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Number of Members present: 1,752

Motion 1:

To consider and, if approved, to fix the annual subscriptions payable by members of the Bar at RM650.00.

Proposer: Bar Council

Resolution:

The Motion was defeated by an overwhelming majority.

Motion 2:

1. It has been and indeed is an established and entrenched Principle and rule of Law in the Commonwealth and in Common Law that Advocates enjoy absolute privilege for all, any and every statement(s) uttered in the course of judicial proceedings.

2. Every Advocate has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful which he thinks will help his client’s case.

3. Every Advocate as an officer of the Court concerned in the administration of justice has an overriding duty to the court and should be free to act for his/her client fearlessly and to uphold the cause of justice and act without fear or favour pursuant to Section 42(1)(a) of the Legal Profession Act, 1976 (which is derived from the Common Law principles).

4. An Advocate should therefore be free from civil and/or criminal prosecution(s) for statement(s) uttered in the course of judicial proceedings especially so in the larger interest to protect Advocates who are not malicious and who are acting bona fide.

5. That irreparable injury to justice would be caused if there were any departure from the aforesaid principles and Rule of Law which has so long existed, is established and entrenched.

6. The independence of Advocates is of great and essential value to the integrity, efficacy and in the elucidation of the truth in the administration of justice and it is neither reasonable nor desirable to change the present position in regard to independent immunity of Advocates.

7. It is not merely a right but the duty of Advocates to speak out fearlessly in a Court of Law.

8. There already exists sufficient safeguards against any abuses of Advocates in the discharge of their duties in Court namely:-

(a) That they could be cited for contempt of court either by the presiding Judge or at the instance of the Attorney-General.

(b) That they could be referred to the Disciplinary Board with a view that disciplinary action be taken.

9. There exists no reported precedent where an Advocate has been charged for a criminal offence for statement(s) uttered in the course of judicial proceedings in any part of the Commonwealth, thus creating legal history.

10. There now exists a real likelihood of danger that the floodgates would be opened where Advocates can be charged for a variety of other criminal charges for statements made in the course of judicial proceedings.

Now it is hereby resolved:-

(a) That the Malaysian Bar hereby resolves that the existing absolute privilege of Advocates for all any and every statement(s) uttered in the course of judicial proceedings shall not be the subject of a criminal prosecution and/or a civil suit.

(b) That the Attorney-General and the Malaysian Government accord due recognition, respect and regard to Advocates discharging their duties in upholding the cause of justice especially for statements uttered in the course of judicial proceedings pursuant to Section 42(1)(a) of the Legal Profession Act, 1976.

(c) That the Attorney-General and the Malaysian Government respect the rights of an independent Bar and an independent legal profession.

(d) The Attorney-General is hereby urged to exercise his powers/discretion under Article 145(3) of the Federal Constitution and Section 376(1) of the Criminal Procedure Code in accordance with and having regard to the aforesaid established and entrenched principles and the Rule of Law.

(e) The Attorney-General would therefore be setting a dangerous and unfair precedent if he continues in the prosecution of Advocates for statements uttered in the course of judicial proceedings.

(f) Finally the Attorney-General is hereby urged to withdraw criminal prosecution against lawyer Karpal Singh for statements uttered in the course of judicial proceedings.

Proposer: Mr P. Uthayakumar
Seconders: Mr M. Manogar & 107 joint proposers and seconders

Resolution:

The Motion was carried with an overwhelming majority with 6 against and 7 abstentions.

Follow-up Action:

The Bar Council held a watching brief in this case. The charge against Mr Karpal Singh was withdrawn on 14th January 2002.

Motion 3:

Whereas:-

1. This is the 43rd year of our country’s independence from British colonial rule on 31 August 1957 and it is time that the government of the day broadens “democratic space” and begins treating Malaysians as adult, mature and thinking individuals who must be given access to information and differing opinions irrespective of whether they are from political parties, societies, non-governmental organisations or individuals. Malaysians have the capacity to evaluate, analyse and come to sensible conclusions.

2. Our Federal Constitution in Part II entitled “Fundamental Liberties” in Article 10(1)(a) provides for the “right to freedom of speech and expression”.

3. There is a need for a more liberal and tolerant policy in the issuances of permits and/or licences for publications and radio/television stations, which are tools and means of expression and opinion forming.

4. The permit of the publication “Harakah”, which apparently sold about 350,000 copies per issue, has recently been imposed with new conditions with regard to the frequency of publication, from twice weekly to twice monthly. Some years ago the permits of the “Harakah” and the “Rocket” were imposed with the condition that these publications could only be sold to members of the party publishing them which is contrary to the principle that all publications should be freely accessible to all Malaysians.

5. The legislature through the Printing Presses and Publications Act 1984, in particular Section 13A(1) have excluded judicial review of the executive’s decision in granting, revoking or suspending a licence or permit.

6. In excluding “judicial review”, the legislature and/or the executive seem to cast aspersions on the judiciary with regard to their ability to make wise and just decisions in accordance with the law; and have also crippled the judiciary in their task of preventing arbitrariness in executive decision making.

Now it is hereby resolved:

A. That the Malaysian Bar calls upon the Government of Malaysia to remove all restrictions in law and/or otherwise that limit the full exercise of the right to freedom of speech and expression in Malaysia.

B. That the Malaysian Bar calls for the repeal and/or amendment of the Printing Presses and Publication Act 1984 to ensure that there will be no restrictions and imposition of conditions on permits/licences of publications especially with regard to the frequency of publications and the access of the said publications to all Malaysians.

C. That the Malaysian Bar calls for repeal and/or amendment of the Printing Presses and Publications Act 1984 and all other Acts with similar provision that exclude judicial review of executive decisions in whatever manner.

D. That the Malaysian Bar calls on the government of Malaysia to immediately remove all conditions and restrictions presently placed on publications, especially with regard to frequency of publication and access to all Malaysians.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Follow-Up Action:

The Bar Council sent a formal letter addressed to the Deputy Prime Minister expressing the Council’s support for a total repeal of the Printing Presses and Publications Act 1984 and the setting up of an independent Press Council.

Motion 4:

Whereas:-

1. Today, for more than 90% of the criminal cases, the Magistrate’s Court and the Sessions Court are the courts of first instance. With regard to civil and commercial matters, the lower courts have the jurisdiction to hear disputes where the sum disputed or the value of the subject matter is not exceeding RM250,000.00.

2. The mechanisms provided in the Federal Constitution to ensure the independence of the Judiciary (i.e. judges of the High Court, Court of Appeal and Federal Court, the Chief Justice, and President of the Court of Appeal and the Chief Judges of the High Courts) does not extend to Magistrates and Sessions Court Judges.

3. For example, Magistrates are being remunerated at the scale similar to those of other civil servants with equal education qualification and length of service.

4. All members of the Judicial Services, which includes Magistrates and Sessions Court Judges, and the Legal Services come under the jurisdiction of the Judicial and Legal Service Commission (ref. Art. 138 Federal Constitution), whereby the Attorney General is a member of the said Commission. Thus, the “prosecutors” and “judges”, especially when it comes to criminal matters, come under the jurisdiction of the same Commission and this does not augur well, for “justice must not only be done but also be seen to be done”.

5. Some Magistrates have been appointed as Deputy Public Prosecutors (DPP), and some DPPs have also been appointed as Sessions Court Judges.

6. Many Magistrates appointed are fresh law graduates. The only pre-requisite for the appointment as a Magistrate or a Sessions Court Judge is that he/she must be a member of the Judicial and Legal Services (see sec. 60 & 78A of the Subordinate Courts Act 1948). There is no other qualifications requirements akin to those provided for in Article 123 of the Federal Constitution when it comes to the appointment of the judiciary.

7. As officers of the Court, lawyers have a duty to be proactive in making constructive suggestions for the improvement of the administration of justice in Malaysia.

It is hereby resolved:-

A. That the Malaysian Bar expresses concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts.

B. That the Bar Council be proactive and work towards bringing about reforms in the administration of justice in the lower courts in Malaysia, having special regard to the :-

(a) qualification of Magistrates and Sessions Court Judges;

(b) introduction of Mechanisms or Safeguards to ensure greater independence of Magistrates, Sessions Court Judges and other judicial officers; and

(c) the necessity of separating the Judicial Services and the Legal Services.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Follow-up Action:

The Bar Council has set up two new Committees, namely; the Court Liaison Committee and the Administration of Justice (Judiciary) Committee to look into the issues raised by the Resolution.

Motion 5:

Whereas:

1. When a person is arrested in Malaysia, he can be detained by the police for a maximum period of not more than 15 days if the police utilize the powers pursuant to section 117 of the Criminal Procedure Code.

2. In Malaysia, there is no right to a phone call. The suspect cannot inform his lawyer, his family, friends and employer of the fact of his arrest and detention.

3. The constitutionally guaranteed right of access to a lawyer may be denied, even though the words used in Article 5(3) Federal Constitution is “Where a person is arrested he …SHALL be allowed to consult and be defended by a legal practitioner of his choice.”

4. Access to the lawyer is a right that should be available from the point of arrest. When a suspect is brought before the Magistrate pursuant to Section 117 Criminal Procedure Code and when the suspect is charged in court, he/she has the right to be represented by a lawyer.

5. The police do NOT have a duty in law to inform the lawyer: (a) whether the suspect will be charged in court OR whether the police are applying for further detention to complete their investigations. If the latter be the case, the police have no duty in law to inform the exact time when the suspect will be brought before the Magistrate; and the identity of the said Magistrate before whom the suspect will be brought for the section 117 application.

It is hereby resolved:-

A. That the Malaysian Bar expresses concern over the denial of the fundamental liberty guaranteed by Article 5(3) of the Federal Constitution to a majority of the suspects arrested and detained in the police lock-ups.

B. That the Malaysian Bar calls on the Malaysian Government to ensure that the right of access to a lawyer upon arrest and the right to be represented by a lawyer, especially during section 117 applications, be recognised and respected by the police and all concerned.

C. That the Bar Council does whatsoever necessary to ensure that the RIGHT TO ONE PHONE CALL, at the very least, be accorded to a suspect when arrested.

D. That the Bar Council does whatsoever necessary to ensure that the police is vested with the duty in law to inform lawyers of the detained suspect as to whether they are opting for an application for further detention pursuant to section 117 Criminal Procedure Code, and if so, at what time the suspect will be brought before a Magistrate and which Magistrate will be hearing the said application so as to give full effect to the right to a lawyer upon arrest.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Follow-up Action:

The Office Bearers and the Executive Director on behalf of the Bar Council held a meeting with the Inspector General of Police, Tan Sri Norian Mai, on 16th May 2000 and his officers at the Police Headquarters. Several issues of common interest were discussed including the right to representation. The fullest cooperation was agreed to.

Motion 6:

Whereas the objects & powers of the Malaysian Bar inter alia shall be:

1. to uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear or favour pursuant to S42(1)(a) of the Legal Profession Act, 1976 and

2. to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia pursuant to S42(1)(e) of the Legal Profession Act, 1976.

Whereas the specific powers of the Bar Council shall, inter alia, be:

1. to represent members of the Malaysian Bar or any section thereof or any particular member in any manner which may be necessary or expedient pursuant to S57(e) of the Legal Profession Act.

Whereas recently, two members of the Malaysian Bar were cited for contempt of court in the High Court in Kuala Lumpur and

Whereas in both these cases, the office bearers of the Bar Council were not allowed by the Court to hold a Watching Brief on behalf of the Bar Council and the Malaysian Bar.

Now It Is Hereby Resolved that the Malaysian Bar calls upon the Government to amend the Legal Profession Act, 1976 to give the Bar Council a specific statutory right to hold a Watching Brief on behalf of itself and the Malaysian Bar in Court to enable the Bar Council to perform its statutory duties set out in S42 and S57 of the Legal Profession Act, 1976.

Proposer: Mah Weng Kwai

The Motion was withdrawn.

Motion 7:

This House notes that from the period 1st January 1999 to 31st December 1999 the Discipline Fund accounts reflect that the total income for the aforesaid period is RM1,554,224.00 and total expenditure is RM710,797.00 and the surplus for that year is RM843,427.00. The total accumulated fund as at 31st December 1999 is RM4,416,806.00 and if the annual contribution to the Discipline Fund per lawyer remains at RM120 per annum surplus will increase by at least RM840,000.00 per annum.

This House therefore resolves that the Bar Council takes all steps within its power to secure a reduction of the subscription to the Discipline Fund to a sum of not more than RM50.00 per annum.

Proposer: Ms K. Chandra

Resolution:

The Motion was unanimously carried.

Follow-up Action:

The Office Bearers together with the Executive Director paid a courtesy call on the Chief Justice, The Chief Judge Malaya and the Chief Registrar on behalf of the Bar Council on 16th January 2001. Amongst the various matters raised was the need to reduce the levy on the Discipline Fund which had an accumulated amount of more than five (5) million ringgit.