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Number of Members present : 599

Motion 1:

WHEREAS:

I. Presently, the remuneration of a solicitor in respect of business other than contentious business is governed by the Solicitors' Remuneration Order 1991 ("SRO 1991"). The SRO 1991 came into force on the 01/01/1992 and was subsequently amended in 1994 (P.U.(A) 80/1994) and in 2003 (P.U.(A) 50/2003). Pursuant to the SRO 1991, there shall be no discount unless expressly provided ("the no discount rule").

II. At the 57th Annual General Meeting of the Malaysian Bar held on 22/03/2003, it was decided that the report of a special committee appointed by the Bar Council to review and propose amendments to the SRO 1991 including the right of members to give discount ("the report of the SRO Special Committee") be referred to the incoming Conveyancing Practice Committee (“CPC”) to consider the issues again and to make fresh recommendations for the next AGM.

III. At its first meeting in April 2003, the Conveyancing Practice, Corporate and Banking Law Committee (“CPCBL” which replaced the CPC) formed the SRO Sub-Committee to consider the above issues and to make fresh recommendations.

IV. As only 678 members of the Bar responded to an earlier referendum on the No Discount Rule ("2001 Referendum"), the CPCBL agreed with the SRO Sub-Committee’s decision to seek the views of members again on these very important issues and hence a SRO Survey 2003 was conducted. An analysis of the SRO Survey 2003 is attached as Appendix 1 hereto.

V. Taking into consideration:

(a) the results of the 2001 Referendum;

(b) the Recommendations of the SRO Special Committee (a brief summary of which is set out in Appendix 2 hereto); and the results of the SRO Survey 2003;

IT IS HEREBY RESOLVED THAT:

1. The Bar Council take all necessary steps to cause the Solicitors Costs Committee to be convened pursuant to Section 113(2) of the Legal Profession Act 1976, as soon as possible, to make the following orders pertaining to remuneration of solicitors:

(A) That the rate of scale fees specified in the Schedules to the Solicitors' Remuneration Order 1991 [P.U.A (475/1991] be increased as follows:

FIRST SCHEUDLE

Sale and transfer.

Provided that in any transaction where a standard Sale and Purchase Agreement as provided under the Housing Development (Control and Licensing) Act 1966 or any subsidiary legislation made thereunder is applicable and the consideration for the transfer of the property is RM100,000 or below, then the following rates shall apply:

(a) Where the consideration is RM30,000 and below:

drawing agreement of sale to completion -

(b) Where the consideration is in excess of RM30,000 but not more than RM100,000:

drawing agreement of sale to completion -

SECOND SCHEDULE

No change as it was recently amended in 2003

THIRD SCHEDULE

Discharge of Charge/Deed of Reassignment.

If the Deed of Reassignment includes the Revocation of Power of Attorney, an extra RM100 shall be charged.

FOURTH SCHEDULE

Charges, Debentures and other Security Documents

Provided that in any transaction where a standard Sale and Purchase Agreement as provided under the Housing Development (Control and Licensing) Act 1966 or any subsidiary legislation made thereunder is applicable and the consideration for the transfer of the property as well as the loan sum is RM100,000 or below, then the following rates shall apply:

(a) Where the consideration as well as the loan sum is RM30,000 and below:

(b) Where the consideration as well as the loan sum is in excess of RM30,000 but not more than RM100,000:

FIFTH SCHEDULE

Preparing, filing or witnessing miscellaneous documents.

SIXTH SCHEDULE
No change

(B) That the Solicitors Costs Committee make such other incidental orders as recommended by the conveyancing practice committee of the Bar Council, which shall be necessary to give effect to the above changes to the SRO 1991.

2. That the Bar Council do take necessary and positive steps to enforce the compliance by all members of the Solicitors' Remuneration Order 1991, whether amended or otherwise.

Proposer : Andrew Wong

Resolution :

The Motion, as amended, was unanimously adopted.

Motion 2:

IT IS HEREBY RESOLVED as follows :-

REALISING that by reason of market competition, there exists the prevalent practice of ‘under-cutting’ amongst lawyers, and this is sad.

REALISING that lawyers must at all times stand as one and be very concerned about not de-valuing or under-valuing the professional services being rendered, and as such there is a definite urgency that the body of lawyers come to a common agreement to stand together as far as the value of professional services are concerned.

THEREFORE,

THE MALAYSIAN BAR HEREBY RESOLVES THAT the ‘No Discount Rule’ remains and that the Bar Council continues monitoring and taking action against any violators of this rule.

Proposer : Charles Hector
Seconder: Roland Engan

Resolution:

The Motion, as amended, was unanimously carried.

Motion 3:

WHEREAS at the lat Annual General Meeting held on 22nd March 2003, the report of the Special Committee for Review of the Solicitors’ Remuneration Order 1991 (SRO) was discussed and considered but a decision thereon was deferred.

WHEREAS the Bar Council conducted a survey in mid 2003 (SRO Survey 2003) to seek the views of members again on the remuneration of a solicitor in respect of business governed by the Solicitors’ Remuneration Order 1991 and whether solicitors are allowed to give discount on their fees.

Taking into consideration:
(a) the result of the 2001 Referendum;

(b) the recommendations contained in the report of the SRO Special Committee; and

(c) the result of the SRO Survey 2003;

IT IS HEREBY RESOLVED THAT:

The Bar Council take all necessary steps to cause the Solicitors’ Costs Committee to be formed and convened pursuant to Section 113(2) of the Legal Profession Act 1976, at the earliest possible time to consider and if approved, implement the following orders:-

a) that the rate of scale fees specified in the Schedules to the Solicitors’ Remuneration Order 1991 [P.U.A. (475/1991] be increased in accordance with recommendations to be made by the conveyancing practice committee of the Bar Council to the Solicitors’ Costs Committee; and

b) that a solicitor be allowed to give a discount on his fees at his sole discretion.

Proposer : Louis Edward Van Buerle
Seconder: Tan Swee Cheng

The Motion was not carried.

Motion 4:

Proposed Rules Governing the manner of convening Annual and General Meetings and that Procedures thereat

Proposer : P Suppiah

The Motion was rejected.

Motion 5:

Motion of no confidence and Motion on mandatory inquest against the Attorney General and Inspector General of Police Malaysia

WHEREAS: -

(A) Fundamental Liberties.

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. Article 8 of the Federal Constitution provides that ‘All citizens are entitled to the equal protection under the law’.

(B) Mandatory Inquiry under Criminal Procedure (CPC) Code By Magistrate.

3. Section 15 (3) of the CPC provides that nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

4. Section 334 of the CPC provides that when a person dies while in the custody of the police or in a mental hospital or prison, the officer who had the custody of such person or was in charge of such mental hospital or prison, as the case may be, shall forthwith give intimation of such death to the nearest Magistrate, and such Magistrate or some other Magistrate shall, in the case of death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death.

5. Section 337 of the CPC provides that a Magistrate holding an inquiry shall inquire 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.

6. Section 121 of the CPC provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.

Criminal Procedure Code

7. Section 128 (1) of the CPC provides that: -

(1) Subject to the provisions of this Code a Magistrate may take cognizance of an offence: -

(a) upon receiving a complaint as defined by this Code;

(b) upon his own knowledge or suspicion that such offence has been committed;

(c) whenever it appears to the Public Prosecutor that an offence has been committed and he, by warrant under his hand, requires a Magistrate to inquire into the same and such Magistrate receives the warrant;

(d) on any person being brought before him in custody without process accused of having committed an offence which such Magistrate has jurisdiction either to inquire or to try.

(C) Inherent Discretionary Powers of Chief Judge to order Inquiry.

8. The Inherent Discretionary Powers of the Chief Judge of the High Court Malaya (Ref: Recommendations by the Bar Council dated 10 March 1999 as contained in their Memorandum titled ‘Memorandum on Cases of Death by Shooting in the Course of Police Operations)’. The Chief Judge of the High Court of Malaya may exercise his discretion/power to direct the respective Magistrate to hold inquires into the cause of and the circumstances of the death, as provided for under Section 337 of the Criminal Procedure Code.

(D) Attorney General to direct Inquiry.

9. Section 339 of the CPC provides that the Public Prosecutor may at any time direct a Magistrate to hold an inquiry under this Chapter into the cause of, and the circumstances connected with any death such as is referred to in sections 329 and 334,and the Magistrate to whom such direction is given shall thereupon proceed to hold an inquiry and shall record his finding as to the cause of death and also as to any of the circumstances connected therewith with regard to which the Public Prosecutor may have directed him to make inquiry.

(E) Police Powers – abuses and failure.

10. Section 3(1) of the Police Act 1967 provides that “The Force shall subject to this Act be employed in and throughout Malaysia (including the territorial waters thereof) for the maintenance of law and order, the preservation of the peace and security of Malaysia, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence’.

11. Section 20 of the Police Act 1967 it shall be the duty of a Police Officer to carry out  The purposes mentioned in Section 3(3) and he may take such lawful measures and do such lawful acts as may be necessary in connection therewith, including: -

(a) apprehending all person whom he is by law authorized to apprehend.

(b) processing security intelligence.

(c) giving assistance in the protection of life and liberty.

(d) protecting public property from loss or injury.

12. Section 31 of the Police Act 1967 provides for the power to make orders to require persons to remain indoors (by a Commissioner or a Chief Police Officer).

(E) Bar Council’s Statutory Duties.

13. Section 42 (1) of the Legal Profession Act 1976 (LPA) provides that the purpose of
the Malaysian Bar shall be: -

(a) to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour;

(b) to represent, protect and assist members or of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia;

(F) 1.3 Persons shot dead by police every week.

14. Alarming statistics has been revealed in the Malaysian Parliament that an average of 1.3 persons are being shot dead by police every week in Malaysia as follow; ‘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 11 May 1999).

(G) One Person dying in Police Custody in every two (2) weeks.

15. In every two (2) weeks, one person is dying in police custody. This is based on The Deputy Home Affairs Minister Dato Chor Chee Heung’s Statement in Parliament that from January to September 2003 18 people have died in police custody (Malaysiakini 14/10/2003 and New Straits Times 15/10/2003).

(H) Kg. Medan killings of six (6) innocent people and grievous bodily injuries to over 100 others.

(K) Under mysterious circumstances six (6) innocent persons were killed and over one hundred (100) others were caused to suffer from grievous bodily injuries in the alleged “racial clashes” from 8/3/2001 to 23/3/2001 (15 days in a row) right under the eyes of the Royal Malaysian Police Force in the Kg. Medan racial attacks (not racial clashes) (and without provocation) and targeted on the innocent minority Malaysian Indian Community by a small group of armed criminals from outside Kg. Medan. Up to date (coming to three (3) years on 8/3/2004) the Government of Malaysia is yet to call for a Royal Commission of Inquiry and the Malaysian Human Rights Commission has refused to hold an Open Inquiry and the victims thereto have not been properly compensated (e.g only a RM 25,000.00 low cost house was given for victims who were killed that too by a political party and not the Government of Malaysia. The Royal Malaysia Police force failed / omitted / neglected / refused to urgently and immediately restore law and order and / or to protect the said minority Malaysian Indian Community in Kg. Medan and allowed the slashing and killings to go on for 15 days in a row.

Note:

1. A police report about this Kg. Medan atrocities and the Police inaction / failure to provide protection for the said minority Malaysian Indian Community has been lodged by a member of the Malaysian Bar against the then Inspector General of Police and three (3) other senior Police Officers but to date no action has been, taken let alone a Section 112 CPC Statement being taken.

2. The police took fifteen (15) days i.e from 1/3/2001 to 23/3/2001 to restore law and order when only a small group of armed criminals went on the rampage. However at the height of the Reformasi Demonstrations in Kuala Lumpur some 50,000 demonstrators could be successfully dispersed within five (5) hours and law and order restored.

AND WHEREAS: -

(I) Previous Resolution by the Malaysian Bar.

16. The Malaysian Bar recalls its Resolution vide Motion No 5 at the 53rd Annual  General Meeting of the Malaysia Bar on 20/3/1999 on the question of police shooting to death of suspects.

17. The Malaysian Bar recalls it’s Resolution vide Motion No 7 (A) (vii) at the 55th Annual General Meeting of the Malaysian Bar on 14/7/2001 amongst others also on the question of police shooting to death of suspects and mysterious deaths in police custody.

18. The Malaysian Bar recalls it’s resolution vide Motion No 5 (f) at the 56th Annual General Meeting on 23/3/2002 amongst others on the question of the innocent unarmed and law abiding minority members of the Malaysian Indian community being targeted and attacked (without provocation) by a small group of organized armed criminals from outside Kg. Medan (but labeled by the forces that be as “racial clashes”) and the Inspector General of Police being condemned for the said police failure / omission / neglect / refusal.

19. The Malaysian Bar recalls it’s resolution vide Motion No 8.3 at the 57th Annual General Meeting on 22/3/2003 amongst others on the defence of victims of police shooting to death and in police custody cases.

(J) Conclusion

The aforesaid incidences of shooting to death by the police and deaths in police custody which has been increasing at an alarming rate has now reached epidemic levels especially in a supposedly loving, caring and sharing society like ours. This is despite repeated protests and allegations by the victims’ families that the police are fabricating evidence / planting weapons to justify their killings / crime and / or the victims dying in police custody because of “natural causes’, perforated ulcer, pneumonia, tuberculosis etc. Thereafter the police painting the dead victims as “hard core criminals who deserve to be shot dead / die in custody” in the local press is in effect trial by media when all persons are presumed innocent until proven guilty by the courts. The police are in effect playing the roles of Judge, Jury, Prosecutor and Executioner and with the aforesaid latest update also as “doctors” as they now justify deaths in custody as “dying of natural cause”

Police reports have been lodged by the families of the deceased about the extremes of these police atrocities. The latest examples being pulling up the shirt of victims to close their face and gunning down the victims in cold blood (case of the 19 years old STPM student V.Vikines and two (2) others), arresting the victim, pulling out all his ten (10) finger nails and then shooting the victim dead (Nagandran – the 23 year old caddy who leaves behind a 20 year old widow who is four months pregnant and also a six month old daughter) and the case of the victim being beaten up with his hands being tied up to the ceiling, chilly padi being applied to the wound and throwing the victim into the Klang River after being killed (24 year old Vivashanu Pillai).

And whereas the Inspector General of Police has not taken the appropriate criminal action against the relevant police personnel and the Attorney General has omitted / failed / neglected in the discharge of his duties and / or did not act diligently and / or act in the general public interest and / or exercise / discharge his duties pursuant to Article 145 (3) of the Federal Constitution, Section 339 and 376 (1) of the CPC and by not ordering an Inquiry into the aforesaid cases of police shooting to death, deaths in police custody and the Kg. Medan killings and / or taking the appropriate criminal action against the relevant police personnel. Despite the aforesaid alarming statistics of death in police custody and death by police shooting cases and scores of written appeals calling for Inquiries / appropriate criminal action, the Attorney General is yet to call any Inquiry for death by police shooting cases in the last five (5) years and for the death in police custody cases only two (2) cases of Inquiries has been commenced for the year 2003 and the appropriate criminals action has not been instituted against the relevant police personnel giving the impression that the police are in effect “above the law”.

NOW IT IS HEREBY RESOLVED

1. That the Malaysia Bar resolves to call upon the Attorney General of Malaysia and the Inspector General of Police, Malaysia to investigate diligently and institute the appropriate Criminal Proceedings against the relevant police personnel and to commence an urgent and immediate Inquiry pursuant to Section 337 of the Criminal Procedure Code in respect of each and every case of mysterious deaths in police custody, shooting to death by the police, and other mysterious deaths from 1/1/2000 to the date hereof and also for the unexplained killings of the six (6) people who were killed in the Kg. Medan Tragedy.

2. That with effect from the date hereof the Bar Council issues an urgent and immediate Media Statement condemning / registering it’s protest with regards to each and every case of death in police custody, shooting to death by the police and other mysterious deaths that is reported in the local media and / or brought to its’ attention.

3. That with effect from the date hereof the Malaysia Bar writes to the Attorney General and the Chief Justice of Malaysia within forty-eight (48) hours of each and every case of death in police custody, shooting to death by the police and other mysterious deaths that is reported in the local media and / or brought to its’ attention and calling for an urgent and immediate Inquiry pursuant to Sections 334, 337 and 339 of the CPC.

Proposer: P. Uthayakumar

Resolution:

The Motion, as amended, was unanimously carried.

Motion 6

Lawyers are potentially immensely powerful. And by definition, noble. Our legal profession is currently tied up in knots. We are missing the point entirely. It’s not only about money.

Politicians make the worst sort of leaders. Greedy hustlers most of them are. Lawyer must never be greedy conniving hustlers. And almost always we are not. With legal savviness and status as professionals, we lawyers must position ourselves as the true leaders. Our society with its current messed-up norms must be restructured before it is too late. A single case can effectively introduce positive changes in our world, if nobly argued and purposefully fought. We regain our vision and the sense of our real purpose. We lead by example and our works evince responsibility. Every single one of us has a significant role to play.

The Malaysian Bar hereby resolves that we will, collectively and individually assume unfailing responsibility for heavenifying our world. We will henceforth function with the overriding conviction that we are immensely powerful when noble and that because of this, we are accountable and it is our duty to assist God in resolving the misery, injustice and mixed-up values that have invaded our world. We will not rest until our world is heavenified and we shrewdly and courageously do everything within our collective and individual power and strength to restore dharma, goodness, love, peace and justice to our planet, without fail. Always aware that God is with us when we do the right thing.

(2) Peace reigns when there is an absence of crime and violence. The underworld is thriving in our beloved country. Malaysia is currently being besieged by gangsters and hooligans. When they are charged in court we lawyers happily defend them, get them off on technical or clever arguments. To have them released onto the public again only to do further damage. A lawyer who defends a drug-trafficker the lawyer clearly knows is absolutely guilty and gets acquitted may be considered brilliant but he is himself directly contributing to the rampant drug abuse and total destruction of young Malaysian lives. Drug traffickers, rapists and armed robbers for example no longer fear getting caught because there are lawyers who are willing to subvert justice and the lawyer for a handsome fee and get them off.

If we know a man has actually been raping his child, are we really free of sin if we get him acquitted using cunning argument. The concept of ‘Innocent until proven guilty’ is meant to protect the innocent. We lawyers often use it to protect the guilty sinful offenders. A person is guilty the minute he commits the offence. Then, being found guilty is just technical. We are lawyers capable of great deeds but we have corrupted. If no lawyer ever defended an accused person, whom we have firm belief or actual knowledge has indeed committed the sinful offence, peace would be on her way back to us.

The Malaysian Bar hereby resolves that none of us will henceforth represent any accused persons whom we have firm belief or knowledge has indeed committed the offence charged unless it is morally and socially appropriate to do so. We make this resolution because we realize that lawyers must be at the forefront of the battle against the scourge of crime and violence. We will uphold the dignity of the law and the Malaysian people because the law must never be used against itself to destroy our society, our country and the world at large.

Proposer : Anita Sharma
Seconder: Haji Mohamad Afza Bin Dahari @ Zahari

The Motions were withdrawn.

Motion 7:

WHEREAS:

The Bar Council and State Bar Committees are elected by members of the Malaysian Bar, and such must at all times be transparent and accountable to its members.

IT IS HEREBY RESOLVED THAT:

A. The Malaysian Bar should strive to be the model of democracy, ensuring always that principle of transparency and accountability is practised in its own organisation at all levels.

B. That the leaders of the Bar should at all times actively and positively be responsive to its membership, and must strive to ensure that freedom of expression and opinion is a all times not only respected but also practised within the Bar at all levels.

Proposer: Charles Hector

Resolution:

The Motion, as amended, was unanimously carried.

Motion 8

WHEREAS:-

1. The Malaysian Bar had recently launched a Benevolent Fund for its Members called Law Care Fund.

2. It is desirable that funds be sourced from all Members of the Bar to support the Law Care Fund which is strictly for the Benefit of all Members of the Bar and to provide financial assistance to their immediate Family Members.

IT IS HEREBY RESOLVED that:-

A. Each Member of the Bar does contribute a sum of RM100/= per year to the Law Care fund and that such payment is to be made at the same time when the Bar Council Annual Subscription is paid.

B. Any new Member of the Bar who has been issued with a Sijil Annual on or before 1 October of any Year shall also contribute the sum of RM100/= to the Law Care Fund.

Proposer: Jagjit Singh
Seconder: Melvin Selvam

The Motion was withdrawn.