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Motion proposed by the Bar Council pursuant to Section 65(1) of the Legal Profession Act 1976:

INTRODUCTION

1. On 19th September 2007, a video recording was released into the public domain, showing what appears to be a member of the Bar speaking with a senior Judge on a mobile phone, discussing and apparently lobbying and facilitating the appointment and promotion of some judges.

2. The nature and contents of the video recording give rise, among other things, to the following serious concerns:

(a) the manner, circumstances and personalities involved in the apparent lobbying or facilitation of such appointments and promotions which do not accord with Part IX of the Federal Constitution;

(b) the apparent involvement of personalities in the process who have or had cases before the Courts, whether as Counsel or litigant;

(c) the wholly inappropriate criteria and considerations apparently applied in the promotion and appointment of judges; and

(d) the references therein to allegiance or loyalty of judges which violate their Oath of Office and Allegiance as provided in Article 124 and the Sixth Schedule of the Federal Constitution.

3. On 27th September 2007, the Government set up an Independent Panel of Investigation for the sole purpose of determining the authenticity of the video recording which Panel had no powers to enable it to undertake its tasks effectively.

4. On 7th November 2007, it was announced that the Independent Panel issued three separate reports which have yet to be made available to the public as at the date hereof.

5. On 16 November 2007, the Prime Minister Datuk Seri Abdullah bin Haji Ahmad Badawi announced that a Royal Commission of Inquiry on the video clip will be established soon and that the terms of reference and possible members of the Commission will be discussed and determined at the weekly Cabinet meeting to be held on 21 November 2007.

WHEREAS:

THE MALAYSIAN BAR

A. NOTING that the issue of the video recording is yet another incident in a series of incidents that have affected the image of and eroded public confidence in the institution of the Judiciary.

B. NOTING that the video recording is a matter of grave public concern and a serious affront to the integrity and independence of the institution of the Judiciary.

C. RECALLING that the Malaysian Bar and civil society have urged the setting up of a Royal Commission of Inquiry to discover the whole truth of the matter, as well as to inquire into related issues concerning the Judiciary.

D. OBSERVING that recent statements have been made by the police threatening to charge or prosecute whistleblowers, which may include anyone who may have relevant information that is critical to a thorough investigation.

E. RECOGNISING that an Independent Judiciary and Independent Bar are critical in the maintenance of the Rule of Law.

NOW RESOLVES as follows:

1. The Malaysian Bar strongly deplores and condemns any member of the Bar who indulges in any conduct that may adversely affect the independence, integrity and credibility of the Judiciary or the administration of justice;

2. The Malaysian Bar strongly deplores and condemns the manipulation of the appointments and promotions process of Judges by any party which interferes with and adversely affects the independence, integrity and credibility of the Judiciary;

3. The Malaysian Bar welcomes the announcement of the Prime Minister to establish a Royal Commission pursuant to the Commissions of Enquiry Act 1950 (Act 119);

4. The Malaysian Bar calls upon the Government to advise the Yang di-Pertuan Agong to establish a Royal Commission pursuant to the Commissions of Enquiry Act 1950 (Act 119) with, inter alia, the following terms of reference:

(a) To enquire into, consider and determine the circumstances of the video recording, and the veracity of the assertions made by the person appearing in the said recording.

(b) To enquire into, consider and determine with a view to making appropriate recommendations, the following:

(i) the manner, nature and extent of involvement (if any) of all parties mentioned in the video recording and the nature of their dealings with the Executive and the Judiciary in connection with the appointment and promotion of judges;

(ii) the manner, nature and extent of involvement (if any) of all parties mentioned in the video recording directly or indirectly in cases before Courts in Malaysia and the implications arising therefrom;

(iii) all acts carried out by the judges mentioned in the recording with specific regard to the basis of their appointments and promotions; and

(iv) generally, the appointment and promotion of judges, including the procedure, methodology and criteria applied.

(c) To enquire into, consider and determine the veracity of the allegations made by Thirunama Karasu a/l Kandar Velupillai contained in the 2 police reports lodged by him (Report No 2115/07 dated 16 March 2007 and A/002187/07 dated 19 March 2007) wherein serious allegations of corruption have been made against a member of the Bar, a former Chief Justice of Malaysia, a former Attorney General, a former senior police officer, a former Court of Appeal Judge, a present Court of Appeal Judge, a former High Court Judge and a former Industrial Court Chairman;

(d) To investigate and to make recommendations for judicial reform and on any aspect of the administration of justice in Malaysia.

5. The Malaysian Bar reiterates its repeated calls for the establishment of an Independent Judicial Appointments and Promotions Commission, in the manner proposed in its earlier Memorandum to the Government

6. The Malaysian Bar calls upon the authorities to cease issuing threats to prosecute innocent persons who report, highlight, reveal or bring to the attention of the authorities matters of public or national interest; and

7. The Malaysian Bar welcomes the Prime Minister’s preparedness to meet the Bar leaders to discuss issues of concern to the Bar regarding the administration of justice and the Judiciary; and expresses its hope that such dialogues will be held on a regular basis.

Motion proposed by Sivarasa Rasiah

WHEREAS

A. In December 2006, the scrutineers did not declare the results of the postal ballot elections for the Bar Council 2007/8 and had rendered a report stating their reasons.

B. In February 2007, the Bar Council appointed replacement scrutineers, who completed the statutory tasks and declared the results.

C. Two motions seeking to condemn the Bar Council for its handling of the election, and calling for fresh election, were both overwhelmingly defeated at the Annual General Meeting of the Malaysian Bar held on 17th March 2007 (“the 2007 AGM”).

D. A third motion, proposed by A. Kanesalingam, commending the actions of the Bar Council, and adopting or ratifying the decisions taken by the Bar Council with regard to the said election, was overwhelmingly carried at the 2007 AGM (with 350 members voting in favour, 13 against and 22 abstentions).

E. At the conclusion of the 2007 AGM, the Bar Council 2007/8 held its first meeting, and elected the office-bearers of the Malaysian Bar for the year 2007/2008.

F. In November 2007, the High Court in Ronnie Wong Chim Yiam v. the Malaysian Bar dismissed an application by a member of the Bar seeking declarations that the said appointment of the replacement scrutineers by the Bar Council was (allegedly) “ultra vires” the LPA, and that the results of the said elections so declared were null and void.

G. Notwithstanding: (a) the events described in paragraphs A to F above, (b) the fact that the issues concerned had been discussed at length by the Malaysian Bar and resolved at the 2007 AGM, and (c) the fact that a law suit to declare the said elections null and void has failed; now, yet another action by way of Originating Summons R2-24-40-2007 has been filed and served by Boniface Lobo as Plaintiff against, inter-alia, the Malaysian Bar in which he is purportedly “suing on behalf of himself and representing all other members of the Malaysian Bar (except Yeo Yang Poh and Ambiga Sreenevasan)”, seeking declarations (inter alia) that the Bar Council elections 2007/2008 is null and void, that the Bar Council 2007/8 had invalidly taken office months ago in March 2007, that the Bar Council members declared as elected on 17th March 2007 be restrained from acting or continuing to act as members of the Bar Council, that Ambiga Sreenevasan was not properly elected as President of the Malaysian Bar way back in March 2007, and for an Order that fresh elections be held (in respect of a term of office the larger part of which has by now elapsed).

H. Boniface Lobo ought not to claim to be representing all members of the Bar (minus two), especially when the Bar in the 2007 AGM had made its position known which position is contrary to the one he is now attempting to assert.

I. In any event, having regard to the adoption or ratification of the Bar Council’s decisions by the Malaysian Bar (by the passing of A. Kanesalingam’s motion at the 2007 AGM referred to in paragraph D above), as a matter of fact the Malaysian Bar in general meeting, as the sovereign body under the LPA, had affirmed and ratified all actions taken by the Bar Council with respect to the said elections.

J. The action instituted by Boniface Lobo amounts to an indirect attempt to cast doubt on the validity of the current leadership of the Malaysian Bar, a Bar which has undertaken (and will continue to undertake) important duties and responsibilities, and which has occupied (and will continue to occupy) a unique and important position in the Malaysian society. Thus, it is in the interest of the Bar for its members to reaffirm their position taken in the 2007 AGM and make their stand loud and clear, and to emphatically indicate their confidence in the current leadership.

IT IS HEREBY RESOLVED as follows:

1. The Malaysian Bar does not agree with and does not support the action filed by Boniface Lobo vide Originating Summons R2-24-40-2007;

2. That the action filed by Boniface Lobo vide Originating Summons R2-24-40-2007 is contrary to the wishes of the Malaysian Bar, and Boniface Lobo ought not to bring his action on behalf of all the members of the Malaysian Bar;

3. The Malaysian Bar reaffirms its resolution passed in the 2007 AGM referred to above, endorses the election of the office-bearers on 17th March 2007, and expresses its confidence in the current leadership;

4. The Bar Council shall continue to instruct counsel to vigorously contest the action brought by Boniface Lobo, and to take such steps as may be necessary or desirable in relation thereto (including applying to strike out the action if so advised by counsel).

Motion proposed by Malik Imtiaz Sarwar and seconded by Haris Bin Mohamed Ibrahim

1. Whereas on 19.09.2007, a video clip (the “Video”) was made public, the Video depicting a person bearing a resemblance to a senior member of the Malaysian Bar in the midst of a telephone conversation which, from the nature of the conversation depicted, appeared to have occurred sometime in the year 2002, with a person who, from the nature of the telephone conversation and a subsequent video Clip (the “2nd Video”), appears to have been Ahmad Fairuz, then Chief Judge West Malaysia/Acting President of the Court of Appeal, Malaysia;

2. Whereas the Video and the 2nd Video, , have serious implications and ramifications as to the integrity of the administration of justice. These pertain to, amongst others:

2.1 the manner in which judges were, and are, appointed and promoted;

2.2 interference by the Government in the process of appointments and promotions beyond the limited involvement permitted under the Federal Constitution;

2.3 the involvement of external influences and factors, including those of a corporate or commercial nature, that had, and have, no bearing on the capability and integrity of candidates for appointments and promotions;

2.4 interference by the Government with the Judiciary directed at the outcome of the proceedings before the superior courts;

2.5 the possibility of partisanship and allegiance amongst some members of the Judiciary, such partisanship and allegiance having a bearing on the outcome of proceedings before the superior courts; and/or

2.6 the possibility that the practices revealed in the Video had continued in the period after the recording of the Video;

3. Whereas the serious implications and ramifications were, and are, matters of national importance and of urgent priority not least for the fact of the further undermining of the already low levels of public confidence in the Judiciary and, as consequence of this, the undermining of the democratic process established under the Malaysian constitutional framework;

4. Whereas the Video had resulted in a public outcry and demands by civil society, including the Malaysian Bar, for the urgent establishment of a Royal Commission of Enquiry, such a commission being the only mechanism suited to the objective of a meaningful determination of the serious matters arising from the Video in light of the powers such a commission would be vested with by law and, further, the independence of such a commission, a crucial requirement as the Government is itself implicated in the Video;

5. Whereas despite it having been implicated in the Video, the Government:

5.1 has refused to recognize the seriousness of the implications and ramifications of the Video;

5.2 has instead attempted to downplay the significance of the Video;

5.3 has attempted, without sufficient basis to do so, to undermine the possible integrity of the Video; and

5.4 has politicized the Video and its disclosure;

6. Whereas it is imperative that a Royal Commission of Enquiry is comprehensively mandated to consider the implications and ramifications of the Video. This is more so for the fact that Ahmad Fairuz has not issued a public denial of the authenticity of the Video nor of his being the person spoken to;

7. Whereas the Malaysian Bar had expressed its disapproval of the stance of the Government by a peaceable march of a significant number of its members on 26.09.2007 and the submission of inter alia a memorandum calling for the establishment of a Royal Commission of Enquiry to the Prime Minister;

8. Whereas in direct opposition to the call by civil society for the establishment of a Royal Commission of Enquiry, the Government had instead established an investigative panel which, by its own admission, has no powers in law, to consider only the question of authenticity;

9. Whereas the Government has further attempted to obstruct genuine efforts to address the serious implications of the Video by unreasonably requiring the production of the full recording of the Video notwithstanding the concern by the persons involved in the recording of the Video for their safety and integrity. The Government has further unreasonably refused to give credence to these concerns notwithstanding a history of prosecution of whistleblowers and the continued threat to invoke preventive detention laws in a wide array of matters;

10. Whereas the three members of the investigative panel have completed their inquiries and submitted their findings separately, and notwithstanding media reports that the investigative panel has recommended the establishment of a Royal Commission of Enquiry;

11. Whereas the events set out above clearly point to the existence of a Judicial crisis and serious doubts as to the integrity of the judicial system and its independence;

12. Whereas the Bar has risen to defend the cause of justice where the Video is concerned, such action on the part of the Bar being equally a defence of the institution of the Judiciary, thus far the Judiciary has remained silent about the need to properly and meaningfully address the Video and the very serious implications on the administration of justice;

13. Whereas the situation at hand is exceptional and public confidence requires that the Judiciary be seen to act in a manner aimed at clearing suspicion of itself as well as regaining public confidence;

14. Whereas the Bar and the Judiciary are inextricably linked, both being constituent elements of the Malaysian administration of justice, and to that end, action on the part of the Bar itself is insufficient to address the grave issues at hand;

15. Whereas in light of the Government having recently declared its intention to establish a Royal Commission of Enquiry, it is imperative that the terms of reference of such a Comission must provide for a comprehensive enquiry into the implications and ramifications of the Video.

IT IS HEREBY RESOLVED THAT:

A. The Royal Commission Of Enquiry

1. The Malaysian Bar calls upon the Judiciary through the Acting Chief Justice, to support calls for the establishment of a Royal Commission of Enquiry comprehensively mandated to enquire into the implications and ramifications of the Video.

B. Independent Judicial Appointments and Promotions Commission

2. The Malaysian Bar further calls upon the Judiciary to, support the establishment of an independent judicial appointments and promotions commission to the Duli Yang Maha Mulia Yang Dipertuan Agong and the Government of Malaysia; and

C. Institutional Reforms

3. The Malaysian Bar further calls upon the Judiciary to establish a joint committee with the Malaysian Bar to urgently consider the need for institutional reforms, if any, and the manner in which such reforms can be effected.