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Number of Members present: 2,003
Motion 1:
WHEREAS the members of the Bar are considerably concerned over the steep increases in the premiums charged in recent years for Professional Indemnity Insurance for practising lawyers
IT IS HEREBY RESOLVED that the Bar Council undertake a complete review of the entire current arrangement with regard to Professional Indemnity Insurance for practising lawyers including the examination of all options available with the assistance of an actuarial consultant if necessary with a view to providing for all members of the Bar a Professional Indemnity Insurance which is procedurally transparent as well as with premiums whose levels are fair and reasonable and whose structure bears proper justification.
Proposer: Rajasingam a/l Murugasu
Six (6) Seconders
Resolution:
The Motion, as amended, was unanimously adopted.
Motion 2:
1. WHEREAS at the last Annual General Meeting held on 17 March 2001, it was suggested that a Referendum be conducted among members in respect of the No Discount Rule under the Solicitors’ Remuneration Order 1991 (SRO 1991).
2. A Referendum was duly held between the months of June to August 2001.
3. An overwhelming number of members who responded to the Referendum had voted in favour of allowing members the discretion to give discounts on the scale fees under the SRO 1991.
NOW IT IS HEREBY RESOLVED that:
A. The Bar Council do set up a Special Committee to review and propose amendments to SRO 1991 taking into account the result of the Referendum including the right of members to give discounts.
B. The Bar Council do request for the Solicitors’ Costs Committee to be convened to discuss and approve the relevant amendments to the SRO 1991 as provided for by Section 113 of the Legal Profession Act 1976.
Proposer: Louis Edward Van Buerle
Seconders: R Rajasingam, Tan Swee Cheng, Habib Rahman bin Seeni Mohideen
Resolution:
The Motion, as amended, was unanimously carried.
Motion 3:
Increase Scale Fees and Other Amendments to the Solicitors’ Remuneration Order 1991
WHEREAS
1. Solicitors’ Remuneration Order provides 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 RM 100,000 1%
For the next RM4,900,000 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 1966 for the transfer of property valued at RM100,000 or below, then the following rates shall apply, that is, where the property is less than RM30,000, the Vendor’s Solicitor shall charge RM120 and the Purchaser’s Solicitor can charge RM120, and where the consideration (or purchase price is more than RM30,000 but less than RM100,000, 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 and 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 is acting for the best interests of its client and would want to ensure that what is finally contained in the Sale and Purchase Agreement protects its clients’ 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 Purchaser;
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 the 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 scale fees should be increased to at least 3% or 5% of the total consideration of the said property for the first RM100,000 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 should be dealt with, where it is proposed that this figure of RM100,000 be deleted and the same 25% discount of the scale fees be applicable for all properties that fall within that category irrespective of consideration sum;
9. When the scale fees are low, as they are today, it means that 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 institution, and hence it is still open for the Borrower to insist on the inclusion 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 Agreements;
12. Rule 2 of the Rules under the First Schedule provides that the 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 is also the Financier’s Solicitor with regard to the same property, it would be a clear breach of the Legal Profession (Practice & 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 the 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 interests 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?
14. This Motion was withdrawn by the Proposers at the 2001 AGM in the belief that the Bar Council will be seeking to bring about the necessary and long awaited increase in scale fees BUT alas nothing has been done to date.
IT IS HEREBY RESOLVED:
1. That the Malaysian Bar acts to ensure an amendment to the Solicitors’ Remuneration Order 1991 to increase the scale fees in all areas, and in particular:
a) the First Schedule with regard to sale and transfer to at least 5% of the consideration of property for the first RM100,000 and thereafter to at least 2.5%;
b) the Fourth Schedule with regard to loan transaction to at least 5% for the first RM100,000 and thereafter to at least 2.5%;
c) the First Schedule with regard to the proviso that deals with transaction where a standard Sale and Purchase Agreement as provided by the Housing Developers’ (Control & Licensing) Act 1966 etc that provides presently that property between RM30,000 and RM100,000 be applicable for all property above RM30,000;
2. That the Malaysian Bar acts to ensure an amendment to the Solicitors’ Remuneration Order 1991 to delete the proviso to the Fourth Schedule noting that there is no standard Loan Agreement, as compared to the standard Sale and Purchase Agreement as provided by the Housing Developers’ (Control & Licensing) Act 1966;
3. That the Malaysian Bar develop and implement a legal education programme 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 & Etiquette) Rules 1978;
4. That the Malaysian Bar does all that is necessary to realise the intention of the above Resolutions including the drafting of an amending Bill and forwarding these Resolutions to the relevant bodies including the respective Ministers concerned and members of the legislative bodies.
Proposer: Charles Hector
Seconder: Amin Hafiz
The Motion was withdrawn.
Motion 4:
Return the Independence of Malaysian Bar to Choose Their Own Leaders and to Conduct Their Affairs – Remove the ‘Muzzles’ in the LPA
WHEREAS
1. In October 1977, in response to the Government introducing the Essential Security Cases (Amendment) Regulations 1975 (‘ESCAR’), the Malaysian Bar passed a Resolution at an Extraordinary General Meeting criticising the ESCAR as laws that ‘were manifestly unfair and unjust as to offend the conscience of all good men’ and also advised its members not to appear for accused tried under the laws in protest of the same on the premise that an accused under ESCAR would be denied a fair trial notwithstanding the provision for presence of counsel.
2. The government in response to the criticism of the Bar, introduced the Legal Profession (Amendment) Bill 1977 which allowed the Attorney-General to admit foreign lawyers, increased the quorum requirements of general meetings of the Bar to 1/5 of its membership and automatically disqualified certain classes of lawyers from holding office in the Bar Council, the State Bar Committees and their sub-committees.
3. The Bar Council after attempting and failing to dissuade the government from passing the Bill, in discussions held with the government and the then attorney-general, issued a press statement objecting to the amendments.
4. The amendments proposed by the bill came into force in early 1978. In response to the Legal Profession (Amendment) Act, at the Annual General Meeting of the Malaysian Bar in February 1978 the Malaysian Bar passed a resolution expressing regret at the government’s insistence in passing the Legal Profession (Amendment) Bill 1977, ‘without making proper enquiries as to its allegation that the Bar is being influenced by practitioners of less than seven years’ standing or who are politically motivated’, ‘with the clear and wholly unworthy intention of muzzling the Malaysian Bar’. The amendments were opposed, inter alia, on grounds that they imposed restrictions on the Bar to choose its own leaders and impeded the independence of the Bar.
5. By virtue of the passing of the Legal Profession (Amendment) Bill 1977, amongst others, Section 46A of the Legal Profession Act came into being disqualifying the following lawyers from holding office in the Bar Council:
(i) Persons who are less than seven years’ standing in the Bar;
(ii) Members of Parliament or State legislatures;
(iii) Persons who hold office in any trade union, political party or any organisation which has objectives or carries on activities which can be construed as political or declared so by the Attorney-General.
6. Section 56 of the Legal Profession Act 1976 expressly provides that the Bar Council is vested with the power to act subject to the Act or any rules made thereunder or ‘any resolution passed from time to time by the Malaysian Bar in general meeting’.
7. Notwithstanding the provisions of Section 56 of the Legal Profession Act and the clear and express stand taken by the Malaysian Bar in 1978, on 17 August 2001, a majority of the members of the present Bar Council decided to adopt part of the muzzle imposed by amendments to the LPA 1976, that is that ‘persons who hold office in any ... political party’ cannot hold office in the Bar Council. This was also the position reiterated by the Bar Council at the informal meeting with members held on 28 September 2001.
8. This action of the Bar Council, the elected leadership of the Malaysian Bar, which was done without consultation and/or reference to the general membership, was an act of total disrespect and disregard to the position taken by members through Resolution passed at general meetings of the Malaysian Bar.
9. The Bar Council has changed its position to be in accordance with the position adopted since 1978, it is most important that the Bar Council be reminded that it should not take positions contrary to any Resolutions passed at general meetings of the Malaysian Bar.
WHEREFORE, we, the Malaysian Bar:
1. Affirm the stand taken by the Malaysian Bar in 1978 in opposing the amendments introduced by the Legal Profession (Amendment) Bill 1977 as being unconstitutional that have the effect of constraining rights of members of the Malaysian Bar in electing its own leaders and impeding the independence of the Bar.
2. Direct the Bar Council to immediately take all necessary steps to call for and campaign for the repeal of Sections 46A and other amendments introduced by the Legal Profession (Amendment) Bill 1977 that which affects the independence of the Bar and hinder our ability to govern ourselves.
Proposer: Charles Hector
Seconder: Amin Hafiz
Resolution:
The Motion, as amended, was carried by a majority decision.
Motion 5:
WHEREAS
1. The Malaysian Bar has always adopted the position that all laws that allow for preventive detention including the Internal Security Act, should be repealed;
2. The Malaysian Bar has also taken the stand that all persons presently detained under these draconian preventive detention laws should be released immediately and unconditionally or put them on trial in open court;
3. There have been many arrests over the past few months under the Internal Security Act but sadly the Bar Council has failed to immediately and timeously protest the usage of the ISA as was always done in the past, thereby possibly giving the wrong impression that the Bar Council now condones the usage of this draconian legislation;
IT IS HEREBY RESOLVED
A. That we the Malaysian Bar reiterate our call that all laws that allow for preventive detention including but not limiting to the Internal Security Act, be repealed;
B. That we the Malaysian Bar call for the Government to immediately and unconditionally release all persons currently detained under these draconian preventive detention laws or put them on trial in open court;
C. That the Bar Council, as the leadership of the Malaysian Bar, do continuously and actively protest every instance of the usage of these preventive detention laws on any or all persons irrespective of justifications forwarded by the Government of the day.
D. That the Bar Council initiate and set up a Special Task Force to actively campaign for the repeal of these preventive detention laws, and for the release of victims of these draconian legislations.
Proposer: Charles Hector
Seconder: Amin Hafiz
Resolution:
The Motion, as amended, was unanimously carried.
Motion 6:
In furtherance to upholding the cause of justice without fear or favour NOW IT IS HEREBY RESOLVED
1. That the Malaysian Bar calls upon the Prime Minister and the Government of Malaysia to commence an immediate and urgent (and in any event within 30 days a Royal Commission of Inquiry with a view to determine and establish the cause(s) of the Kampung Medan tragedy, disburse fair and equitable compensation to the innocent victims thereto and to formulate recommendations/safeguards to avoid a recurrence of a similar tragedy in the future and for a White Paper to be presented in Parliament on this tragedy;
2. That the Malaysian Bar registers and records its disappointment with the Human Rights Commission of Malaysia (SUHAKAM) for failing to commence an urgent and immediate public inquiry into the Kampung Medan tragedy despite the very serious violation of Human Rights and gross disregard for the criminal justice system, justice and the rule of law;
3. That the Malaysian Bar calls upon the Human Rights Commission of Malaysia (SUHAKAM) to commence an immediate and urgent (and in any event within 30 days) public inquiry into the said Kampung Medan tragedy with a view to determining and establishing the cause(s) for the outburst of the sudden and unprovoked violence, propose fair and equitable compensation to the innocent victims thereto and to formulate recommendations/safeguards to avoid a recurrence of a similar tragedy in the future;
4. That the Malaysian Bar calls upon the Minister of Home Affairs and/or the Inspector General of Police to make public the findings of the Royal Malaysian Police Force in respect of the Kampung Medan tragedy;
5. That the Malaysian Bar calls upon the Government of Malaysia, the Royal Malaysian Police Force, the Attorney-General and the Chief Judge of the High Court of Malaya to give due regard to and to give effect to Articles 5 and 8 of the Federal Constitution, Section 3(3) of the Police Act 1967, Sections 337 and 339(1) of the Criminal Procedure Code, Sections 4 and 12 of the Human Rights Commission of Malaysia Act 1999 (Act 597) and for the judicious exercising of the inherent powers of the Courts;
6. That the Malaysian Bar censures and cautions the Inspector General of Police and the Royal Malaysian Police Force for their failure/omission/ neglect/refusal which resulted in the merciless killings and grievous bodily harm/injury on the innocent and unarmed peasants of Kampung Medan and the surrounding areas (without provocation);
7. The Malaysian Bar calls upon the Government of Malaysia to disburse appropriate, fair and equitable assistance/financial assistance/medical assistance/compensation to the said innocent Kampung Medan victims and their families on an urgent and immediate basis to alleviate/mitigate any further pain and human sufferings.
Proposer: P. Uthayakumar
Seconder: M. Manogar and eleven others
Resolution:
The Motion, as amended, was adopted.
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News/Notices 
Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
