continuing Legal Education courses. BC also recognises other courses — such as “How to Start Your Office” — which



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are not strictly limited to legal education. Some of the programmes run by the KL Bar Committee have a minimal fee of RM30 for pupils, and RM50 for lawyers, to cover the cost of refreshments and materials. The KL Bar Committee had decided, two days earlier, to organise at least one course free of charge each month.

DP Vijandran said that while participating in this AGM, he had unwittingly gained some form of professional development because he realised that he had mistakenly stated that he was at the tail-end of his practice. He acknowledged the valid point made, that octogenarians should not be given an exemption, because it is true that as one ages in the profession, one gets set in one’s ways. One then thinks one already knows what one ought to know, and one then becomes complacent. Complacency is a dangerous thing and should be rectified at every stage of one’s profession, and not only at the junior level. DP Vijandran said that new lawyers who enter the profession are familiar with the latest developments in the law and have the most advanced topics under their belt, whereas senior Members have more or less settled down on the basis of what they had learned a long time ago. Hence, junior Members may not need CPD as much as senior Members.

DP Vijandran proposed that the exemption be removed and that CPD be made applicable to all Members of the Bar, because learning should never stop. The moment one stops learning, one will reach one’s actual age. Members have to continue to learn because there are too many areas of law to cover. It is just impossible for an individual lawyer to cover all aspects of law on a continual basis, amidst the endless changes that are taking place. Hence, a CPD Scheme is necessary, as it will provide Members with the impetus to improve themselves. Members have to recognise the principle that they need CPD. The two-year trial period is a good move as it will help BC and Members to work things out. Although BC does not need the consent of Members to have the trial period, a long-term commitment for CPD needs to be obtained from the House. DP Vijandran said he would vote in favour of the motion subject to the removal of the exemption for octogenarians.

Richard Wee Thiam Seng of the KL Bar said that the National Young Lawyers Committee (“NYLC”) had debated this issue during its last few meetings. He was pleased to inform the House that NYLC fully supports the motion, even before BC’s amendment. Concerning the basis for computing CPD points, he asked if articles written on law blogs by practitioners in small law firms would qualify for CPD points. If the answer is yes, he would urge Members to write and have their articles published in Praxis and Relevan — BC and KL Bar Committee’s publications, respectively— as these would be avenues open to Members to earn CPD points. Richard Wee Thiam Seng asked BC to look at the possibility of recognising articles written by Members and posted on Facebook and Twitter, for CPD purposes, because many lawyers prefer to tweet each other rather than communicate on a face-to-face basis. Social media has become a part of modern life and BC must adapt and bring it into the Bar’s system. Another issue is how to ensure full attendance by Members at CPD programmes. Richard Wee Thiam Seng urged BC to stop trying to find ways to regulate Members’ conduct, because Members should be left to regulate their own conduct. Members should be honest, and not merely sign up for a CPD course, without attending it, and later claim CPD points.

Saravanabavan s/o Mathialagan of the Perak Bar said that the CPD Scheme should not be mandatory. He said Dipendra Harshad Rai’s comparative study of the mandatory CPD schemes in various foreign jurisdictions had not specified whether those CPD schemes had produced the desired effect. BC’s CPD Guidelines contain only raw data, not empirical evidence. According to the statistics on the UK CPD scheme, published in a recent article by Aldrich in 2011, a large number of barristers who did not collect sufficient CPD points were unable to renew their Practising Certificates, and were left fuming. The Bar Standards Board of the UK conducted interviews with these angry barristers. Saravanabavan s/o Mathialagan questioned whether Members wanted to experience such an outcome here. He asked if more research could be done regarding the other jurisdictions, and proposed that if Members’


right to practice is dependent on accumulating points, BC should consider reducing the subscription rate for all Members.

V Vishnu Kumar of the Selangor Bar expressed his concern over the possibility that Members who fail to collect sufficient CPD points may resort to the High Court remedy for leave to apply for a court order to compel BC to issue their Sijil Annual. He pointed out that the Guidelines did not take into consideration the fact that many solicitors are involved in social and cultural work, and retained as secretaries by several societies, although the work may not be connected with their legal practice.

The Chairman said that BC discussed the issue of CPD sanctions the previous day and decided that the CPD Scheme will not be tied to the issuance of Sijil Annual.

RSN Rayer said he had concerns as to whether the CPD Scheme would help to enhance his skills as a criminal law practitioner. He would oppose the Scheme if it is mandatory and linked with the issuance of Sijil Annual. He questioned if BC was deliberately whittling down the effect of the motion because BC knew that if CPD was made mandatory, the House would oppose it. He recollected that BC had agreed with the AGC regarding certain important amendments to the LPA concerning DB, rulings and disciplinary procedures the previous year, without consulting the Bar. The Bar then took the former President to task at the last AGM for not having sought feedback from Members. RSN Rayer said that unless BC can give Members a clear blueprint regarding CPD, he was not prepared to support the motion.

RSN Rayer informed the House that lawyers in Penang go to court on Sundays. Hence, Saturday is the only free day for them to spend time with their families. He said he had serious concerns because Members in Penang would now have to spend their free time attending CPD courses. Lawyers practise throughout Malaysia, but the problem is that courses are frequently conducted by BC in KL. He asked BC to explain why this was so. He drew Members’ attention to page 208 of the Annual Report,

under the heading “Advisory and support service for Members” in the LawCare Committee’s report, wherein it is stated:

Stress, depression, health problems and addictive illnesses can affect the careers and practices of Members, cause misery to afflicted Members and their family members, and may even lead to suicide.

RSN Rayer said that instead of doing something to help Members in their practice, BC is taking steps to impede Members’ progress by imposing a mandatory CPD Scheme on them. He admitted that he does make mistakes, and tries to improve himself by reading up judgments and books on cross-examination. He asked BC not to make the CPD Scheme compulsory or treat Members like schoolchildren. If Council members have nothing better to do than to make such proposals, he would put forward other suggestions.

RSN Rayer criticised paragraph 2.3(e) of the Guidelines, which states:

The course must be presented in a suitable setting conducive to a good educational experience. The course must be scheduled at a time and location so as to be free from interruption from telephone calls and other office matters.

RSN Rayer said that the paragraph would restrict him from answering his wife’s telephone call, should she call him in the midst of a CPD course. He asked BC to go back to the drawing board and come up with a proper blueprint and not force the CPD Scheme upon Members.

The Chairman remarked that it was unfair of RSN Rayer to make such comments. The amount of work done by BC during the year is reflected in the Annual Report.

P Jeyakumar of the KL Bar said that the motion is mandatory in nature, as evidenced by the wording



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of paragraph (a) of the resolution, which states that “the Malaysian Bar shall implement a mandatory CPD Scheme”. He said that BC was trying to whittle down the effect of the motion by amending paragraph (e), regarding the effective date of the implementation of the mandatory CPD Scheme.

P Jeyakumar said that the motion imposes an obligation on BC to come back to Members for a date to put the scheme into effect, but the CPD Scheme would still be mandatory. He said that personally, he does not like anything that is mandatory in nature, and prefers the usual manner of learning things.

Rathakrishna Shanmugam of the Perak Bar, a former BC employee in the continuing legal education department, said that in 1997/98, the department recorded a surplus of RM30,000. The surplus increased to RM200,000 the following year, during the economic downturn. The registration fees then were RM30, and RM50 to RM100, for pupils and lawyers, respectively. He said that when he began practice, he used to frequent the Bar library every fortnight, with the aim of improving himself professionally. In his view, BC should not force CPD on Members or treat them like schoolchildren. He said that he had been in criminal practice for 10 years, and if he did not know something, he would consult his good friends, which was the trick of the trade. He questioned the type of lecturers BC would engage for the CPD programmes, and anticipated that BC would engage “friends” because BC is out to make money from Members. He concluded by saying that he would oppose the motion.

The Chairman commented that Rathakrishna Shanmugam’s comments were untrue and unfair, and assured Members that BC has no intention of making money out of them.

Jagjit Singh of the KL Bar expressed his full support for the motion despite the fact that he had been vocal on the issue over the last few occasions. He said that the CPD Scheme is a good idea and will certainly benefit all Members, especially the senior ones, who would not have known about Anton Piller orders or Mareva

injunctions when they commenced practice, as such injunctions were not in existence then. He said that criminal law practitioners, himself included, who had lost in a number of cases and whose clients had been sent to prison or were on death row, need to attend lectures conducted by criminal law experts such as Baljit Singh. Regardless of whether Members win or lose cases, or whether they practise criminal or other areas of law, the CPD Scheme will benefit them in the long run. While it is true that nobody likes to be compelled, the time has come when the Malaysian Bar must become a mature Bar and look at the issue positively. Jagjit Singh said that since he had spoken to the Chairman privately about the Guidelines, he would not raise that matter at the meeting. He asked that the motion be put to a vote.

Tommy Thomas said that it is a truism that a lawyer’s real education begins on the date of his or her call to the Bar. Whatever education he or she had received before that date, whether at Oxbridge or any other university, or during the nine months of pupillage, had merely been preparatory. The late Justice Harun Hashim was absolutely correct when he reminded Members that their date of admission was the beginning of their education. Tommy Thomas said he would like to inspire and encourage Members of this honourable profession to note that public interest places a demand on them to perform their services as competently as possible. Lawyers must live up to that high standard on a day-to-day basis. He cited the shining examples of two great and illustrious lawyers — Peter Mooney and Mahadev Shankar — that Malaysia has produced. What distinguishes them from the other 13,500 Members is the single important factor of self-education, arising from their diligence, industry and hard work. Tommy Thomas urged Members to try and improve themselves in order to be the best and the brightest in their daily practice, which would require self-education. If Members do not possess the discipline to self-educate, eventually Parliament will intervene and tell lawyers that they are no different from the other professions. He said he was delighted with the humility shown by DP Vijandran and Jagjit Singh, two outstanding senior Members, who admitted that they need to be taught


daily. Tommy Thomas proposed that there be no exemption from the CPD Scheme for any category of Members.

Ambiga Sreenevasan said that she was delighted to hear, from a consumer’s public interest point of view, that doctors are keeping themselves up to date through the medical profession’s compulsory CPD programme. She said that she is still learning, even after completing almost 30 years of practice. The problem with lawyers is that most of the time, they do not know what they do not know. Hence, the CPD Scheme is the only way to find this out. Lawyers should have the humility to accept the proposed CPD Scheme and give it a try. In her view, the CPD requirements are not difficult to comply with, and ought to be made mandatory right from the start, and not voluntary for the first two years. She asked BC to make the Scheme as easy as possible for all Members, so that their minds will be open to it. She said she would be very happy to learn as well as teach. Members who do not want to learn can teach, provided they are capable of teaching. The CPD Scheme will raise the standards of the Bar and make Members look good in the eyes of the public, because it will show that they want to keep learning and to become better lawyers.

Dipendra Harshad Rai noted that most of the comments that had been raised concerned the Guidelines, which is a work in progress. Over the next two years, BC will work very hard to finetune and make the Guidelines as seamless as possible, to ensure minimal disruption to

Members’ daily practice. He said that the CPD scheme needs to be mandatory, but the word “mandatory” is basically an idea. If Members can accept that CPD is an important part of their professional career, mandatory is really a mind-over-matter issue. The CPD Scheme will not affect how Members operate as advocates and solicitors. If Members want Malaysia to be a good and preferred legal destination when liberalisation of the legal services sector takes place, they must show that professional development is an integral part of their career. It is really an ideological argument. The mandatory element is related to reporting of CPD compliance when Members apply to renew their Sijil Annual. Even if Members have zero attendance, it does not matter, as the aim of reporting is to enable BC to know what courses appeal to Members, what should be avoided, and who the good teachers are. Dipendra Harshad Rai concluded by quoting the late Steve Jobs, who had said, “Be a yardstick of quality. Some people aren’t used to an environment where excellence is expected”, and urged Members to vote on the motion with open eyes.

Voting on the motion took place by a show of hands.

Resolution:

The motion, as amended, was put to a vote and was carried: 321 votes in favour, 137 against, and nine abstentions.

The Chairman said that BC will take note of all comments made and do its best.

5.2 Motion no 5.2

Motion regarding the Advocates and Solicitors Disciplinary Board, jointly proposed by MS Murthi, Kumar Thangaraju, Sundaresan Krishnan and Thanalakshmi G, dated 1 Mar 2012(a)

(b)

Whereas the Advocates and Solicitors Disciplinary Board [Disciplinary Board] is a constituent part of the Legal Profession and reports to the Supreme Body of the Profession being the General Meeting of the members.

Whereas the Disciplinary Board has a duty to act without fear or favour and to uphold the charter of the Profession which is the Legal Profession Act 1976 and in particular the fundamental doctrine as spelt out in section 42 (1) (a) “to uphold the cause of Justice without regard to its own interest and uninfluenced by fear or favour.”



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(c)

(d)

(e)

Whereas it has been admitted publicly by its members that the Disciplinary Board is continuously under pressure from disgruntled complainants whose complaints were not decided in their favour.

Whereas it has been perceived to be a fact by some Members that the Disciplinary Board errs in favour and on the side of the complainants and against the members, even when the scales of justice are evenly balanced.

Whereas as a result of this trend, the complainants have resorted to the Disciplinary Board on frivolous complaints and admittedly abused the legal process by filing complaints with the ulterior motive to pressurise the members to submit to the complainants’ unreasonable demands on the threat of being hauled up before the Disciplinary Board.

Now it is hereby Resolved that:(1)

(2)

The Disciplinary Board be and is hereby censured for injuring the interest of the members by suffering some complainants to abuse the legal process of filing complaints, and on some occasions erring in favour of the complainants when the scales of Justice are evenly balanced.

The Disciplinary Board is directed to exercise its discretion without regard to its own interest, uninfluenced by fear and summarily dismiss any complaints by any present or ex-employees of any members employed directly or through their partnership firm or nominee companies, when the complaint is grounded on the terms and conditions of employment, termination or dismissal thereof.

MS Murthi said that due to time constraints, he would concentrate only on the first part of the motion, relating to censure. He then highlighted the grounds for the motion. He said that the fundamental object of DB is to provide speedy redress to legitimate complaints. The Tun Hussein Onn Committee Report had recommended two safeguards for complaints to be vetted by an Investigating Tribunal (“IT”). Only complaints that had been filtered could be tried, and such complaints could be challenged via judicial review. Nevertheless, the two safeguards were summarily removed by the 2006 amendments to the LPA, on the basis that lawyers had abused the process of judicial review and the IT process had been a waste of time. Thereafter, 3,600 lawyers assembled at an Extraordinary General Meeting, which culminated in the finetuning of the LPA amendments vide the VC George Report.

Unfortunately, although six years had lapsed, the amendments had not yet been implemented. MS Murthi stated his hope that the amendments would be tabled and passed in 2012, in light of the assurance given by the Chairman earlier that morning. He alleged that some complainants had used the DB mechanism

as a pressure tactic against lawyers, but that DB is powerless because if it took a strong position and summarily dismissed the complaints, it would have to face the wrath of complainants. On the other hand, DB wields draconian powers against lawyers. MS Murthi quoted the statement made by the former President of the Bar at the 64th AGM held on 13 Mar 2010, under the heading “Motion against the Advocates & Solicitors Disciplinary Board, jointly proposed by Derek Tan Boon Chong, MS Murthi, Lian Meng Wah and Mohamed Nordin b Hj Mohd Yusoff, dated 18 Feb 2010” in the minutes of that AGM:

The Chairman briefed Members on the disciplinary procedure. He said that DB looks at complaints against respondents right up to the end of the disciplinary process. For every complaint thrown out by DB, BC receives many letters from complainants alleging unfairness by DB. These complaints are also extended to the Biro Bantuan Guaman, the Ministry of Justice, Consumers Association of Penang, etc by complainants. The impression given to these bodies is that all lawyers are crooks and DB acts to protect them.


MS Murthi said that since all complaints are now referred to a Disciplinary Committee, DB’s vetting process and judicial review no longer exist. Lawyers are, therefore, made to go through the entire disciplinary process. The second stage is even more pernicious. Although the law provides that the burden of proof lies with the complainant, who is obliged to prove his complaint beyond any reasonable doubt, this does not happen at DB. On the contrary, the burden of proof is placed on lawyers to prove that they are innocent. If they are unable to do that, they will be convicted or punished. Hence, the scales of justice are not evenly balanced. The fact that DB errs on the side of the public as opposed to lawyers is borne out by the statement, made in 2006, by the then-President of the Bar:

The Tun Hussein Onn Report, which reviewed the LPA regarding the discipline of Members, in its preamble, suggested that the negative perception of the public of the profession, especially regarding dishonest lawyers, was the main reason for its establishment to consider amendments to the LPA to address the sorry state of affairs. No doubt the LPA amendments were drafted with this primary purpose in mind as well. For the privilege of self-regulation, it can be said that one may have to err on the side of the public interest, while it may conflict with the interest of the individual Members.

MS Murthi said that in other words, if the scales are evenly balanced, DB errs on the side of the public interest, at Members’ expense, and asked why this should be so when lawyers are equally entitled to the protection of the law. He then related three cases to illustrate this point. The first case involved a lawyer who was afraid of being named. The lawyer’s counsel met MS Murthi and disclosed to him the facts relating to a sale and purchase transaction. The Sale and Purchase Agreement was signed and money was deposited with the lawyer as stakeholder. When the sale was aborted, the purchaser asked for a refund of the money. The lawyer wrote to the seller informing him about the purchaser’s request and sought his consent to release

the money, but the seller objected, as he deemed the sale to be still valid. The lawyer then legitimately filed an interpleader summons and affidavit, which was served on the party. The purchaser filed a complaint to DB, alleging that the lawyer had refused to release the stakeholder’s money. The lawyer filed a reply enclosing exhibits of all the relevant documents in the interpleader summons. The lawyer was hauled up before DB and the complaint was dismissed after he gave his explanation. MS Murthi asked why the lawyer had to be subjected to the whole disciplinary process, since the interpleader summons had already been filed. DB ought to have summarily dismissed the complaint, but did not have the courage to do so. It was also afraid that the complainant would, as mentioned by the former President Ragunath Kesavan, start writing to everyone.

MS Murthi then proceeded to describe the second complaint, involving Nadarajan Veraya who had been employed in the firm of Messrs Bhag Sulaiman & Co. After Nadarajan Veraya had left the firm, a sum of RM280,000 was sent to the firm in respect of a case that he had previously handled. The firm withheld the money, but a complaint was directed at Nadarajan Veraya alleging that he had taken the money. At first, Nadarajan Veraya was not aware of the complaint, but once he came to know about it, he met the complainant and told him that he did not want to waste his time. If the firm did not want to release the money, he would pay the sum to the complainant, and he did so. Thereafter, he did not bother about the matter any further. However, DB proceeded with its inquiry into the complaint, in Nadarajan Veraya’s absence and without his knowledge, and subsequently made an order to strike him off the Roll. Nadarajan Veraya only realised it when he came across a notice to that effect in the press. He then went to DB to find out what had happened and thereafter filed an application for an extension of time to appeal against the DB order. DB told him that it would grant him the extension, on condition that he must not sue DB or the complainant. Nadarajan Veraya refused, and DB objected strenuously to his application for leave. The High Court, comprising three Judges, dismissed Nadarajan Veraya’s application



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on the basis that he was out of time. In respect of of his appeal to the Federal Court, he had no choice but to agree to DB’s condition. It has been two years since he was struck off the Roll.

The Chairman interrupted MS Murthi at this stage and said that he had, at the outset of discussion on the motion, given him 10 minutes to address the House, and reminded him that the time limit had expired. Pursuant to the rules governing general meetings, which empowered the Chairman to regulate the proceedings, the Chairman asked MS Murthi to conclude his remarks in one minute. MS Murthi refused to accede to the Chairman’s request, and remarked that there was no point in putting his motion to the AGM if he was not allowed to move his motion. He indicated that he would continue to speak as he had a lot of issues to raise.

The Chairman pointed out that MS Murthi was raising issues outside scope of the motion.

MS Murthi said that he wanted to elaborate on the reasons for a censure against DB. He registered his protest regarding the time limit imposed by the Chairman, stating that he was entitled to present his motion because it concerned the livelihood of Members. He accused the Chairman of imposing the time limit on him, and demanded that he be given another 10 minutes.

The Chairman said that the House was anxious to move on to the next motion.

MS Murthi said that he could not proceed if the Chairman wanted to constrain him, and would leave it to the Chairman. He then left the stage under protest.

The Chairman said that the Malaysian Bar is a self-regulated body. Paragraph (2) of the resolution concerned individual cases, whereas paragraph (1) is a statement that paints the DB with a broad brush, without any justification.

GK Ganesan said that the motion attacking the DB is similar to previous motions filed by MS Murthi over the last three years. If the Bar wants DB to function as an independent body, Members must allow DB to do what is right. There are legal processes in place to protect practitioners. Based on the words used by MS Murthi, such as “DB errs in favour and on the side of the complainants”, “trend”, “ulterior motive”, DB be “censured for injuring the interest of the Members” and DB be “directed to exercise its discretion”, the Bar might as well not have DB, because if Members can come to the AGM and tell DB how to do its work, then Members can do what they like. For these reasons, GK Ganesan opposed the motion.

Roger Tan Kor Mee said it would not be proper for the House to adopt the motion, especially when there is a process for appeal available to Members against any DB decision that they are not happy with. If the proposers of the motion were referring to complaints that had been lodged against them, it would be highly improper for them use the AGM for such a purpose. He therefore opposed the motion.

S Krishnan of the KL Bar said that according to MS Murthi, DB Members, who are intelligent lawyers representing the Bar, should possess minds of their own, and not merely accept a complaint that is referred to DB. He described the case of a complainant who disliked a lawyer he was working for. When the lawyer terminated the complainant’s contract of employment because the work was unsatisfactory, the complainant lodged a complaint at DB, when he ought to have gone to the employment office instead. DB should not accept the complaint, as there is no basis to investigate such a complaint.

The Chairman said that in case Members were labouring under the wrong impression, statistics support the fact that there are complaints that are summarily dismissed by DB.

Resolution:

The motion was put to a vote, but was not carried: 11 votes in favour, 91 against, and 13 abstentions.


5.3 Motion no 5.3

Motion regarding the Advocates and Solicitors Disciplinary Board, proposed by Naran Singh and jointly seconded by Pritam Singh Doal, GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012(1)

(2)

(3)

(4)

We all the members of the Bar had been forced to contribute towards the Advocates & Solicitors Disciplinary Board.

We are also made the victims and scapegoats for frivolous and unnecessary complaints.

At times, the Complainant simply files in a complaint and do not attend the inquiry, but the Disciplinary enquiry is conducted in the absence of the Complainant; where is the principle of natural justice and the right to cross examine the Complainant.

Let it be, whatsoever the most important aspect of the Advocates & Solicitors Disciplinary Board is when a lawyer is suspended or struck off the roll and has filed an appeal to the High Court, the particular lawyer has no choice but to seek the assistance of a practicing lawyer to represent him, the question that arises who is paying the legal fees to this lawyer. Should it not be the Bar Council, in particular the Advocates & Solicitors Disciplinary Board.

NOW IT IS HEREBY RESOLVEDThat a Motion been taken, that the Bar Council in particular, the Advocates & Solicitors Disciplinary Board should bear all expenses incurred by a lawyer who files an appeal to the Higher Courts in respect of any adverse decision made by the Advocates & Solicitors Disciplinary Board against any lawyer.

Naran Singh said that when a lawyer, against whom disciplinary action is taken, files an appeal to the High Court and subsequently to the Federal Court, he normally engages another advocate and solicitor to act for him, and pays the latter’s expenses out of his pocket. Naran Singh proposed that such expenses be paid to the aggrieved lawyer out of the Discipline Fund.

The Chairman said that on occasions when BC had erred in its complaint and the aggrieved lawyer succeeded in his appeal to the court, with costs awarded against BC, BC had duly fulfilled its obligation. The Chairman added that since all solicitors acting for BC do so on a pro bono basis, BC had, at its meeting held the previous day, taken the view that it would not support the motion.

Resolution:




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5.4 Motion no 5.4

Motion regarding the death penalty, proposed by Naran Singh and jointly seconded by Pritam Singh Doal, GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012(1)

(2)

(3)

(4)

(5)

(6)

(7)

As we all know, passing death sentence on any person in the world is the most draconian and heinous sentence, more so in a civilised nation like ours.

We are no more in the era of tooth for tooth, blood for blood, then why is there a necessity to have death sentence.

For your kind information, Mr Chairman, and my fellow Members of the Bar, there are hundreds of prisoners in the Malaysian prison today having death sentence been passed on them, either, by High Court, the Court of Appeal and the Federal Court.

Mr Chairman, my fellow members of the Bar, as we all know, death sentence is not a solution to stop crime, therefore, what is the necessity to have this sentence for the sake of taking a human life.

In most part of the world, death sentence has been abolished because of its draconian effect.

What happens after death sentence has been carried out and many years later, the truth prevails that they had been impropriates during trial, can we bring back their lives?

In Malaysia today, we have two (decided) and reported cases where the court found improper conduct on the part of the police during their arrest and investigation which could have led to death sentence. — Lee Eng Kooi — Chang Kin Yin

NOW IT IS HEREBY RESOLVEDThat the Malaysian Bar takes immediate steps including going to the streets for demonstration, sending a memorandum to His Majesty The King of Malaysia, to repeal all acts which include death sentence and to all those who are waiting for death sentence to be substituted with life imprisonment.

Naran Singh said that according to an article carried by The Star on 2 Mar 2012, the Minister in the Prime Minister’s Department, Dato’ Seri Mohamed Nazri Abdul Aziz, had stated his opposition to the death sentence and sought public support for its proposed abolition. Based on statistics compiled by the Prisons Department, the number of people waiting to be hanged is alarming. Members must accept the fact that the criminal justice system in Malaysia is not perfect. He said that his motion calls for the Bar to take all measures to stop the death penalty.

The Chairman informed Naran Singh that BC shared his view regarding the death penalty, and that Charles Hector Fernandez, N Surendran, Amer Hamzah Arshad and Sreekant Pillai had moved a similar motion in 2006. BC had looked at Naran Singh’s motion at the Council meeting held the previous day, and took the view that it should not be adopted. The Chairman then invited Andrew Khoo Chin Hock, Chairperson of the Human Rights Committee (“HRC”), to explain the reasons behind BC’s stand.


Andrew Khoo Chin Hock of the Selangor Bar said that BC fully supports the principle that the death penalty should be abolished. The resolution calling for the abolition of the death penalty that was passed by the House in 2006 with a substantial majority, is still binding on the Bar. The work done in this area by the Bar, and specifically the HRC, is reflected at page 173 of the Annual Report in the section entitled “Death Penalty”. The Star article related to the press conference held by the Minister of Law, Dato’ Seri Mohamed Nazri Abdul Aziz, on the occasion of the debate, among university students, organised by HRC — together with the Delegation of the European Union to Malaysia, and SUHAKAM — on 1 Mar 2012, on the efficacy and need for the death penalty. Alarmingly, quite a number of the students were in favour of the death penalty. Andrew Khoo Chin Hock said that the three bodies intended to engage more specifically with the students, by holding a series of debates and mock trials to give them a wider perspective on the issue. Going to the streets, as mandated by the motion, may not be the best option because the Bar is not ready for this. What is needed is an increase in the level of education and campaigning on this issue.

Andrew Khoo Chin Hock said that he was not in favour of the motion, for two reasons. Firstly, the motion talks about repealing all legislation where the death penalty is provided for. Taken literally, the motion seeks a repeal of the Penal Code in its entirety. This is not really what the House wants. Secondly, the motion requires the House to do certain things, but the Bar must be given the flexibility to decide how to go about the campaign, which will take time because the idea of the death penalty is still quite prevalent in the minds of many people, including the younger generation. Hence, this may not be the appropriate time to adopt the motion.

Andrew Khoo Chin Hock said that if the motion is not carried, all that will be reported by the press is the headline that the Malaysian Bar voted down the motion. This would make it appear that the vote result is contrary to what the Bar believes in, as people do not read details. He appealed to Naran Singh to take

into account the following: what BC and HRC are doing; the press statement entitled “Abolish the death penalty now”, dated 13 Oct 2011, reproduced at page 311 of the Annual Report; and his assurance that HRC is very involved in campaigns and programmes to educate the Malaysian public about the futility of the death penalty. He urged Naran Singh to withdraw the motion rather than force it to a vote and have it misreported in the press the following day.

Naran Singh said that he put forward the motion of his own volition after reading various newspaper articles on the death penalty. He cited the case of a Sabahan boy who was due to be hanged in Singapore, where the Malaysian Government had appealed for clemency. He asked if the Malaysian Government is making a mockery of itself because it executes its own citizens but had made an appeal to Singapore not to hang the Sabahan boy. Naran Singh proposed that his motion be amended by deleting the phrase “going to the streets for demonstration, sending a memorandum to His Majesty The King of Malaysia”, as he still wanted the Bar to proceed with the motion.

The Chairman said that it was not correct to ask the Government to repeal all acts that include the death sentence because technically, it would mean that the Bar is asking for the repeal of the entire Penal Code.

Naran Singh said that the motion affects all Acts that have the provision for a mandatory death sentence for acts such as murder and kidnapping, and calls for the penalty to be abolished and substituted with a life sentence.

Brendan Navin Siva said that almost everyone is in favour of abolishing the death penalty, and suggested that Naran Singh amend the motion to something that Members could agree upon. Naran Singh agreed.

Discussion on the motion was adjourned to permit Naran Singh to formulate amendments.



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5.5 Motion no 5.5

“Motion on maintaining a just employment relationship, worker and trade union rights in Malaysia”, proposed by Charles Hector and seconded by Francis Pereira, dated 1 Mar 2012Whereas:(1)

(2)

(3)

(4)

(5)

(6)

There has been a withering away of the rights of workers and/or their unions in Malaysia over the past years, and the most recent of this is the employment relationship, where Malaysia is in the process of amending (or has amended) the Employment Act 1955 vide the Employment (Amendment) Bill 2011, the result of which would be the legalization of the ‘contractor for labour’, a third party, in an employment relationship which justly should be a two-party direct relationship between owner/operators of workplaces and their workers, who reasonably must be their direct employees.

What the Malaysian government has done, earlier through policy and practice and now being legalized through the amendment of the Employment Act 1955, which was passed at the Dewan Rakyat on 6/10/2011 and the Senate on 22/12/2011, goes contrary also to international standards and principles concerning Decent Work and worker rights. Avoiding employment relationship was being done by various means, agreements and contracts, which have been criticized even by the International Labour Organisation (ILO). Sadly, Malaysia goes even further by legalizing evasion of employment relationships.

Employment relationship in Malaysia, as also evident in our Employment Act, prior to this new amendment, was a 2-party relationship between employer and worker (employee) between whom there will be a contract of service, whereby ‘the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and (a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) the statutory body or local government authority, shall be deemed to be the employer’. Sadly, the Minister had the power to create exceptions to this general principle.

The current amendments to the Employment Act 1955 now statutorily recognizes a new third party in the employment relationship, being the ‘contractor for labour’, who unlike Private Employment Agencies, continue to remain the employer of workers that they supply to the principal or owner of the workplace, and as such the said principal or owner of the workplace effectively can avoid becoming employer of the workers working for them, and hence all employer obligations.

This practice of using workers of third parties, without the entry of an employment relationship and/or contract of service, even though there was no provision in law that specifically allowed this, started on or about 2005 with essentially migrant workers through what was known as ‘outsourcing agents’, but as of 2010, it was no more just migrant workers but also local workers including those from Sabah and Sarawak.

This new reality causes discrimination amongst workers, with regard to wages and other benefits, including also the right to join existing unions and/or to benefit from Collective Agreements, being agreements between worker-employees and their employers — the principal or owners of the workplace.


(7)

(8)

(9)

(10)

(11)

(12)

In some workplaces, the workers who still are employees of the principal or owners of the workplace is about 50% or less, the rest workers there being workers supplied to work by third parties, at a workplace. This results in an effective weakening of trade unions and their bargaining powers when it comes to collective agreements, including their struggle for better wages and work conditions. The law does not provide any restrictions as to the number of non-employees at a workplace, and as such this may lead to a situation where even all workers in workplaces may one day be no more employees of the owner or principal of the workplace.

Given the reality, that the workplace and all workers therein is still under the effective control and supervision of the principal or owners of the workplace, matters related to work and work condition, so many workers at the workplace, now treated as not employees of the principal or owner of the workplace, is deprived the right that any worker must have to be able to fight for better working conditions and work-related rights. The third party suppliers really have no effective control or ability when it comes to improving working conditions and matters at the workplace.

The reality today is also that these principals or owners of workplaces are getting workers from not one, but many different suppliers of workers (‘contractors for labour’), which again would result in further discrimination.

The reality also is that a suppliers of workers (‘Contractors for Labour’) is supplying workers to many different workplaces, in many different sectors, and as such even if the workers (now considered) employees of these suppliers were to try to form a union, it is near impossible given this reality. They also cannot join existing regional or national trade unions in Malaysia, given the fact that in Malaysia, unions are registered based on sectors, and it will be difficult for these worker/employees of the third party to form or join existing unions, given also that the flexibility of the situation that can result in overnight changing of which sectoral unions that they can join. Effectively, these workers if they are employees of these suppliers have lost their basic freedom of association and the right to form and/or join trade unions. Prior to this any new employee of the workplace can easily form/join trade unions, irrespective of whether they are local or migrant workers.

The Private Employment Agency, as provided for in the Private Employment Agencies Act 1971, does the service of finding workers for workplaces, and once the workers are supplied, these workers automatically are employees of the principal or owners of the said workplace, and the private employment agency is paid a statutorily fixed rate for their services. This is certainly a better practice, not detrimental to a just employment relationship and worker rights. All suppliers of workers must be private employment agencies, confined to the providing of service of supplying workers, and not be made into employers themselves of the workers after they have supplied them to the principal or owners of workplaces.

It must be pointed out that the Employment Act 1955 amendments were proceeded with and passed in both houses of Parliament, despite the fact that there was strong opposition and protest from workers, trade unions including the Malaysian Trade Union Congress and the International Trade Union Confederation (ITUC), and civil society groups.

We hereby resolve:(1) That the Malaysian government immediately repeal the amendments to the Employment Act 1955, introduced

vide Employment (Amendment) Bill 2011, and pending repeal not put into effect the said amendments.



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(2)

(3)

(4)

(5)

That the Malaysian government do the needful to maintain existing 2-party employment relationships between principals or owners of workplaces as employers, and workers that work in the said workplaces as employees of the said principals and owners.

That the Malaysian government promotes and protect worker and trade union rights in Malaysia, and not permit any form or discrimination at the workplace or related to work amongst workers doing the same work and/or working at workplaces of principals or owners.

The Malaysian Bar takes the stand that labour suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace.

That the Malaysian Bar continues to struggle for the promotion and protection of worker and trade union rights in Malaysia, including for just employment relationship, basic living wages and freedom of association consistent with the Principles of Decent Work and other universally recognized standards and principles.

The Chairman invited Charles Hector Fernandez to move his motion.

Charles Hector Fernandez said that based on the feedback he had received regarding his motion, he proposed the following amendments to the resolution:

(1) That the Malaysian government immediately repeal the amendments to the Employment Act 1955, introduced vide Employment (Amendment) Bill 2011, with regard to the employment relationship and the contractor for labour, and pending repeal not put into effect the said amendments.

Charles Hector Fernandez said that the additional phrase would make the resolution clearer in view of numerous objections to several amendments to the Employment Act, and the fact that the motion focuses only on the employer-employee relationship and the contractor for labour.

The Vice-President proposed that the word “with” replace “and” appearing after “employment relationship”.

Charles Hector Fernandez disagreed, on the ground that “employment relationship” and “contractor for

labour” are two different things. He said that the resolution stresses the importance of retaining the principle of direct employment relationship, and that the contractor for labour is merely one aspect of it.

The Vice-President noted that the resolution sought to repeal all provisions regarding the employment relationship with the contractor for labour, and to create the same with the owner of the workplace. He sought clarification on whether this was the aim of the motion.

Charles Hector Fernandez explained that he did not want the contractor for labour to exist.

The Vice-President asked Charles Hector Fernandez to explain the evil he wished to address. He said that being a contractor for labour is a free enterprise under the present law, except that the owner of the workplace is deemed in law to be the employer of the employee.

Charles Hector Fernandez said that the term “contractor for labour”, as proposed by the Malaysian Government, would create something else. It would be acceptable if an employment agent is created. This was the reason for his choice of the word “and”.


Low Beng Choo of the KL Bar proposed that the issue be taken up by the Industrial Law Committee, because the motion went in-depth on certain provisions.

The Chairman said that this issue had been discussed by BC two meetings ago and on the previous day. Anand Ponnudurai, Chairperson of the Industrial Law Committee, had participated in the deliberation and had given his views, and BC had agreed to adopt the motion with amendments.

Andrew Khoo Chin Hock proposed that the resolution be amended by repositioning the additional phrase as follows:

That the Malaysian government immediately repeal the amendments to the Employment Act 1955 with regard to the employment relationship and the contractor for labour, introduced vide Employment (Amendment) Bill 2011, and pending repeal not put into effect the said amendments.

The motion, as amended, was put to a vote, and was unanimously carried.

5.6 Motion no 5.4 (continued)

Naran Singh proposed an amendment to his motion, as follows:

That the Malaysian Bar take immediate action to call upon the Government of Malaysia to abolish the death penalty with immediate effect.

Sulaiman Abdullah said that he was not happy with the recital, but since a motion must have a recital, and taking into account what Naran Singh had in mind, he proposed that the recital from paragraphs (1) to (6) be removed, and the resolution be further amended to read:

That the Malaysian Bar, taking into cognisance its earlier resolution at a previous Malaysian

Bar AGM that the death penalty should be abolished, and bearing in mind the current public debate on the merits of the death penalty, calls upon the Government of Malaysia to take immediate steps to abolish the death penalty in any legislation providing for it, and insofar as those awaiting execution, that the death penalty be remitted by executive action.

Naran Singh agreed to Sulaiman Abdullah’s amendments. He urged BC to ensure that action be taken, otherwise he would return the following year with a motion to propose a street demonstration.

Andrew Khoo Chin Hock gave his assurance to Naran Singh that if he is re-appointed as Chairperson of HRC for the next term, this issue will be an ongoing project.


Item 6 of the agenda6.1 General

Naran Singh, in noting that several issues had been raised that morning, informed the House that the Perak Bar Committee has never convened a meeting for members to discuss issues of concern. As far as he knows, the Perak Bar Committee holds its regular meetings without seeking members’ views or feedback. The Perak Bar Chairman and Representative to BC also do not report to members about matters discussed and decided upon at Council meetings, so members are left in the dark. He proposed that all State Bar Committees should call a meeting of members in their states at least once a fortnight in order to convey BC’s decisions to them, and seek their views. This would be a more effective way of keeping members updated.

Mad Diah Endut, Perak Bar Representative to BC for the new term, and former Chairman of the Perak Bar Committee during the previous two terms, conveyed the apologies of Vivekanandan Periasamy, the current Chairman, for his absence from the AGM, as he was away in India. He explained that the Perak Bar Committee



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had invited members in the state to relate their problems, but not much feedback had been received over the previous two terms. Hence, it was not fair for Naran Singh to comment that the Perak Bar did not do enough. Mad Diah Endut said that on occasions when he had met Naran Singh and when issues had been raised, such issues had been brought to the attention of the Perak Bar Committee. He assured Naran Singh that he would convey the latter’s proposal, regarding fortnightly meetings, to the Perak Bar Committee for its consideration.

Naran Singh acknowledged that Mad Diah Endut had called and met him. He reiterated his proposal that State Bar Committees should convene fortnightly meetings with members who wish to be consulted on decisions, because all this while State Bar Committees had been making decisions on their own.

The Chairman said that since the general body has vested in State Bar Committees and BC the power to manage the affairs of the Bar, State Bar Committees could obtain feedback from members either by cascading up towards decision-making, or bringing information down to members after decision-making.

6.2 Death penalty

Charles Hector Fernandez said that the Minister of Law had recently asked people who oppose the death

penalty to speak up. He asked Members of the Bar to take the initiative to pressure various groups to speak up or send letters to the Minister.

6.3 Vote of thanks

On behalf of the House, Sulaiman Abdullah recorded a vote of thanks to the BC Secretariat for the excellent work they rendered in support of the Malaysian Bar over the past year. He further recorded a vote of thanks to the Chairman for the able way in which he had conducted the AGM.

The Chairman reciprocated by thanking all Members for having attended the meeting, and brought the meeting to a close.

The Chairman requested members of the incoming BC to stay on for the first meeting of the 2012/13 term.

There being no other matters, the meeting was adjourned at 3:40 pm.

For the record, a total of 878 Members attended the meeting.

Tony Woon Yeow ThongSecretaryMalaysian Bar


Update Sheet

Matters arising from the 66th Annual General Meeting (“AGM”) held on 10 Mar 2012

Item Subject Update(1) Court-related issues

(a) General

(b) Counsel are not being given enough time to submit in the Court of Appeal, and judges deny counsel the right to make oral submissions

(c) Judges’ secretaries should be allowed to transcribe notes of evidence, as was the practice in the past

(d) Long queues at e-filing service bureaus

(a) Bar Council (“BC”) representatives met the Chief Justice (“CJ”) on 15 Feb 2013, and discussed the following matters:

(i) Car park at the Palace of Justice, Putrajaya;(ii) Subordinate Courts (Amendment) Act 2010 and status of

implementation of BC’s recommendations;(iii) Feedback from BC regarding the performance of judges;(iv) Complaints against judges, and members of the Judicial and

Legal Service;(v) Complaints by judges and members of the Judicial and Legal

Service against Members of the Bar;(vi) Assessment of courts in the various states;(vii) Need for improvement in number, and quality, of written

judgments;(viii) Use of mediators from Malaysian Mediation Centre;(ix) Use of presentation slides in court submissions;(x) Duty of court to provide litigants with transcripts of the

recordings from the Court Recording and Transcription system;

(xi) E-filing;(xii) Judicial temperament; (xiii) Summaries prepared by junior Registrars in the Court Of

Appeal; and(xiv) Steps taken by BC to improve quality of the Bar.

(b) BC has brought these matters to the attention of the CJ, President of the Court of Appeal, and the Chief Judge of Malaya, on a number of occasions.

(c) BC has raised this matter with the CJ and the Chief Judge of Malaya.

(d) BC is looking into this issue.



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Item Subject Update(2) Conditional Fee Rules should

apply to all areas of practice, except for criminal law and family law

BC is considering the Conditional Fee Rules and the explanatory notes received from Su Tiang Joo.

(3) Forums are needed to educate Members regarding amendments to criminal laws, particularly in regard to plea bargaining

Criminal Law Committee organised talks in Kuala Lumpur (10 Aug 2012), Selangor (28 Aug 2012), Penang (28 Aug 2012), Johore (1 Dec 2012) and Terengganu (31 Jan 2013). Similar talks will be organised in Malacca and Negeri Sembilan.

(4) Forged acknowledgment of payment of stamp duty

BC issued four circulars to inform and update Members regarding this matter:

(i) Circular No 085/2012 dated 24 Apr 2012;(ii) Circular No 151/2012, dated 11 July 2012; (iii) Circular No 164/2012, dated 30 July 2012; and(iv) Circular No 179/2012, dated 14 Aug 2012.

BC will follow up with the Attorney General regarding the status of investigations against runners and syndicate members.

(5) BC should follow up on the proposed establishment of an Environmental Court

Members were informed in Circular No 189/2012 dated 3 Sept 2012 regarding the setting up of the Environmental Court.

The Environment and Climate Change Committee (“ECC”) is of the view that the structure and functions of the Environmental Court should be expanded. ECC is collaborating with the Kuala Lumpur Bar Committee’s Environmental Law Committee to prepare a memorandum proposing the establishment of a joint task force, comprising representatives from the Bar and the Bench, to look into this matter.

(6) Whether non-Muslim lawyers are prohibited from advising clients on aspects of Syariah Law in areas of practice such as conveyancing

Syariah Law Committee considered this issue on 15 June 2012, and is of the view that non-Muslim lawyers can advise clients on all matters except those that fall within the jurisdiction of the Syariah courts.

(7) Follow-up actions taken in respect of resolutions of the Bar’s AGMs should be included in the Update Sheet of the 2012/13 Annual Report

The BC Secretariat has prepared the compilation, but it is too voluminous to be included in the 2012/13 Annual Report.

Update Sheet


Item Subject Update(8) Update to Members regarding

progress of amendments to the Legal Profession Act 1976

The Legal Profession (Amendment) Act 2012 was gazetted on 20 Sept 2012 but is not yet in force. It amends provisions relating to, inter alia, disciplinary matters. These amendments had been held back in the past so that they could be tabled at the same time as the amendments pertaining to liberalisation of the legal profession. At the Chief Judge of Malaya’s request, BC is currently reviewing a clause in it that provides for suspension of an order or decision of the Advocates and Solicitors Disciplinary Board for at least 30 days, to enable an aggrieved party to seek judicial review.

(9) “Motion regarding mandatory Continuing Professional Development Scheme”, proposed by Dipendra Harshad Rai (Chairperson, Bar Council Professional Standards and Development Committee), on behalf of Bar Council, dated 27 Feb 2012

The motion, as amended, was put to a vote and was carried: 321 votes in favour, 137 against, and nine abstentions.

The CPD Department was established in October 2012 to implement and manage the Scheme. Many more courses are now available — some of which are free of charge — to provide Members with valuable yet affordable opportunities. In 2012, 110 courses were conducted, with a total number of 7,146 registered attendees.

The Department is setting up an independent website dedicated to the Scheme, and collaborating with local and international training providers.

For more details, please refer to the report of the Professional Standards and Development Committee.

(10) Motion regarding the Advocates and Solicitors Disciplinary Board, jointly proposed by MS Murthi, Kumar Thangaraju, Sundaresan Krishnan and Thanalakshmi G, dated 1 Mar 2012


(11) Motion regarding the Advocates and Solicitors Disciplinary Board, proposed by Naran Singh and jointly seconded by Pritam Singh Doal, GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012


Update Sheet



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(12) Motion regarding the death penalty, proposed by Naran Singh and jointly seconded by Pritam Singh Doal, GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012


The resolution was brought to the attention of the Prime Minister, Attorney General’s Chambers, and Ministry of Home Affairs, by letter dated 2 Apr 2012.The Human Rights Committee organised various activities in 2012 to raise awareness regarding the death penalty:

(i) Debate on the abolition of the death penalty in Malaysia (1 Mar 2012);

(ii) Talk on the death penalty in Malaysia (5 Apr 2012);(iii) Screening of documentary entitled “Death in Dilemma: The Final

Curtain” and discussion on the death penalty (28 Aug 2012); and(iv) Roadshow and pleadings competition on the death penalty

(September to November 2012, culminating on 10 Dec 2012).

(13) “Motion on maintaining a just employment relationship, worker and trade union rights in Malaysia”, proposed by Charles Hector and seconded by Francis Pereira, dated 1 Mar 2012


The resolution was brought to the attention of the Prime Minister, Attorney General’s Chambers, Ministry of Human Resources, and Ministry of Home Affairs, by letter dated 2 Apr 2012.

Date: 28 Feb 2013

Update Sheet

Documents

minutes - Malaysian Bar