The Malaysian Bar - The 64th Annual General Meeting of the Malaysian Bar (13 March 2010)

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The 64th Annual General Meeting of the Malaysian Bar (13 March 2010)

Saturday, 13 March 2010 05:54pm

Contributed by Chua Ai Lin (Writer/Editor) and Chin Oy Sim (Deputy CEO), with photographs by T Shan, Perak Bar

Members of the Bar started trickling in for the 64th Annual General Meeting (AGM) of the Malaysian Bar at the Legend Hotel in Kuala Lumpur from as early as 8:00 today. At 10:00 am, the number stood at 163, doubling to 374 within the following half hour. The required quorum of 500 was reached at approximately 10:58 am, following which the Chairman, Ragunath Kesavan, called the AGM to order.

The Members rose and observed a minute of silence in memory of 35 Members who had passed away during the past term. Subsequently, Edmund Bon, Chairperson of the Constitutional Law Committee, was invited to brief Members about the MyConstitution Campaign, a nationwide educational campaign helmed by the committee to raise the rakyat’s awareness of provisions of the Federal Constitution.

The minutes of the 63rd AGM held on 14 March 2009, the Extraordinary General Meeting (EGM) held on 15 May 2009 and the EGM held on 12 December 2009 were considered, approved and adopted. The President’s Report, committees’ reports and the Audited Accounts of the Malaysian Bar for the year ended 31 December 2009 were also considered, approved and adopted.

Sulaiman Abdullah

Sulaiman Abdullah, past President of the Bar, then took to the floor to convey his congratulations and thanks to the Bar Council Secretariat for the excellent work executed over the past term. He particularly wished to convey his appreciation to Rajen Devaraj (Chief Executive Officer), Chin Oy Sim (Deputy Chief Executive Officer), and Lim Ka Ea (Executive Officer of the Constitutional Law Committee). He also extended his congratulations to the Secretariat’s production team for the 2009/2010 Annual Report for the quality of the report, which in his words was “very well proofread and left me with very little work left to do”.

Major M.S. Murthi

Five motions had been proposed for consideration at the AGM. The first motion to be addressed was one to censure the Advocates and Solicitors Disciplinary Board, and had been jointly proposed by Derek Tan Boon Chong, Major M.S. Murthi, Lian Meng Wah and Mohamed Nordin bin Hj Mohd Yusoff

During the lively debate on this motion, the following issues were highlighted:

(a) Whether, in condemning the Disciplinary Board, the Members of the Bar were saying that they prefer to be regulated by an external body such as the Attorney General’s Chambers as opposed to the current scheme of self-regulation through peer review;
(b) Whether the language used in the proposed motion was too strong and extreme, furthermore the allegations have not been proven;
(c) Whether the motion was tainted, as some of the lawyers proposing it had been previously hauled up by the Disciplinary Board for misconduct; and
(d) Whether the AGM is the proper forum to bring up a complaint against the Disciplinary Board and if not, whether a proper structure should be implemented for such a purpose.

When put to a vote, the motion was defeated by a majority, as there were 192 votes against the motion, 27 in favour, and 33 abstentions.

Sulaiman Abdullah, Richard Wee, Roger Tan, SS Muker, K Shanmuga, Low Beng Choo and Ambiga Sreenevasan then took to the floor in turns to present their arguments on the motion proposed by Lee Swee Seng and seconded by Pang Shui Wu, calling for repeal of Rule 52(c) of the Legal Profession (Practice and Etiquette) Rules 1978. The motion proposed that the Bar resolve that “an advocate and solicitor accepting less than the scale fees laid down under the Solicitors’ Remuneration Order 2005 (SRO) is not unprofessional and improper conduct and that all relevant Rules and Bar Council Rulings on the matter be repealed and that the Fees Structure under the SRO be used as a guide only on fees to be charged for non-contentious work”. In addition, it proposed “that pending such action being taken, there shall be a moratorium of the enforcement of the SRO”.

Roger Tan	Ambiga

Swee Seng, Roger and Ambiga were among the Members who spoke passionately about how the lack of effective enforcement renders the SRO toothless, as the giving of discounts is “so rampant on the ground”. Ambiga suggested that whistleblowers be encouraged to come forward and that the Bar take anonymous calls against callers, as is done in Singapore, in order to escalate the efforts to stamp out the breaches of the SRO. Roger opined that either the necessary enforcement powers should be granted to the Bar Council or the scale fees should be abolished altogether, so that lawyers who adhere to the scale fees are not disadvantaged.

The issues in this motion have been debated many a time over the years, and as recently as during the last AGM, and today, it was again defeated by the majority: only 10 Members voted in its favour, while 121 votes were cast against it, and 16 Members abstained.

Swee Seng

Lee Swee Seng was persuaded to withdraw his other motion, which called the Bar Council “to urge the Government to pay reasonable compensation to landowners affected by the erroneous decision of the Federal Court in Adorna Properties case and matters incidental thereto”. The Chairman invited him, as a member of the incoming Bar Council, to contribute to the Council’s ongoing efforts to advocate on this matter, and to raise it again, if necessary, at the next AGM.

Tommy Thomas

Tommy Thomas also agreed to withdraw his motion pertaining to the draft Combined Rules of Court after the Chairman explained that the Bar Council had received good news from the Judiciary just a few days ago, in that it agreed to work on the Bar Council’s form of the rules submitted in 2004. Tommy requested that the Bar Council revisit the whole matter, given the “changed landscape” since 2004, to evaluate whether the combined rules are even needed today.

Ragunath Kesavan, in his capacity as Chairman of the Bar Council, was the proposer, on behalf of the Bar Council, for the fifth motion. He explained some of the serious and far-reaching repercussions of the proposed scheme by Bank Negara Malaysia (BNM) to cover third party bodily injury and death. Every speaker who stood up to talk on the motion also objected to the proposed scheme and condemned the fact that BNM had “refused, neglected and failed” to consult relevant stakeholders. Sulaiman Abdullah made known his position eloquently and ended by calling on the entire House to speak in one voice on this matter. Following that, the AGM ended on a strong and positive note when the motion was carried unanimously.

At the close of the AGM, Sulaiman Abdullah put on record the Malaysian Bar’s thanks to the President for chairing the AGM efficiently and for the work done over the past year.

A total of 593 Members turned up for the AGM. All matters in the agenda having been considered and covered, the AGM was adjourned at 2:40 pm.

In the first Bar Council meeting held immediately after the AGM, the incumbent Office Bearers were re-elected for the 2010/2011 term:

President:              Ragunath Kesavan
Vice-President:       Lim Chee Wee
Secretary:              George Varughese
Treasurer:              Tony Woon Yeow Thong (Negeri Sembilan)

The remaining 32 members of the incoming Bar Council are:

Andrew Khoo Chin Hock
Cecil Rajendra
Christopher Leong
Edmund Bon Tai Soon
Hendon Mohamed
Kuthubul Zaman Bukhari
Lee Swee Seng
Low Beng Choo
Sulaiman Abdullah
Syamsuriatina bte Ishak
Yasmeen bte Hj Mohd Shariff
P Suppiah (Johore)
K Mohan K Kumaran (Johore)
Ahmad Taufiq bin Baharum (Kedah/Perlis)
Nazira bte Abd Rahim (Kedah/Perlis)
Aziz bin Haniff (Kelantan)
Aaron Abraham (Kelantan)
Anand Ponnudurai (Kuala Lumpur)
Brendan Navin Siva (Kuala Lumpur)
Ng Kong Peng (Malacca)
Jaspal Singh Gill (Malacca)
Zainuritha-Alfa bte Datuk Abu Hassan (Negri Sembilan)
Sarengapani s/o K Rajoo (Pahang)
M Ramachelvam (Pahang)
Murelidaran Navaratnam (Penang)
Gnasegaran s/o Egamparam (Penang)
Mad Diah bin Endut (Perak)
Shamsuriah bte Sulaiman (Perak)
Rajpal Singh s/o Mukhtiar Singh (Selangor)
Kanarasan Ghandinesen (Selangor)
Amirruddin bin Abu Bakar (Terengganu)
Mukhtar bin Abdullah (Terengganu)

Motion against the Advocates & Solicitors Disciplinary Board

(Proposed by Derek Tan Boon Chong, Major M.S. Murthi, Lian Meng Wah and Mohamed Nordin bin Hj Mohd Yusoff, dated 18 February 2010)

Whereas the Advocates and Solicitors Disciplinary Board (the Board) was constituted under Section 93 (3) C under the Legal Profession Act 1976.

Whereas the Board is appointed by the Chief Judge Malaya who [sic] the appointing authority in consultation with the Bar Council.

Whereas the Board has time and again abused their Draconian Powers under Section 100 (6) (c) and has adjudicated complaints summarily without regards to the rights of the fellow members of the Bar.

Whereas the Board has repeatedly demonstrated a definite bias in favour of the complainants and has shown a corresponding inherent bias against the fellow members of the Bar in the adjudicating process.

Whereas whenever the Board disagrees with the Disciplinary Committee finding or sentence, the members of Bar are required to appear and show cause whilst the Board invariably and contrary to natural justice has never given any written grounds for its disagreement or enhancement of punishment imposed on the members of the Bar.

Whereas it is the interest of the profession that any abuse of power by the Disciplinary Board including any complaints arising therefrom and addressed to the Chief Judge as the Appointing Authority is made known to the fellow members of the Bar.

Whereas consequent thereto a complaint of misfeasance in public office and irresponsible conduct made to the Chief Judge by 2 members of the Bar through their Counsel as per the letter dated 26.01.2010 is attached hereto as exhibit ‘A’ in order to incorporate the contents thereto as part of this motion.

Whereas the contents of the said letter clearly demonstrates the arrogance, misfeasance, abuse of power, imperious and dictatorial conduct against the fellow members of the Bar which is prejudicial to the interest and adversely affect the livelihood of fellow members of the Bar.

NOW IT IS HEREBY RESOLVED:

That the Malaysian Bar hereby passes a vote of no confidence against the Advocates & Solicitors Disciplinary Board on account of its demonstrated arrogance, misfeasance as well as imperious and dictatorial conduct against the members of the Bar by giving unequal treatment to the members vis-à-vis the complainants in the adjudicating process and abusing Section 100 (6) (c) for statistical advantage and thereby allowing the complainants to hold the members of the Bar to ransom by post, including by proxy, without even the necessity for the complainant to appear in person to present their case or be subjected to cross-examination.

The motion was put to a vote, but was not carried (192 votes against, 27 for, 33 abstentions).

Motion calling for repeal of Rule 52(c) of the Legal Profession (Practice and Etiquette) Rules 1978 in that an advocate and solicitor accepting less than the scale fees laid down under the Solicitors’ Remuneration Order 2005 (SRO) is not unprofessional and improper conduct and that all relevant Rules and Bar Council Rulings on the matter be repealed and that the Fees Structure under the SRO be used as a guide only on fees to be charged for non-contentious work

(Proposed by Lee Swee Seng and seconded by Pang Shui Wu, dated 24 February 2010)

WHEREAS the enforcement of the SRO is near impossible with advocates and solicitors under pressure from clients including developers and banks to give discounts to scale fees and bearing in mind that those receiving a benefit under the discounts given would not be coming forward with evidence of the discounts having been given and enjoyed;

WHEREAS the near impossibility of enforcement of the SRO has led to an anomalous situation where the SRO is honoured more by its breach rather than by its compliance and that those advocates and solicitors who seek to abide by it are not getting the work because clients would invariably go to those who are prepared to give discounts;

WHEREAS the current breach of the SRO with near impunity has led to the SRO being held in disrepute with stakeholders not complying with it especially developers and banks;

WHEREAS the rise of consumerism in many jurisdictions have led to the passing of the Fair Competition Act or policies where persons and professionals coming together to decide on an inflexible fee structure is deemed contrary to fair trade practices and in fact is monopolistic and smacks of a cartel which is prohibited in many jurisdictions,

WHEREAS there is nothing inherently and intrinsically wrong with giving a discount especially to poor and needy clients or where volume work might justify lower fees bases on an economy of scale and that respecting human rights of consumers and the public should constrain to give them a choice for fees for professional service is concerned.

IT IS HEREBY RESOLVED THAT:

1. That the BAR COUNCIL take all necessary steps to repeal of Rule 52(c) of the Legal Profession (Practice and Etiquette) Rules 1978 in that an advocate and solicitor accepting less than the scale fees laid down under the Solicitors’ Remuneration Order 2005 (SRO) is not unprofessional and improper conduct and that all relevant Rules and Bar Council Rulings on the matter be repealed and that the Fees Structure under the SRO be used as a guide only on fees to be charged for non-contentious work.

2. That pending such action being taken, there shall be a moratorium of the enforcement of the SRO.

The motion was put to a vote, but was not carried (121 votes against, 10 for, 16 abstentions).

Motion calling the Bar Council to urge the Government to pay reasonable compensation to landowners affected by the erroneous decision of the federal court in Adorna Properties case and matters incidental thereto

(Proposed by Lee Swee Seng and seconded by Annou Xavier, dated 4 March 2010)

WHEREAS:

A.    The Federal Court had on 21.1.2010 in the case of Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269 (“Tan Ying Hong”) departed from the decision of the Federal Court in Adorna Properties Sdn Bhd v Boonsoom Boonyanit [2001] 2 CLJ 133 (“Adorna Properties”) on the ground that the Federal Court had in the case of Adorna Properties misconstrued the law in s. 340(1), (2), (3) National Land Code 1965 (“NLC”) and by so doing had erroneously held that the concept of indefeasibility is one of immediate indefeasibility.

B.    The owner in Adorna Properties case, Boonsom Boonyanit (deceased) is left with no remedy as a result of the erroneous decision of the Federal Court.

C.    It is an affront to the principle of fairness and justice that Boonsom Boonyanit and/or other landowners under similar circumstance are left with no remedy merely because the Federal Court in Adorna Properties case had misconstrued the law which law was applied for no less than 9 years before it was overruled by a different panel of the Federal Court in Tan Ying Hong’s case.

D.    Although, the Federal Court in Tan Ying Hong’s case has correctly interpreted s. 340(1), (2), (3) NLC 1965, it nevertheless, does not resolve the injustice caused to the landowners (in the event the property is subsequently transferred to a bona fide purchaser for value) or to the bona fide purchaser for value (in the event the sale is set aside due to fraud or forgery), as the case may be, as one of two equally innocent party would have to suffer as a result of the fraudster’s action.

IT IS HEREBY RESOLVED THAT:

1.    The Bar Council makes immediate representation to the Attorney General Chambers to draft an Act for its passage through Parliament to provide reasonable compensation to land owners unjustly deprived of their lands by the erroneous decision of the Federal Court in Adorna Properties.

2.    That the Attorney General Chambers do make the necessary amendments to the NLC 1965 to provide for a Compensation Scheme to compensate innocent parties affected by the acts of fraudsters.

3.    That the Attorney General Chambers do make the necessary amendments to the NLC 1965 to allow land owners of unencumbered land to caveat their own land as a protection against fraud.

The motion was withdrawn.

Motion to be proposed pursuant to section 66 (6) of the Legal Profession Act, 1976 at the AGM of the Malaysian Bar, Saturday, 13th March 2010

(Proposed by Tommy Thomas, dated 5 March 2010)

This House Resolves that the Bar Council briefs the Malaysian Bar:-

(i) on the current status of the draft Combined Rules of Court intended to replace the Rules of the High Court, 1980 and the Subordinate Rules, 1980; and
(ii) whether there is an objective need for a change in the existing Rules;

to enable the Malaysian Bar to give appropriate directions to the incoming Bar Council on the position that the Bar should take with regard to the said draft Combined Rules.

The motion was withdrawn.

Motion regarding proposed scheme by Bank Negara Malaysia to cover third party bodily injury and death

(Proposed by Ragunath Kesavan (Chairman, Bar Council), on behalf of the Bar Council, dated 5 March 2010)

Whereas the Malaysian Bar:

(a)    takes note that the Government plans to introduce a new scheme to cover third party bodily injury and death, which it has indicated will be finalised for implementation in the second half of 2010;

(b)    is concerned that the proposed reforms would alter adversely the landscape of the motor insurance scheme, to the detriment of motor accident victims, their families and dependants;

(c)    is concerned that the proposed reforms, which will have far-reaching effect, seem to be driven solely by the insurance industry on the basis of profitability, without any consideration being given to public interest or social responsibility;

(d)    is concerned over the lack of transparency and accountability on the part of Bank Negara Malaysia, evidenced by its failure to reveal the mechanics, funding and operation of the proposed reforms;

(e)    notes with concern that the working committees that have been established currently comprise solely industry groups, namely insurance companies only, indicating that profitability of the insurers is an overriding factor behind the proposed reforms;

(f)    is concerned that this major revamp of the existing motor insurance scheme is being proposed without any consultation of the relevant stakeholders, such as the Bar Council and public interest groups, or the public at large;

(g)    notes that the system of administration of justice has been enhanced to expedite resolution of claims and to address issues of delay; and

(h)    notes that the quantum for damages for personal injury claims is already severely limited under the Civil Law (Amendment) Act 1984, which, amongst others:

(i)    overlooks the socio-economic realities in Malaysia, where there are no old age pensions nor payments to the unemployed, very few persons cease working at the age of 55 and many parents depend on their children to support them in their old age;

(ii)    does not consider the loss of earnings of a person who is above the age of 55 at the time of his death; and

(iii)    limits damages for bereavement, wherein the spouse of a deceased person, or the parents of a deceased minor who never married, are entitled to only RM10,000; and

(iv)    is therefore concerned that any additional changes proposed by Bank Negara Malaysia would be to the further detriment of the public.

It is hereby resolved that:

(1)    The Malaysian Bar strongly calls on Bank Negara Malaysia to provide full and frank disclosure of the details of the proposed scheme;

(2)    In view of the wide social and economic ramifications of the proposed scheme, the Malaysian Bar strongly calls on the Government to immediately engage and consult with all stakeholders and relevant segments of society, and to take their views into consideration before finalising the proposed reforms; and

(3)    The function and discretion of the Courts in deciding on the issues of liability or quantum must be maintained.

The motion was unanimously carried.

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