September 23, 2016
YAB Dato’ Sri Mohd Najib bin Tun Abdul Razak
Prime Minister
Office of the Prime Minister of Malaysia
Main Block, Predana Putra Building
Federal Government Administrative Centre
62502 Putrajaya
MALAYSIA
Re: Threats to the Independence of the Legal Profession in Malaysia
Prime Minister Razak:
The American Bar Association (ABA) is an independent, non–governmental organization, representing approximately 400,000 members of the legal profession worldwide. It is committed to protecting the rule of law in the United States and abroad.
I write to express the ABA’s grave concern at a number of the proposed amendments to the Legal Profession Act 1976 (Malaysia) (LPA) which could have the effect of severely undermining the independence of Malaysian Bar Council (Malaysian Bar or Bar) and, consequently, the independence of the legal profession generally in Malaysia. As such, the proposed amendments appear to be inconsistent with international legal principles.
The independence of the legal profession – and the bodies that represent the legal profession – is essential to ensuring the rule of law, access to justice and respect for human rights. As the UN Special Rapporteur on the independence of judges and lawyers (UN Special Rapporteur) has stated, “associations of lawyers are created for two main purposes: safeguarding the professional interests of lawyers and protecting and strengthening the integrity and independence of the legal profession.”[1]
The United Nations Human Rights Council (UNHRC) recently reaffirmed that “judges, prosecutors and lawyers play a critical role in upholding human rights.”[2] Furthermore, it recognizes the “importance of bar associations, professional associations of judges and prosecutors…working in defence of the principle of the independence of judges and lawyers.”[3] Furthermore, the UN Basic Principles on the Role of Lawyers (UN Basic Principles) reiterates the State’s duty to promote and respect the independence of the legal profession:
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference… and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.[4]
The Malaysian Bar has existed for over 70 years as an independent legal association whose aim it is “to uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear or favour.”[5] It is governed by the LPA. The proposed amendments to the LPA would lead to drastic changes in the leadership of the Malaysian Bar, the election process of its leaders, and the organization of its annual meetings. Although, we have not conducted a wholesale review of the proposed amendments, we note that there are a number of problematic amendments. This letter will highlight a few of the ones that we believe are the most challenging.
First, the amendments would allow the Malaysian Government to appoint two members to sit on the Bar Council to “represent the government.” The UN Basic Principles in Principle 24 state:
Lawyers shall be entitled to form and join self–governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.[6]
International law only permits restrictions on the right to freedom of association, including the right of lawyers to form independent associations, where such restrictions serve a legitimate government purpose.[7] It is unclear what legitimate purpose the government is seeking to fulfill by mandating government appointment of bar leadership. The government is free at any time to express its views to the Malaysian Bar. There is no justification for mandating government appointment of two members of the Bar Council, the executive body of the Malaysian Bar.[8] Such appointments would inherently undermine the independence of the Bar Association. The proposed law would therefore create an unjustified infringement upon the right of association of members of the legal profession as enshrined in the Malaysian Constitution, international law and required by the UN Basic Principles.
Secondly, the amendments allow the Minister in charge of Legal Affairs in Malaysia to determine the electoral rules and regulations of the Malaysian Bar. The UN Special Rapporteur has emphasized the need for legal professional associations to be independent from the executive branch.[9] The UN Basic Principles argue for and preserves the right for legal professional associations to exercise its functions without external interference;[10] giving control over electoral rules and regulations to a member of the executive branch in Malaysia could be seen as exerting improper influence over this self–governing body.
Finally, amongst the many changes the amendments propose with relation to elections and the governing processes of the Malaysian Bar, the change in quorum for general meetings would decimate the Bar’s ability to conduct necessary business. Currently the quorum is 500 members for general meetings, the amendment proposal is to increase this to 25% or approximately 4,000 members. This increase in quorum would impose undue burdens on the Malaysian Bar and effectively prohibit it from having general meetings where resolutions and policies can be debated and passed. Such a change in quorum would render the Malaysian Bar unable to conduct its official duties.
The ABA is concerned that these proposed amendments undermine the independence of lawyers in Malaysia. We strongly urge you to reconsider introducing these amendments in Parliament. If there is a need to amend the LPA, we respectfully ask you open the discussion to the Malaysian Bar, incorporate their comments and requests, and redraft the amendments to protect and ensure the independence of the Malaysian Bar and the legal profession as a whole.
Sincerely,
Linda A. Klein
cc: YB Puan Hajah Nancy binti Haji Shukri, Minister in the Prime Minister’s Department
Mr. Joseph Y. Yun, U.S. Ambassador to Malaysia
Datuk Dr. Awang Adek, Malaysia Ambassador to the U.S.
H.E. Mr. Mazlan Muhammad, Permanent Representative of Malaysia to the United Nations
Steven Thiru, President, Malaysian Bar Association
[1] United Nations General Assembly, Report from UN Special Rapporteur on the independence of judges and lawyers “Independence of Judges and Lawyers,” U.N. Doc. A/64/181 at para 19 (July 28, 2009), available at
https://documents–dds–ny.un.org/doc/UNDOC/GEN/N09/427/91/PDF/N0942791.pdf?OpenElement [hereinafter UNGA Report].
[2] United Nations Human Rights Council, “Independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers,” U.N. Doc. A/HRC/29/L.11 (June 30, 2015), available at
[3] Id.
[4] UN Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990), principle 16, available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx[hereinafter UN Basic Principles].
[5] Legal Profession Act 1976 (Malaysia), section 42(1)(a).
[6] UN Basic Principles, supra note 4 at Principle 24 (emphasis added).
[7] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 20, U.N. Doc. A/Res/217(III) (Dec. 10, 1948); See also International Covenant on Civil and Political Rights, art. 22 Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR].
[8] Legal Profession Act 1976 (Malaysia), sections 56 – 57.
[9] UNGA Report, supra note 1 at para 22.
[10] Id.
Please click here to view the letter.