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The 57th AGM of the Malaysian Bar held at the Renaissance
Hotel, Kuala Lumpur – Saturday, 23 March 2003
Number of Members present: 2,078
Motion 1
Proposal for Mandatory Continuing Legal Education
(a) WHEREAS the Continuing Legal Education Sub-Committee of the Bar Council (the
‘Committee’) has considered whether there is a need for the implementation of a
mandatory continuing legal education programme for the Malaysian Bar; and
(b) WHEREAS having considered international trends in favour
of the implementation of such programmes for the purpose of practitioners of law
and the contents of , and circumstances relevant to, the Malaysian Bar, the
Committee has come to the conclusion that the implementation of such a programme
would be to the benefit of the members of the Malaysian Bar and made a
recommendation to that effect to the Bar Council ; and
(c) WHEREAS the Bar Council has endorsed the said
recommendation of the Committee
IT IS HEREBY RESOLVED THAT :
(a) the Malaysian Bar recognises the need for the implementation of a mandatory
continuing legal education programme; and
(b) the Bar Council be authorized to take all reasonable steps towards the
implementation of such a programme including, if considered necessary;
(i) making attendance by members of the Malaysian Bar at such courses or
lectures or otherwise as are devised for the purpose of the programme
compulsory;
(ii) putting in place measures to enforce the mandatory nature of the programme;
(iii) imposing on members a subscription of no more than RM150 per member per
annum for the purpose of funding such a programme.
Proposer : Bar Council
Resolution:
The Motion was rejected.
Motion 2
Proposal that the Bar Council Study the Possibility of Allowing Members to
practise as Limited Companies
WHEREAS the premiums payable for professional indemnity insurance for practising
lawyers have been increasing due to claims for unlimited damages against members
of the Bar.
IT IS HEREBY RESOLVED that the Bar Council study the possibility of allowing
members of the Bar to practise as limited companies, whose liabilities are
limited to the paid up capital, or as limited partnerships, whose liabilities
are limited to the sum insured under the Professional Indemnity Insurance
policy, and to have the relevant laws amended accordingly.
Proposer : Bar Council
Resolution:
The motion was carried by a unanimous vote.
Motion 3
In relation to Right of an Arrested Person to Counsel and that the
Attorney-General and the Malaysian Government recognize the existing absolute
privilege of Advocates & Solicitors for all, any and every statement uttered in
the course of judicial proceedings
WHEREAS
1. The established and entrenched Principle and Rule of Law in Malaysia and the
Commonwealth is that an Advocate and Solicitor enjoys Absolute Privilege for all
statements made in the course of Judicial Proceedings.
2. Whereas pursuant to s. 42 (1) (a) of the Legal Profession Act 1976 every
Advocate and Solicitor 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.
3. It therefore follows that every Advocate and Solicitor has a duty to his
client to fearlessly raise every issue, advance every argument and ask every
question, however distasteful which he thinks will help his client’s case.
4. It is not merely a right but the statutory duty of an Advocate and Solicitor
to speak out fearlessly in a Court of Law pursuant to s. 42 of the Legal
Profession Act 1976.
5. The independence of Advocates and Solicitors 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 with regards to the independent immunity of Advocates and
Solicitors.
6. An Advocate and Solicitor 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 public interest to protect Advocates and Solicitors
who undertake legal work on a pro-bono basis.
7. There already exists sufficient safeguards against any abuses of Advocates
and Solicitors in the discharge of their duties in Court namely:
(a) That they could be cited for contempt of court by the Presiding
Magistrate/Judge.
(b) That they could be referred to the Disciplinary Board with a view that
disciplinary action be taken.
AND WHEREAS
8. Save and except for Mr Karpal Singh’s charge in the year 2000 which the
Attorney General subsequently withdrew, there exists no reported precedent where
an Advocate and Solicitor 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.
9. There now exist a real likelihood of danger that the floodgates would be open
where Advocates and Solicitors can be charged for this and for a variety of
other criminal offences for statements made in the course of judicial
proceedings.
AND WHEREAS
10. One youth dying in police custody every two weeks
Alarming statistics have been revealed in Parliament by the
Deputy Home Affairs Minister Datuk Chor Chee Heung on 14 October 2002 who
confirmed that in the year 2000 six persons died in police custody, the year
2001, 10 persons died in police custody and in the year 2002 from January 2002
to September 2002 alone a total of 18 persons died in police custody (NST, 15
October 2002) i.e. one person dying in police custody every two weeks. (This is
also an increase of 225% compared to the year 2000).
11. 1.3 persons shot dead by the police every week
Alarming statistics have also been revealed by the then
Deputy Home Affairs Minister Dato’ Kadir Sheikh Fadir in Parliament that over
the last 10 years a total of 635 people have been shot dead by the police (The
Star, 11 May 2002) (1.3 persons shot dead by the police every week).
AND WHEREAS
12. In the recent past P. Uthayakumar had been engaged by his clients and had
been attending to (on a pro bono basis) to three cases of death whilst in police
custody from 21 June 2002 to 4 August 2002 (three deaths in police custody
within a period of six weeks and another three other cases of shooting to death
by the Royal Malaysian Police Force from 24 August 2002 to 7 September 2002,
i.e. three persons being shot dead within a period of two weeks. All these six
cases alone are within a very short time period of about two and a half months,
i.e. from 21 June 2002 to 7 September 2002.
13. At all material times and having regard to the aforesaid alarming statistics
and in particular in the case of the inquest of S. Tharma Rajen (who died on 21
June 2002 whilst in police custody) P. Uthayakumar had been discharging his
duties pursuant to s. 42 of the Legal Profession Act 1976 on a very serious note
as the same involves an innocent life lost and lost forever.
14. In his Police Report No. Sepang 107/03, Mr P. Uthayakumar had amongst others
stated that he was arrested and detained based on a false police report lodged
against him by a police officer as follows:
‘The family of the deceased had all times blamed Chief Inspector Ponniah for the
deceased death. However, I had an open mind until the evidence of the said Chief
Inspector in Court on 3 September 2002. (First day of the Inquest when it was
revealed that this Chief Inspector embarked on a ‘serial remand’ in moving the
deceased to four different police stations within a time frame of about two and
a half months).
On the said 3 September 2002 and during the course of the said Inquest the said
Chief Inspector was continuously being evasive in his answers and he repeatedly
kept referring to the deceased as part of a ‘kumpulan samseng’ (gangster group)
when the deceased cannot defend himself (as he is already dead). This was
despite the Magistrate’s order not to refer to the deceased as a gangster. The
last straw when I lost my patience was when I asked him (as the Investigation
Officer) when was the first time he saw the deceased at the hospital. He gave a
date, which was just a few days before the deceased had died. When I asked him
about the condition of the deceased when he saw him, Ponniah was evasive and
said the deceased was sleeping. When I asked him how he knows the deceased was
sleeping, Ponniah’s reply was ‘saya tidak tahu samada dia tidur atau pura-pura
tidur’ (‘I do not know whether he was sleeping or pretending to be sleeping’).
This is despite the fact that a few days later the deceased had actually died.
Note: This is the kind of reply given by a Senior Police Officer in an Inquest.
When he was continuously being evasive in respect of his duties and
responsibilities with regard to the deceased I told him that I would report him
to Bukit Aman Police Headquarters once I have sight of the Court Notes of
Proceedings (which I have applied for and yet to receive).
There were some difficult moments when (on the family’s instructions) I
suggested that the Police were responsible for the murder of the deceased. The
Court was then adjourned for the day and on my way out I repeated that I was
serious with the complaint to Bukit Aman Police Headquarters and that he was not
to take me lightly. Ponniah shouted back at me that he would lodge a Police
Report against me. I told him to do just that and immediately thereafter left
the Court premises. As I was leaving, people in the public gallery consisting
mainly about 40 concerned citizens, family members and NGO’s (provoked by
Ponniah’s shouting) vented their anger at Ponniah and I do not know who said
exactly what. Based on these facts I plead that there is no case at all of
criminal intimidation or any other criminal offence against me and the said 40
members of the said public gallery can verify this’.
(Note: The s. 112 of the Criminal Procedure Code statements of these 40 members
of the public gallery, the deceased family’s three lawyers and others were never
taken by the police. ‘Selective Investigations’ were conducted when only the
statements of a ‘selected few’ were taken and used as the basis to charge Mr P.
Uthayakumar.)
15. On the continued hearing date of the Inquest on 5 September 2002, Mr P.
Uthayakumar and the other two lawyers for the family of the deceased on their
own accord apologised to the Court which was duly recorded in the Court minutes
as ‘Mr P. Uthayakumar – pohon maaf diatas kesulitan yang berlaku pada tarikh
bicara yang lalu – pohon direkodkan. Saya bersama Encik Rama dan Encik Johnson –
tidak dibayar tetapi atas dasar prinsip bahawa keadilan untuk rakyat harus
ditegakkan’. In fact, The Sun newspaper on 2 September 2002 had reported that
‘Coroner warns parties to keep their cool’. Despite this, criminal charges were
brought against Mr P. Uthayakumar in contravention of the criminal law principle
of the rule against double jeopardy (punishment twice for the same alleged
offence).
16. It is noted here that while the police are slow in investigating/completing
their investigations into police reports by the deceased’s families of alleged
police murder/alleged police gross negligence leading to the deaths of the
aforesaid deceased the police were however quick to respond to a police report
by a police officer against the families’ lawyer for alleged criminal
intimidation/contempt of court.
17. A total of at least 21 members of the Malaysian Bar came forward to
represent Mr P. Uthayakumar at the Sepang and Sentul Police stations pursuant to
Article 5(3) of the Federal Constitution but were unlawfully and unreasonably
denied access to their client.
NOW IT IS HEREBY RESOLVED:
A. That the Malaysian Bar hereby calls upon the Royal Malaysian Police Force to
respect the right of an arrested person to be allowed to consult and be defended
by a legal practitioner of his choice pursuant to Article 5(3) of the Federal
Constitution.
B. That the Malaysian Bar hereby resolves that the existing absolute privilege
of Advocates and Solicitors that 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, be upheld at all times;
C. That the Malaysian Bar hereby resolves that the Attorney-General and the
Malaysian Government accords due recognition, respect and regard to Advocates
and Solicitors discharging their duties in upholding the cause of justice
especially for statements uttered in the course of judicial proceedings pursuant
to s. 42(1) (a) of the Legal Profession Act 1976.
D. That the Malaysian Bar hereby resolves that the Attorney-General and the
Malaysian Government respects the right of an independent Bar and an independent
legal profession.
E. That the Malaysian Bar hereby resolves that the Attorney-General would
therefore be setting a dangerous and unfair precedent if he continues in the
prosecution of Advocates and Solicitors for statements uttered in the course of
judicial proceedings.
F. That the Malaysian Bar hereby resolves that the Attorney-General is hereby
urged to exercise his powers/discretion under Article 145(3) of the Federal
Constitution and s. 376(1) of the Criminal Procedure Code in accordance with and
having regard to the aforesaid established and entrenched legal principles and
the rule of law.
G. That the Malaysian Bar hereby resolves that the Attorney-General is hereby
urged to withdraw all criminal charges against P. Uthayakumar.
IT IS HEREBY ALSO RESOLVED THAT:
H. The Malaysian Bar condemns the unwarranted arrest and detention of Mr.
Uthayakumar and the subsequent arrests by the Police especially when the Police
are themselves the complainants.
I. The Malaysian Bar condemns the Royal Malaysian Police Force for this alarming
statistics of one death in police custody every two weeks and 1.3 persons being
shot dead by the police every week over the last 10 years.
J. The Malaysian Bar calls upon the Royal Malaysian Police Force to be
transparent, responsible and accountable in each and every case of death in
police custody and shooting to death by the Police Force.
K. The Malaysian Bar calls upon the Attorney-General to commence an immediate
and urgent Inquest (and in any event within two weeks) for each and every case
of death in police custody and death by police shooting.
L. That at each and every such Inquest the Bar Council adopts a policy and holds
watching brief pursuant to s. 42 of the Legal Profession Act 1976.
M. The Malaysian Bar calls upon the Chief Justice to instruct all presiding
judicial officers/coroners that in all such Inquests the presiding judicial
officers/coroners should accord Advocates and Solicitors their right to
discharge their duties pursuant to s. 42 of the Legal Profession Act 1976 and to
be able to fully represent their clients’ interest and in assisting the
Magistrate holding an Inquiry in inquiring when, where, how and after what
manner the deceased came by his death and also whether any person is criminally
concerned in the cause of such death pursuant to s. 337 of the Criminal
Procedure Code.
Proposer: M. Manogar
Seconder: K.A. Karpaya
Resolution:
The Motion, as amended, was carried by a unanimous vote.
Motion 4
To establish a Sports Fund
WHEREAS it is in the interest of members of the Malaysian Bar to increase the
number of supporting activities organized by the Bar Council to foster closer
relations between members of the bar and with members of other professional
organizations and to ensure that sufficient funds are available for this
purpose.
IT IS HEREBY RESOLVED that the Malaysian Bar establish a Sports Fund whereby
each member of the Bar will pay an annual subscription of RM10 to the Fund at
the time of application for the Sijil Annual.
Proposer: Bar Council
Resolution:
The Motion was unanimously carried.
Motion 5 – Rights of an Arrested Person should be recognised and given full
effect
WHEREAS
A. The Malaysian Bar has always adopted the position that
persons arrested shall be accorded the rights as guaranteed under the Federal
Constitution.
B. The Malaysian Bar has also adopted the call for the right
to ONE phone call to be granted to all persons arrested.
C. The Malaysian Bar has also been strong in reiterating that
persons arrested shall be given immediate right of access to a lawyer.
D. Article 5(3) provides that "Where a person is arrested he
shall be informed as soon as may be of the grounds of the arrest and shall be
allowed to consult and be defended by a legal practitioner of his choice."
Whilst Article 5( 4) provides that "Where a person is arrested and not released
he shall without reasonable delay, and in any case within twenty four hours
(excluding the time of necessary journey) be produced before a magistrate and
shall not be further detained in custody without the magistrate's authority. "
E. The Malaysian Human Rights Commission (SUHAKAM) in its
Report on Rights of Those Arrested and Detained (Hak Tahanan Reman) dated
December 2001, amongst others, recommends that the person arrested should be
given right of access to a lawyer as soon as he is arrested by the police. The
Report also recommends many other rights be given to the arrested person and
also makes recommendations for the improved conditions of detention. (A copy of
the said Report is attached).
HOWEVER, IT IS SADLY NOTED THAT:-
(a) Practice Direction of the Chief Justice Bil 3/2003, which
became effective on 2 January 2003 threatens to wither away some of the now
existing rights of the arrested person, that is being the right to consult and
be defended by a legal practitioner of his choice when the arrested is brought
before the Magistrate within 24 hours for an application by the police for a
remand order under section 117 of the Criminal Procedure Code.
(b) Item 2(iii) of the said Practice Direction states that if
the police are unable to discharge the burden of proving the arrested person's
right to be represented by a lawyer during a remand hearing would interfere with
police investigations, then the right of the arrested person to a lawyer will be
denied. From the arrangement of words in the said Practice Direction, it seems
that even during the period the police are called to discharge this burden of
proof, the arrested person will not be represented by a lawyer. Without a
lawyer, the arrested person will not be able to make any submissions in reply to
the police's application to deprive him/her of the constitutionally guaranteed
right to consult and be defended by a lawyer as soon as possible.
(c) Item 2(iii) of the said Practice Direction further states
that the arrested person will be asked whether he wants to be represented by a
lawyer or not in Malaysia, a person arrested has NO right to one phone call, and
NO right of access to family, friends or lawyers after he is arrested, This
would mean that the said arrested person would have no way of knowing whether
his family or friends have already retained a lawyer or not for him. Hence, when
the question is asked as to whether he wishes to be represented by a lawyer, in
ignorance he will only say that he does not want to be represented by a lawyer.
Lawyers retained by family and friends of the arrested person, and or from the
Bar Council Legal Aid Centres must be given immediate access to the arrested
person.
(d) Item 2(iii) (a) also states that if the accused person
elects to be represented by a lawyer, then the magistrate should give a short
remand order for the arrested person to be given an opportunity to retain a
lawyer. The words "short remand" is dangerously not defined, and this could mean
1, 3 days or even more. From the arrangement of the items in the said Practice
Direction, this "short remand" order is to be given without any considerations
to the other provisions in law governing an application for remand by the police
for the purposes of completing police investigations.
(e) Those Practice Direction, which is well intended to
ensure the increased adherence to the requirements of section 117 Criminal
Procedure Code during remand applications throughout Malaysia, however threatens
the further withering of the constitutionally guaranteed rights as provided in
Art. 5(3) and Art. 5(4) of the Federal Constitution.
IT IS HEREBY RESOLVED:-
1. That the Malaysian Bar reiterate our call that all arrested persons should be
accorded the rights guaranteed under Article 5(3) and 5(4) of the Federal
Constitution and all that is necessary be done to give full effect to these
rights.
2. That we, the Malaysian Bar call on the Chief Justice to recall Practice
Direction of the Chief Justice Bil 3/2003, and do the necessary amendments to
ensure that the rights of the rights of the arrested person to consult and be
represented by a lawyer during remand proceedings be guaranteed and given full
effect when the arrested person is brought before the magistrate for a remand
application.
3. That we, the Malaysian Bar support the recommendations of the Malaysian Human
Rights Commission (SUHAKAM) in its Report on Rights of Those Arrested and
Detained (Hak Tahanan Reman) dated December 2001 that will ensure human rights
for all arrested persons.
Proposer: Charles Hector
The motion was withdrawn.
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