Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

In the second part of the Q & A the Web Reporter had with Mah Weng Kwai, Chairman of the GATS Committee of the Bar Council on liberalisation of legal services, Mah said the Bar Council has on numerous occasions raised the issue of Sabah and Sarawak opening their legal services to Peninsular lawyers with the Attorney General's Chambers and the Ministry of International Trade and Industry, but the main fear of our East Malaysian counterparts is an influx of lawyers from the Peninsula if they were to change this policy.

So what is the position of the Bar Council and what did or will the Bar Council do under the circumstances? These are the main questions posed to Mah in the second part of the Q & A which deals essentially with the admission of Peninsular lawyers into Sabah and Sarawak:

Q. What is the position in respect of Sabah and Sarawak - are members of the Malaysian Bar allowed to practise in Sabah and Sarawak?

A. No, we do not have an automatic right to practise in Sabah and Sarawak. An application for an ad hoc admission licence must be made to the High Court in Sabah and Sarawak. The Sabah Law Association or Advocates’ Association of Sarawak may choose to object to such an application. Even if an ad hoc admission licence is granted by the court, the lawyer applying for the ad hoc admission must then obtain a work permit from the Immigration Department there.

Q. Why is this so?

A. The Legal Profession Act 1976 has not been extended to Sabah and Sarawak. The legal profession in Sabah is governed by the Advocates Ordinance of Sabah while in Sarawak, the legal profession is governed by the Advocates Ordinance of Sarawak. The legal profession in the States of Sabah and Sarawak come under the purview of their respective regulatory bodies which are distinct from the Bar Council of Malaysia.

Q. How does this fit in with the developments under the GATS and the AFAS?

A. This situation is highly anomalous in view of the developments in the liberalisation of legal services under the GATS, as well as under the ASEAN Framework Agreement on Services (AFAS) . The recent proliferation of free trade agreements involving Malaysia may contribute to the rate and extent of liberalisation and this will only serve to accentuate the anomaly.

Q. What is the Bar Council’s position in this matter?

A. The Bar Council is of the view that Sabah and Sarawak should open their legal services sector to lawyers from Peninsula Malaysia. There should not be any need for lawyers from Peninsula Malaysia to have to apply for an ad hoc admission licence.

Q. What steps have been taken by the Bar Council?

A. The Bar Council has raised this issue with the Attorney General’s Chambers. The Bar Council has also raised this issue on numerous occasions with the Ministry of International Trade and Industry. At the recent MITI Annual Dialogue which was held on 14 April 2005, we suggested to the Minister of International Trade & Industry that the Sabah and Sarawak law associations should consider allowing lawyers from Peninsula Malaysia the right to practise in Sabah and Sarawak in certain practice areas.

At the Annual Tripartite Consultative meeting which was held on 3rd July 2004 between the Bar Council, Advocates’ Association of Sarawak and Sabah Law Association, the issue of liberalisation was discussed. We informed the Advocates’ Association of Sarawak and Sabah Law Association that the Bar Council had drafted rules on the admission of foreign lawyers where it is proposed that foreign lawyers will only be allowed to practise in permitted areas of practice in Peninsula Malaysia and foreign lawyers will be required to enter into a joint venture with a local firm. We also explained the process of liberalisation under the ASEAN Framework Agreement on Services (AFAS) which is on a GATS Plus basis. When asked whether they intend to liberalise, both the Sarawak and Sabah delegations expressed their concerns that if they did so, there will be an influx of lawyers from the Peninsula. We did suggest that they consider a gradual process of liberalisation with limited or restricted areas of practice.

As regards the Industrial Court, the Bar Council has written to the President of the Industrial Court with its views that the current prohibition in respect of appearances in court (in Sabah and Sarawak) does not extend to an Industrial Court as the Industrial Court is in fact not a court of record. A lawyer from Peninsula Malaysia seeking to appear in the Industrial Court sitting in Sabah or Sarawak should not be refused permission to do so even if there are objections by the Sabah and Sarawak law associations.

The effects of GATS and AFAS on the legal profession

Comments (0)

Subscribe to this comment's feed