The Malaysian Bar - SPECIAL REPORT IV from Prague: National reconciliation and Bar office management

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SPECIAL REPORT IV from Prague: National reconciliation and Bar office management

Contributed by Edmund Bon Tai Soon

Wednesday, 28 September 2005 12:00am

Haji Sulaiman (left) with 2 other delegates.

Click here for SPECIAL REPORT I, here for REPORT II, here for REPORT III, here for REPORT V, here for REPORT VI and here for the FINAL REPORT.

PRAGUE, Tues: I started the morning session with National reconciliation: history and the law. It was a highly informative discussion which had Justice Richard Goldstone as chair with four speakers – Elazar Barkan, Zdenek Kuhn, Dr Adel Manna and Dr Oliver Rathkolb.

It was not a topic which focused on the law per se; rather it examined the processes required to rebuild war-torn countries and communities which are in conflict internally in the same country. The lessons learnt from this are important and leads to new ways in attempts to solve ethnic, religious and political conflicts towards a lasting peace.

The root of the discussion centered on the work of Institute for Historical Justice and Reconciliation. It has initiated projects for, among others, the conflicts in Uganda, the Middle East, Poland and Turkey-Armenia. It was agreed that reconciliation is not about seeking revenge or about achieving peace; but rather, it is to build blocks on which peace can be founded upon. Historians, scholars and academicians on both sides of the conflict as well as independent experts are brought together by the Institute, firstly, to conduct research and to record history as accurately as possible in relation to the conflict at hand. They would meet periodically to negotiate “consensus histories” which can be endorsed by parties on both sides of the conflict. Negotiating here means examining and evaluating date from all sides, and not merely trading historical veracity for political expediency. They may agree to disagree on certain aspects, and to this end, they would create “parallel histories” whose content can be publicly endorsed by both sides. This part of the process is crucial.

Secondly, the Institute engages key individuals on both sides of the conflict, as well as relevant third parties, to sit down at the same table behind closed-doors to discuss their concerns. It then helps place the discussion in a historical context formulated through the first building block as described above, and further, moves to discussion of these issues into the public arena. It seeks to be a neutral arbiter in the process and provides guidance and oversight of the discussions and meetings.

Its projects are generally framed around a multi-year, two-phase process, which is adapted to the specific context of each conflict.

It was again made clear that the Institute is not a “peace initiative” but a “peace-building initiative”. That is the real value of the Institute’s work. Barkan reiterated that “reconciliation is a process, and not a place”. We may never go there but we have to work towards it.

Goldstone made the point that prosecutions of violators of human rights in these conflicts are merely one part of the initiative where facts and evidence which emerge from the trials would be recorded as history:

“The judicial process is part of reconciliation and not the stand alone. There can be no national reconciliation only through the judicial process.”

A lawyer’s role in the reconciliation process is therefore limited – as prosecutors or defence counsel for the accused. But a lawyer must do his job efficiently and well. The facts and evidence which come out of the trial process must be “patently fair and just” and the accused must have a fair trial. The rule of law demands this.

Barkan emphasised that history must be taught as an intellectual and academic narrative which is based on empirical data established for both sides. There must be a “feasible connection” to enhance and widen the accuracy of history. History must be described by taking into account the other’s perspective – “the victim’s perspective and not only the victors”. Perspective is important because there is a need to learn from both sides as we are “dealing with real conflict, real animosity” and the discussion should not be subject to “pure propaganda”. Empathy is important.

Bar Office Management session.

Bar office management

I decided to attend this session although it sounded dry because it would be good to learn and compare the way other jurisdictions run their bar associations. At the end of the session, I was surprised, and wondered if our Bar could be run more efficiently to the benefit of our members.

The speakers were representatives from four different Bars, and the main areas of the function of a bar association were sub-divided as follows:

1. Admission

2. Supervision

3. Complaints handling

4. Supporting the rule of law

The principles enunciated were two-fold:

1. Reliable self-policing and autonomy

2. Pillar of the rule of law

The session was chaired by Michael Kutschera and he did a good job in keeping us awake through the use of slides and interactive, ad-hoc communication with the speakers and us. The speakers were:

1. Michaela Strizova, Executive Director of the Czech Bar Association and practicing lawyer

2. Evelyn Glavarry, Executive Director of the Law Society of England and Wales

3. Robert Stein, Executive Director of the American Bar Association

4. Manfred Stimmler, Executive Director of the Vienna Bar Association

Key features of the respective bar associations are as follows:

	Czech Bar Association	Law Society of England and Wales	American Bar Association	Vienna Bar Association
Basis (of establishment)	Statutory	Royal Charter	Private	Statutory
*Membership* (is it mandatory to be a member to practice as a lawyer?)	Mandatory	Mandatory	Voluntary (eg: law students may be members)	Mandatory
Admission (does it license lawyers to practice?)	Yes	Yes	No (ie, the Supreme Court issues the license)	Yes

	Czech Bar Association	Law Society of England and Wales	American Bar Association	Vienna Bar Association
*Legal aid service to society*	Yes	Supports	Assistance	Yes
*Involvement in legislation*	Yes	Yes	Yes	Yes
Provision of health, pension or insurance schemes	No	No	Assistance	Yes

(fr left) Stimmler, Glavarry, Kutschera, Strizova and Stein.

Explanatory notes

A. Legal aid service to society

I Czech Republic

1. Requests for legal aid will be made to the Association, which will then appoint lawyers for them.

2. The Bar remunerates the lawyer for travel costs only.

3. There is no governmental support or funding for legal aid.

II England and Wales

1. The Society has no role in the provision of legal aid but it has the statutory right to be consulted by the government on the formulation of legal aid policies and legislation.

2. By the Administration of Legal Aid Act, the Legal Services Commission is a statutory body established to contract with private practitioners on legal aid cases. It is funded by the government.

3. By the Human Rights Act, the government is under an obligation to provide legal aid to all accused in criminal cases.

4. The pressure on civil legal aid has increased and the eligibility criteria for civil legal aid has declined to a “scary proportion”.

III United States of America

1. In criminal cases, the court appoints a defence counsel as there is a constitutional right to counsel.

2. In civil cases, there is no similar constitutional guarantee but every State Bar has a legal aid programme which hires full-time lawyers assisted and funded partially by the State Bar and partially by the Legal Services Commission/ government.

3. Congress pays the Legal Services Commission USD 30 million annually.

4. The pro bono programme encourages lawyers to contribute time to do legal aid cases, by requesting for 5% of a lawyer’s billable hours.

IV Vienna

1. It is mandatory for all lawyers to do legal aid. Once the client is eligible, the lawyer will be passed the case.

2. At the end of the year, all the bills of the lawyers will be sent by the Bar to the Ministry of Justice. The Minister of Justice will get a lump sum from the government and it will be paid into the pension schemes which will bring up the pension to 50-60%. The remaining 50%-40% are contributed by the lawyer.

3. There are two mandatory pension schemes operated by the Bar:

3.1 Contribution by the government to legal aid vide the scheme described above and contribution by the lawyer.

3.2 Insurance based-like regular pension plan paid by the lawyer.

4. There is no express “buy-out clause” but the lawyer assigned the case may “sub-contract” the case to another lawyer, and pay him directly.

V Japan

1. It is mandatory for all lawyers to do legal aid.

2. If lawyers do not do sufficient legal aid work, they are required to pay a sum. If they do not do any legal aid work for a year, they are charged a levy of 120,000 yen and the sum will go to the legal aid fund.

VI Portugal

1. In criminal cases, all citizens have the right to representation.

2. In civil cases, the eligibility test is carried out by social security which will certify whether the claimant is eligible for legal aid.

3. If so, the Bar will appoint a lawyer. Fees paid are very low and by way of contribution to the pension scheme by the government.

VII South Africa

The government has established a Legal Aid Commission which will appoint its own in-house lawyers (ie, State lawyers).

VIII Hungary

1. The government has started a new programme where legal aid centers are opened in the main cities, and lawyers are employed by the centers. It is completely taken out of the hands of the Bar.

2. The centers advertises for lawyers to be on the panel of lawyers, and lawyers may apply accordingly.

B. Involvement in legislation

I Czech Republic

All draft bills for the enactment of legislation are given to the Association for comments.

An important building.

II England and Wales

1. The Society has a significant involvement in the formulation or amendment of legislation from the advent of the same. The proposals are tracked from the very beginning and work is done by a large team of 50-55 staff. This constitutes a major part of the Society’s activities. Further, the team is proactive in that it would propose or recommend solutions to problems or loopholes in the current legislation. It works closely with the government in this area.

2. Glavarry said that the Society has “an elaborate system of tapping into the expertise of a committee of experts” to give input to the government on various legislation through oral evidence at hearings and presentation of legal policy papers.

3. The Society has a strong influence on Parliament and by sticking to the core values of legal principles, the credibility of the Society in the eyes of the government is maintained at a high level.

III United States of America

1. There is an active team of full-time lobbyists from the Association with the task of lobbying members of Congress and the White House. The Association has a 500-strong House of Delegates which meets twice a year to decide on policy issues. Lobbying must be done in line with the policies set by the House.

2. An example was given in respect of the policy on abortion. In 1991, the House voted to support abortion but in the next year, it backtracked on the decision and voted against supporting abortion. After a large outcry, in 1993, the House reverted to its original decision. This is important because the Association would only be allowed to file an amicus brief or support a particular legislation which is consistent with the decisions of the House.

3. Stein however said that the Association is careful not to be political or seen to be supporting or endorsing a certain candidate or law-maker or a party. It goes only on the merits of the issues, and the Association has a success rate of about 85% on issues lobbied with the law-makers. To that end, it has a great influence on law-making in the US.

Comment

Notice the different approaches taken by the Law Society of England and Wales and the American Bar Association. The former relies on a committee made up of academics, lawyers and experts to formulate their positions on issues, in other words, like a “think-tank”. The latter relies on the policy position or direction taken by the House of Delegates, and management then takes it upon itself to implement or fit its administration in accordance with the policy or direction.

The American Bar Association model is also useful in that it has a dedicated team of lobbyists which has personal contact with law-makers and pushes its agenda or issues.

C. Provision of health, pension or insurance schemes

I United States of America

1. The Association does not provide such cover. However, a separate corporation is set up which is wholly controlled by the Association called the “American Bar Endowment” to sell commercial products such as life insurance to members, and which encourages members to contribute the dividends received to the Association. The sum managed by the said corporation annually is in the range of USD 100 million. The benefits to the members are better than the products offered on the open market.

2. With regard to retirement plans, another corporation is set up called the “American Bar Retirement Association” which regulates this product along the same lines as above. The sum managed by the said association annually is in the range of USD 5 million.

3. The assistance offered to serve its members are twofold:

3.1 By being a member of the Association, the members benefit from the aforesaid schemes which are of higher value than if purchased on the open market. The schemes cover the families of members as well.

3.2 The structure of the organisation encourages members to contribute back to the Bar to assist the same, which in turns assists other members.

II Vienna

See paragraph IV.3. above.

	Czech Bar Association	Law Society of England and Wales	American Bar Association	Vienna Bar Association
*Promotion of members’ interests*	Yes	Yes	Yes	Yes

The stand-out presentation on the promotion of members’ interests came from Stein. He described different scenarios where the Association had aggressively supported lawyers in the US. It has, among others, appeared before regulatory authorities for oral hearings, challenged the government in legal suit filed in courts, evaluated judicial nominees in public, launched a campaign to correct mis-depiction of lawyers in advertisements and went on an advertising campaign to assure the public that the security they enjoy would only be continue and be protected by the rule of law.

Clock repair.

D. Administration of the Bar

I Czech Republic

The Executive Director of the Association is an active practicing lawyer who prepares proposals for the consideration of the Board of Directors, and thereafter administers the policy made by the Board.

II England and Wales

1. There is a clear demarcation between the responsibilities of the elected members of the Society and management. By statute, a Council of the Society is elected and which sits 5-6 times a year. Underpinning the Council is a main Board which is constituted by some elected members (such as the President) and some executive and non-executive members who are appointed.

2. The execution of policy decisions is done by the management and although there exists a tension at times as to the blurring of responsibilities, Glavarry says that this is a “healthy tension”.

3. There are different ways where the initiative to take a certain route emanate:

3.1 The main initiatives are largely from the profession itself.

3.2 From proposals and feedback requested by the government.

3.3 The staff of the Society who identify issues as a result of “intelligence” from the profession.

4. The management staff are expected to and do prepare legal policy papers to make decision-making easier for the Board.

5. Glavarry emphasised the need to recruit specialised staff with the necessary expertise and skills to advise and ultimately assist in the decision-making process of the Board. It is important to have a “real pool of professional staff” which will inspire the confidence of the profession.

6. There should be a good mix of lawyers and non-lawyers which must reflect a “full mix of experience”. A large number of the Society’s staff are “refugees from private practice” who wish to enter the “rich field of legal policy-making” where they can be “dynamic and shape things in terms of the legal profession, management and legislation.” They may not be able to frequently do these things as a lawyer.

III United States of America

1. The House of Delegates makes policy decisions which are transmitted to the Board of Governors of 37 members which in turn will instruct Stein as the Executive Director of management to execute any directions pertaining to the same.

2. Stein has a large professional staff which will deliberate on matters and then make recommendations to the Board which will then approve or reject or suggest alternatives.

3. The Association recruits top-level executives for management positions. For example, the Director of Communications was the former Chief of Communications for a large multi-national company and the Director of Technology was the former Chief Operating Officer for the Hyatt Hotel.

4. The staff number 900 in two cities – 700 in Washington and 200 in Chicago. Their backgrounds are varied:

4.1 Media staff are from the television networks and newspapers industry.

4.2 Sales and advertising staff are from the advertising industry.

5. Stein argues that the Executive Director must be a lawyer or legally-trained, and his predecessors have all been lawyers.

IV Vienna

1. The Executive Director formulates and develops policy for consideration of the members of the Board. The direction of the Bar usually depends on the personality of the President.

	Czech Bar Association	Law Society of England and Wales	American Bar Association	Vienna Bar Association
*Staff*	59 + 20 (with “higher qualifications”)	1500	900	25 (out of which 5 are lawyers)

Note

The staff : members ratio are roughly as follows:

1. Czech Bar – 1 staff : 103 members

2. Law Society – 1 staff : 80 members

3. Vienna Bar – 1 staff : 80 members

At Old Town Square.

Most of the 1500 staff the Society has are involved in a regulatory role. The Society has been given statutory powers to investigate and deal with complaints of “poor service” by lawyers ranging from the failure to return phone calls or letters to being rude. There are about 20,000 such complaints every year and a separate unit of 300 lawyers and 300 staff has been set up to deal with them. These are not considered serious complaints but of poor delivery of services.

The American Bar Association has decided to “go lean” with the advance in technology. They now have 50 staff fewer than it was 10 years ago. They are trying to decrease the number of staff and to increase productivity, even whilst membership numbers are increasing.

The Czech Bar Association has a huge education department staffed with about 2000 trainee candidates with “limited admission” to the Bar. They are equivalent to pupils in Malaysia.

A German lawyer described the German Bar Association model. It is purely voluntary to join the Association. The Association has no regulatory functions and it has 46 staff with 12 lawyers. There is a Board of 28 which meets 3 times a year. The President is elected for a 5 year period (by convention and not by law) and there is a Presidential meeting 3 times a year.

The President of the Portugese association is elected for a 3 year period, the Czech and Vienna associations for a 3 year period, the Law Society and the American Bar Association for a one year period.

A Canadian lawyer highlighted a safeguard for the over-exuberance of new incoming Presidents where in Canada, there is a strategic planning process for 3-5 years and the President must be within that process and who is further controlled by that plan when he comes into power. The President usually starts as the Deputy Vice-President, then Vice-President and thereafter President and this would take about 4 years.

Glavarry said it was the same for the Law Society. There is a strategic and corporate plan of the Society and the President, Vice-President and the Deputy Vice-President must work within that plan.

E. Discipline of members

This raises two core issues:

1. Whether a bar association should be a regulatory authority and how will that be consistent with being an advocate for its members.

2. If it is should be a disciplining authority, the issues in respect of administration are as follows:

2.1 Complaints handling/early warning system

2.2 Definition of policy

I Czech Republic

The Association deals with complaints through its Supervisory Board which will decide on the matter.

II England and Wales

Glavarry started off by saying that the Society is very strict on the demarcation between being a regulator and it being in a representative role but saw no conflict in being both at the same time. As a regulator, there is absolutely no possibility of the Society handling such cases. However, as an advocate of the members, the promotion of the highest standards of practice will advance the best interests of other members and the profession as a whole.

III United States of America

Stein reiterated that the Association should not be involved in disciplining lawyers. Discipline is within the purview of the courts which appoints a committee to discipline the lawyers. Each State Bar has a committee made up of 1/3 non-lawyers appointed by the courts for this purpose.

The Association’s role is limited to being a “central clearing house” where a consumer would go to it as a single point of entry and the Association would advise or direct the matter to the appropriate authorities, such as:

1. Service complaints will be referred to the Intake Complaints Authority.

2. Clients’ complaints of professional misconduct will be advised to file malpractice suits.

3. Fee complaints will be referred to the Fee Dispute Committee.

4. Poor practice complaints will be included in the list of matters which require the Association to run training courses for lawyers on the same.

Save for the Fee Dispute Committee, the Association has no jurisdiction; the courts have it. The Association is left to deal with ancillary matters such as the increasing problem of substance abuse among lawyers. Thus, in every State, there is now a Substance Abuse Committee established to deal with the problem. If it involves issues of managing a practice, there is a Law Practice Assistance Committee which has been set up.

Hence, four main points:

1. Regulation and discipline should be outside the purview of the Bar and left to the courts.

2. The public should be involved.

3. There should be a central point of entry for consumers to make it user-friendly.

4. Ancillary matters should be dealt with by the bar association.

IV Vienna

The Association handles simple complaints through the Board. Serious complaints are referred to the Disciplinary Commission and any appeal against a decision is made to the courts.

More information

	Czech Bar Association	Law Society of England and Wales	American Bar Association	Vienna Bar Association
Members	8,156 + 2,000 (trainee candidates)	120,000	407,244	2,078
Cost per member	CSK 8,000 + contribution to pension fund	GBP 1,006	USD 20-350 (scaled)	760 euro (membership dues) + 8050 euro (pension contribution)
Annual budget	CSK 1,636,000	GBP 9.5 million	USD 175 million	3.5 million euro

Comment

It was enlightening learning from the various jurisdictions how their Bars function. Some of the problems faced by the Malaysian Bar Council stem from an inefficient use of resources. The Pangkor Young Lawyers Convention Statement 2005 should be referred to in this respect as it sets out certain measures which have been proposed to be taken to alleviate and improve our system. This should be considered as a package together with the matters enumerated in the 5-year plan.

We should make a serious effort to “make good the bad and make better the good”. What is immediately apparent looking in particular at the workings of the Law Society and the American Bar Association is that the Executive Directors together with the support staff at the management and administration level of the associations are all-important, and represent the “engine-room” of the associations. A great deal of emphasis is placed on ensuring the right people are recruited to properly carry out the tasks entrusted.

I would commend at least two matters which should be looked into immediately:

1. To progressively abolish the current system of committees where volunteer lawyers are expected to do all the work such as preparing policy papers and opinions in addition to managing their full-time practice. This is counter-productive and taxes the resources of the lawyers, whereas lawyers are not interested in working for committees of the Council because it involves more work. The committees should sit to discuss the direction and what should be done, but implementation of this should be done by trained professional staff of the Council.

2. To consider establishing a lobby group which should be made up of mixture of elected members of Council, appointed legal experts in various fields and trained professional staff of Council to act as a focal point with Parliamentarians. If this had been done years ago, we may have had the quorum requirements in the Legal Profession Act, 1976 repealed by now and not have had a situation of needing to litigate the case in court. Further, we would be able to assess new legislation from its inception in Parliament and accordingly give the Bar’s views on it. At the moment, I believe there is no formal channel where the Bar is consulted on new legislation.

I had about a month ago broached this subject informally with a Council member and I was met with the response that this idea would not work, among others, because there would be some members who would volunteer themselves to the group for the sole purpose of being able to “rub shoulders” with those in power. While I agree that the choice of those who will be in this group must be chosen with circumspect, I sincerely believe much of the Bar’s work is in relation to legislation and this idea is too important to dismiss due to the idiosyncrasies of a few members.

Eye-sore.

Roast duck at Old Town Square

At about 2130, I met up with two delegates from Malaysia (who wish to remain anonymous), and on recommendation, two of us had the Czech roast duck which was a bit sweet. It was palatable, cost CSK 355 (equivalent to about RM 60) for half a duck but a bit tough on the inside. I would prefer the Chinese roast duck with crispy skin any day, and I am missing Malaysian food already.

I tried looking for a Chinese restaurant as I need to eat some “real” rice badly but could not find any; will try again today. The rice served here is absolutely tasteless and at times, very soggy. I suspect that they do not cook the rice in our conventional rice cookers; they either grill or boil it over a stove.

Earlier, we had decided to visit a jazz bar but by about 2330 we were drained and exhausted after consuming the food. I had suggested that since there were three of us, it would be interesting to visit the notorious and dangerous part of town according to the Lonely Planet guidebook, which was in front of the central train station. They refused.

After we said our goodbyes, my two friends left in a different direction by taxi and I walked back. On the way, I had ice-cream – although it looked attractive from the outside of the shop, they gave me only three small scoops which cost me CSK 66 (equivalent to about RM 11). I ended the night walking back with the ice-cream and enjoying the sights and cool weather. To my surprise, I was invited twice on different occasions to visit a local “music bar” nearby but I politely declined.

Nice buildings of Prague...



Learning Latin...	"Please pray for me" building?

Simply majestic..is even nicer if one sees it in person.	Good coffee at monumental building.