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Number of Members present: 2,082

Motion 1:

To consider Mr Justice Dato’ Dr Kamalanathan Ratnam’s suggestion that all proceedings between K Raja Segaran and the Malaysian Bar be amicably settled and if deemed fit to resolve accordingly and to authorise the Bar Council and its Solicitors to take all necessary action in connection therewith and in this connection to consider all related matters.

Proposer: Bar Council

Resolution:

It was the unanimous decision of the House to reject the olive branch.

Motion 2:

To consider and if approved to pass the following Resolution on Subscriptions:-

WHEREAS the Bar Council has exercised its powers under Sections 46(1) and (2) of the Legal Profession Act 1976 to divide members into two classes and to fix different amounts as annual subscription for each class as follows:-

Class A: All members who have attended and duly signed the Attendance Sheet at any one or more of the General Meetings of the Malaysian Bar scheduled between 18th March 2000 and the end of March 2001 including any meeting aborted or postponed because of lack of quorum.

Class B: All other members

Proposed Subscription

Class A: RM650 (i.e. no change)
Class B:RM700

AND WHEREAS the rationale for such exercise of its powers by the Bar Council is that: -

Members should take an active interest in the affairs of the Bar and participate in General Meetings of the Bar.

General Meetings of the Bar are extremely costly.

Members can choose to stay away from a General Meeting and pay a higher subscription to offset the cost of the adjourned meeting and/or their own travelling and accommodation costs.

NOW IT IS HEREBY RESOLVED pursuant to Section 46(4) of the Legal Profession Act 1976 that the total of the subscriptions payable under Section 46(1), the levies payable under Section 46(3) and the annual contribution payable under Section 80 shall henceforth be:-

Class A: RM650 (i.e. no change)
Class B: RM1,000 (increase of RM350).

Proposer: Bar Council

The Motion was withdrawn.

Motion 3:

1. TO RESOLVE THAT the Malaysian Bar discontinues financing the following project which does not benefit members of the Bar.

a) Legal Aid Centres

Proposer: Mr A. Kanesalingam
Seconder: Mr Ragunathan

2. TO RESOLVE THAT the Malaysian Bar discontinues expending time and expense on the following enterprise which is not on the whole of benefit to lawyers and not amongst the objects for which the Malaysian Bar was established.

b) The Malaysian Mediation Centre

Proposer: Mr A. Kanesalingam

3. TO RESOLVE THAT during the election of candidates to serve in the Bar Council the proposer give particulars in not more than half A4 size of the candidate proposed to serve in the Bar Council and this write-up of each candidate be sent to each member by the secretary together with the ballot paper at the time of elections without any other particulars of the candidate.

Proposer: Mr A. Kanesalingam
Seconder: Mr Magavin

4. TO RESOLVE THAT the Bar Council apply for the approval of the Attorney-General for a ruling that:-

i) Advocates and Solicitors be prohibited from paying to their clerk or any other para legal person either an entertainment allowance or any other payment disproportionate to the specific assignment given;

ii) An Advocate and Solicitor who is a proprietor or a partner of a firm and who either acquiesces in or approves the payment to a clerk or any other para legal person either an entertainment allowance or any other payment disproportionate to the specific assignment given shall be liable to disciplinary action including a liability to be struck of the rolls. (As amended)

Proposer: A. Kanesalingam
Seconder: Mr S. Gill

Resolution:

1) Legal Aid Centres

The Motion was defeated.

2) The Malaysian Mediation Centre

The Motion lapsed for want of a seconder.

3) Brief write up of election candidates to be included with ballot papers.

The Motion was carried with 144 votes for and 42 against.

Follow-up Action:

The balloting exercise to elect the Bar Council members for 2001/2002 was carried out in accordance with the Resolution passed.

4) Ruling prohibiting payment of entertainment allowance or any other payment to clerk or
any para legal person disproportionate to the specific assignment given on penalty of being struck off the Roll.

The Motion was defeated.

Motion 4:

Increase Scale Fees and Other Amendments to the Solicitors’ Remuneration Order 1991

WHEREAS:

1. Solicitors’ Remuneration Order 1991 provide for the Scale Fees for Sale and Transfer of Property wherein the said fees are as follows for an Agreement not concerning a developer:

Value of Property Scale Fees

For the first RM100,000.00 1%
For the next RM4,900,000.00 0.50%
Thereafter 0.25%

2. Solicitors’ Remuneration Order further provides that where a standard Sale and Purchase Agreement as provided under the Housing Developers (Control and Licensing) Act 1996 for the transfer of property is valued at RM100,000.00 or below, then the following rates shall apply, that is where the property value is less than RM20,000.00, the Vendor’s Solicitor shall charge RM120.00 and the Purchaser’s Solicitor can charge RM120.00, and where the consideration or purchase price is more than RM30,000.00 but less than RM100,000.00 then “cost of drawing up the agreement of sale to completion” shall be scale fees less 25% (25% Discount). There is however no provisions for property above RM100,000.00 hence it is submitted that the normal scale fees apply;

3. The work involved in a normal Sale and Purchase Agreement is considerable and involves numerous exchanges of Draft Agreements between the Purchaser’s Solicitor and the Vendor’s Solicitor as each party are acting for the best interest of their client and would want to ensure that what is finally contained in the Sale and Purchase Agreement protects their client’s rights.

4. The duty of a Purchaser’s Solicitor and/or the Vendor’s Solicitor is from the preparation of the Sale and Purchase Agreement until the completion of the sale or the transfer of the property to the name of the Vendor.

5. The professional rate of the Real Estate Agent has increased from 2% of the Purchase Price to 3% of the Purchase Price. In the event of an aborted sale by the Purchaser, the real estate agent retains 50% of the earnest deposit (now 3% whilst before 2%) and the Vendor gets the remaining 50%. Note that full payment is due and payable upon the execution of the Sale and Purchase Agreement, and not completion of the transfer.

6. With regard to the amount of work done by a Solicitor for the Purchaser or the Vendor, it is submitted that the complexity of the work is most definitely higher than that of a Real Estate Agent. Similarly, the time involved where usually from the date of the Sale and Purchase Agreement to the transfer of property it may take between 3 to 6 months, or even more.

7. Solicitors are professionals and their value and professional work should be given due recognition, and at the present rates, taking into consideration the increasing cost of labour and materials, and also the inflation rates, the scaled fees should be increased to at least 3% or 5% of the total consideration of the said property for the first RM100,000.00 and thereafter half the percentage, being 1.5% or 2.5%.

8. Realising also for property that fall within the proviso of the First Schedule, whereby it is required by law that a Standard Sale and Purchase Agreement be used, the lacuna with regard to property above RM100,000.00 should be dealt with, where it is proposed that this figure of RM100,000.00 be deleted and the same 25% discount of the scaled fees be applicable for all properties that fall within that category irrespective of consideration sum;

9. When scale fees are low, as they are today it means that the law firms will have to resort to bulk work to survive, and that means that professional quality may be compromised, hence there will also be an erosion in the professional standards of the profession.

10. The practice of giving further discounts is contrary to Rule 1 of the Rules under the First Schedule, and this must be adhered to strictly by all solicitors. This is also similar to Rule 1 of the Rules of the Fourth Schedule which deals with Loan Transactions.

11. With reference to the Fourth Schedule, the proviso should be deleted until or unless Parliament in its wisdom comes out with a standard Form with regard to Property Loans. At present each and every loan transaction agreement is dependent on the particular financial institutions, and hence it is still open for the Borrower to insist on the inclusions of certain terms/clauses that will protect his/her rights better. One example of such borrower’s rights that should be protected in Loan Transactions is, the right of claiming for late delivery charges and/or breaches of the Sale and Purchase Agreement – this is needed because in some agreements the Borrower assigns all his rights in the Sale and Purchase Agreement to the Financial Institution, and creates unnecessary difficulty or makes it totally impossible for the Purchaser to enforce his rights in Sale and Purchase Agreement.

12. Rule 2 of the Rules under the First Schedule provides that solicitor acting for the Purchaser may also act for his client in the loan transaction. Note that this clearly means that the solicitor can be the Borrower’s Solicitor only and not the Financier’s Solicitor. When a Purchaser’s Solicitor also is the Financier’s Solicitor with regard the same property, even with the consent of the Purchaser/Borrower, it would be a clear breach of Legal Profession (Practice and Etiquette) Rules 1978. A Loan Transaction is an agreement between two parties, and it will be most difficult or professionally impossible for the same solicitor to ensure both the Purchaser/Borrower’s and the Financier’s rights are protected equally.

13. Likewise, it will also be impossible for the Purchaser’s Solicitor to act for a Borrower in a loan transaction involving a Financial Institution where he/she is on the said Institution’s Panel, even if the solicitor acting as Financier’s Solicitor in that particular transaction is a different solicitor. By being a member of the said Financial Institution’s panel, the said solicitor has to protect the best interest of the said Financial Institution and in many cases might have even given an undertaking to do so – thus it becomes impossible for him professionally to act against his “client” (the Financial Institution) while acting for another of his “client” (the Purchaser/Borrower). Whose best interest will he protect?

IT IS HEREBY RESOLVED:-

1. That the Malaysian Bar acts to ensure an amendment of the Solicitors’ Remuneration Order 1991, to increase the scale fees in all areas, and in particular:-

(a) the First Schedule with regard Sale and Transfer to at least 5% of the consideration of Property for the 1st RM100,000.00 and thereafter to at least 2.5%;

(b) the Fourth Schedule with regard to Loan Transactions to at least 5% for the 1st RM100,000.00 and thereafter to at least 2.5%;

(c) The First Schedule, with regard the proviso that deals with transaction where a standard Sale and Purchase Agreement as provided by the Housing Developers (Control and Licensing) Act 1996 etc, that provides presently that property between RM30,000.00 and RM100,000.00 that allow for 25% discount of the scale fees be deleted, and that this discount be applicable for all property above RM30,000.00;

2. That the Malaysian Bar acts to ensure an amendment of the Solicitors’ Remuneration Order 1991, to delete the Proviso to the Fourth Schedule noting that there is no standard Loan Agreements, as compared to the standard Sale and Purchase Agreement as provided by the Housing Developers (Control and Licensing) Act 1966;

3. That the Malaysian Bar develop and implement a legal education program among all lawyers, as to the requirements of the Solicitors’ Remuneration Order 1991, noting the fact that many solicitors have unconsciously in the past acted in breach of the said Rules and also the Legal Profession (Practice and Etiquette) Rules 1978;

4. That the Malaysian Bar do all that is necessary to realise the intention of the above resolutions including the drafting of an amending Bill and forwarding this resolution to the relevant bodies including the respective Ministers concerned and members of the Legislative bodies.

Proposer: En. Charles Hector
Seconder: En. Amin Hafiz

The Motion was withdrawn.

Motion 5:

WHEREAS:

1. The Malaysian Bar has during its past Annual General Meetings and/or Extraordinary General Meetings passed many resolutions of great importance, amongst others

a) The call for the recognition of the rights to ONE PHONE CALL to all suspects arrested by the police in Malaysia;

b) The call for the recognition of the right of access to lawyer upon arrest;

c) The call that Magistrates, Sessions Court Judges and Senior Assistant Registrars be
made more independent, by amongst others removing them from being under the Judicial and Legal Services Commission;

c) The removal of the seven-year ruling in the Legal Profession Act 1976, that now prevents lawyers below seven years standing from even nominating and standing for elections in the Bar Council and/or the State Bar Committees, and also sitting as equal members of the various committees of the Bar Council and the State Bar Committees.

2. After these resolutions are considered and passed, unfortunately other than receiving minimum and edited coverage in media, it is noted that nothing seems to be done to publicise the said resolutions and/or take steps to give full effect to these resolutions of the Malaysian Bar.

3. There has also been a lack of reporting by the Bar Council, both past and present, as to the steps taken to give effect to these resolutions of past.

4. There is also a lack of documentation of these resolutions, hence leading to a lack of dissemination of the position and stance of the Malaysian Bar with regard to various issues of concern – the effect being that newer members of the Bar are left “blind” about the position of the Bar on these important issues of concern. The history, tradition and positions of the Bar should be proactively handed down to the newer members of the Bar.

5. The Malaysian Bar should be proactive in publicising all resolutions in full, especially those of national importance, in the mass media and if need by advertising. As part of the campaign, the Bar Council should also go to the people and disseminate these resolutions, if need be in the different popular languages of the nation.

6. The Malaysian Bar should also be proactive in forwarding relevant resolutions to all members of the legislative, judiciary and executive and not merely forwarding the same to certain individuals in their capacity of being the heads of these institutions. If need be, the Bar Council should also prepare and forward draft Bills, as was done for contempt, in an effort to realise the resolutions of the Malaysian Bar.

7. The members of the Malaysian Bar number about 10,000 and if tasks are distributed amongst a greater number, then it will be more effective. At present, it is most disappointing to note that many of the members of the Bar Council have assumed leadership roles in many different committees and sub-committees, and this practice should be stopped as we have more than enough resources in our Bar. A Bar Councillor at most should only head one committee, if at all – he can always be an ex-officio.

IT IS HEREBY RESOLVED:-

A. That the Bar Council immediately act on all past resolutions of the Malaysian Bar, whichever is still applicable and relevant by giving a detailed report as to what has been done since the said Resolutions were passed, and publishing the said report through a special report or through its newsletter within three (3) months;

B. That the Bar Council immediately take steps to realise or give effect to all the Resolutions of the Malaysian Bar, especially the doing away with the seven-year ruling, the abolishment of Detention Without Trial Laws, the recognition of the right to One Phone Call and access to a lawyer for all persons arrested, amongst others by the setting up of special task forces or rapid action teams for each and every resolution, who shall be empowered to come up with plans, implement these plans and do all that is necessary to give full effect to the resolutions of the Malaysian Bar, whereby the setting up of these task forces should be done within two (2) months; and

C. That the Bar Council immediately take steps to compile and publish all past resolutions of the Malaysian Bar, and thereafter distribute the same to all present and future members of the Bar.

Proposer: En. Charles Hector
Seconder: En. Amin Hafiz
Ms Gill

Resolution

The Motion was unanimously passed.

Follow-up Action:

The Motions and Resolutions from 1965 to date have been compiled together with details of the action taken by Bar Council on the Resolutions passed. The draft is pending approval by the Bar Council.

Motion 6:

Respect for each other and the bench rather than winning at any cost is fundamental to the practice of the legal profession. But, objections taken by lawyers in litigation often detracts from the sense of fairplay and the rapport between lawyers, once keenly felt, is dwindling. With bad feelings and distrust rampant among lawyers, the culture now is that ‘I will do unto you what you would unto me and I will do it first’.

Our appeal courts are bogged down by appeals against decisions on such ungentlemanly and trivial objections. Ideally the habit to raise silly objections by lawyers should be nipped in the bud at the courts of first instance with the bench refusing to sustain them. And then when they are not sustained, lawyers should not appeal, ideally. The converse is what seems to be happening.

We are a profession that is breaking down from within.

WE HEREBY PROPOSE THAT every lawyer of the Malaysian Bar once again afford respect and honour to the rest of us by fighting fair and honourably. Our function is to serve the interest of justice and not to win at any cost.

Proposer: Ms Anita Sharma
Seconder: Mr G. Balakrishnan

The Motion was withdrawn.

Motion 7:

The legal profession needs an overhaul. Becoming unacceptably self-serving and overly materialistic we are verging on losing our remaining dignity and self-respect. Integrity and good ethical practice must be utterly entrenched within every member of our profession. It must become our nature to act with the highest principles in mind and in our hearts. Once, ours was considered an honourable profession. We must regain our nobility.

WE HEREBY PROPOSE that the Malaysian Bar collectively and individually resolve that we shall put aside unhealthy self-interest and unrestrained competitiveness and strive to exercise full integrity and ethics in the service of our clients and our nation.

Proposer: Ms Anita Sharma
Seconder: Mr Nimal De Silva

The Motion was withdrawn.

Motion 8:

Section 46A(1)(a) of the Legal Profession Act, 1976 states as follows:-

(i) A person shall be disqualified for being a member of the Bar Council or a Bar Committee, or of any committee of the Bar Council or a Bar Committee –

(a) unless he is and has been an advocate and solicitor for a period of not less than seven years, or for periods which in the aggregate amount to not less than seven years;

We firmly believe that this provision is restrictive and disenfranchising close to two thirds of the members of the Malaysian Bar.

In line with the basic principles of democracy and equality, we believe that all members should be allowed to participate in the decision making process concerning the affairs of the Malaysian Bar.

To this end WE HEREBY RESOLVE THAT:

1. All State Bar Committees set up Young Lawyers Committees which shall be accountable to the State Bar Committees within 2 months hereof;

2. The State Bar Committees shall convene a meeting of Young Lawyers in their respective States and the Young Lawyers present shall elect a Chairperson, Secretary and five Committee Members;

3. The Chairperson and Secretary shall be invited as observers to attend all State Bar Committee meetings;

4. The election of subsequent Young Lawyers Committees shall be carried out at the AGM of each State Bar;

5. The State Bar Committees shall give due notice of this agenda at their respective State AGMs.

Proposer: Cik Surina bt Suhaimi
Seconder: Mr Tan Gian Ching and 87 joint seconders

Resolution:

The Motion was defeated with 30 votes for and 36 votes against.

Motion 9:

WHEREAS:

1. Article 5(1) of the Federal Constitution provides that “No person shall be deprived of his life or personal liberty save in accordance with the law”.

2. An alarming statistic has been reported that an average of 1.3 persons are shot dead by the police every week in Malaysia as follows:-

“Police can only open fire if their lives are in danger and to protect themselves, Deputy Home Minister Datuk Abdul Kadir Sheikh Fadzir said. He also said the police force had always taken steps to control the “use of power” by their personnel in order to reduce the number of shooting cases which could endanger the lives of innocent people. He said for the past 10 years, a total of 635 people were killed in which 355 were locals and 280 were foreigners” (The Star, May 11, 1999)”.

3. The most celebrated authority in Criminal Law as per Viscount Sankey in DPP v Woolmington (1935) is that it has been a long established Principle of Criminal Law that an accused person is presumed innocent until proven guilty.

4. There is no law in the country which permits/allows the police to shoot dead an individual and yet almost none of the members of the Police Force have been charged in a Court of Law for these unlawful shooting to death cases.

5. The due process of law is for the police to arrest the accused person and charge him in a Court of Law and it is for the Courts to find the accused guilty and accordingly sentence him.

6. Police incompetence and/or inefficiency cannot and should not be at the expense of the life and limb of an individual.

7. It is the innate right of each and every individual to his/her life and it is illegal, unlawful, ruthless and brutal for the police to act unilaterally, high-handedly, arbitrarily and to abuse their powers by shooting dead individuals. The police cannot and should not assume the singular role of Judge, Jury and Executioner.

8. It is understood that Public Inquiries as required by law and pursuant to the Criminal Procedure Code to establish the facts, circumstances and cause of death are not held in a majority of these cases.

9. In recent times despite numerous protests by the Bar Council and other organisations, members of the Royal Malaysian Police Force does[sic] not seem to be too concerned and have in fact continuously been “trigger happy” leading to a public perception that there is an “unofficial shoot to kill policy” by the Police top brass.

10. The members of the General Public expect protection from the Police Force but do not expect to be shot dead by the Police without responsibility and/or accountability and/or transparency at all whatsoever.

In order to restore public confidence in the Police Force these illegal, unlawful, ruthless and brutal shootings must be avoided except in the most of the exceptional case if not put to an end all together completely.

11. The recent reported instances of police shooting is the shooting to death of a lady who is eight months pregnant and four (4) others in Balakong, Selangor on 2.10.1998, the shooting to death of the four people in Tumpat, Kelantan on 3.10.1998, the shooting to death of a Medical Doctor at the LRT station on 20.9.1999, the shooting to death of the Mental Patient in Kluang, Johor on 10.10.2000 and the shooting of a Mechanic in the eye (and blinded) on 6.10.2000.

12. In the months of November and December 2000 a total of 10 persons have been reported to have been shot dead by the Police Force (The Star 4.11.2000 – 2 persons, the Star 10.11.2000 – 2 persons, The Sun 14.12.2000 – 1 person, The Star 15.12.2000 – 1 person, and NST 19.12.2000 – 4 persons). This only goes to reaffirm the earlier alarming statistics of 1.3 persons being shot dead by the police every week has not improved since 1999.

13. It has also been reported that the other abuse of police powers are for causing deaths in Police Lock-ups, police brutality and assault while in police detention and on members of peaceful assemblies, unlawful detentions and other abuses of police powers.

Now IT IS HEREBY RESOLVED:-

1. That the Malaysian Bar views with grave concern, disapproves and condemns all the illegal, unlawful, ruthless and brutal shooting to death of individuals in Malaysia especially so at an alarming rate of 1.3 persons per week.

2. That the Inspector General of Police and the Royal Malaysian Police Force is hereby urged to with immediate effect stop these unlawful shooting to death of individuals and to abide by Article 5 of the Federal Constitution and the Rule of Law and to stop with immediate effect these merciless killings.

3. The Inspector General of Police is also hereby urged to issue Standing Orders within forty-eight (48) hours of each and every instance of such shooting directing the Police Force not to arbitrarily shoot individuals.

4. The Attorney-General is hereby urged to exercise her powers of prosecution pursuant to Section 376(1) of the Criminal Procedure Code and Article 145(3) of the Federal Constitution without fear or favour and prosecute each and every member of the police force (if need be) for murder of the said individuals shot dead by the police force.

5. The Attorney-General is also urged to use her powers as provided for under Section 339 of the Criminal Procedure Code, to direct the respective Magistrates to hold Inquiries into the cause of and the circumstances connected with any allegations of police brutality in the course of police investigations or any death while in police custody or in the course of police operations within two (2) weeks of such shooting incident.

6. The Chief Judge of the High Court of Malaya is urged to exercise his discretion/power to direct the respective Magistrate to hold Inquiries into the cause of and the circumstances of the death, as provided for under Section 337 of the Criminal Procedure Code within two (2) weeks of the shooting incident and to issue a current circular to that effect for each and every such case.

7. The Minister of Home Affairs is urged to take a serious view of this matter and to issue a directive to the Inspector General of Police, State Police Chiefs, the Officers in Charge of Police Districts and to all members of the Royal Malaysian Police Force not to arbitrarily shoot individuals in Malaysia.

Proposer: P. Uthayakumar
Seconder: A. Sivanesan

Resolution:

The Motion, as amended, was carried.