|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 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.
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(SRO) is not unprofessional and improper conduct and that all relevant Rules and Bar Council Rulings on the matter be repealed and that the Fees Structure under the SRO be used as a guide only on fees to be charged for non-contentious work”.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”.
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.
In the first Bar Council meeting held immediately after the AGM, the incumbent Office Bearers were re-elected for the 2010/2011 term:
Motion against the Advocates & Solicitors Disciplinary Board
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
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
A. The Federal Court had on 21.1.2010 in the case of Tan Ying Hong v Tan Sian San & Ors  2 CLJ 269 (“Tan Ying Hong”) departed from the decision of the Federal Court in Adorna Properties Sdn Bhd v Boonsoom Boonyanit  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.
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
(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.
Motion regarding proposed scheme by Bank Negara Malaysia to cover third party bodily injury and death
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.
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