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Number of Members present : 2,404

Motion 1

Motion On Continuing Professional Development

(a) WHEREAS the Professional Development Committee of the Bar Council (the ‘Committee’) has considered whether there is a need for the implementation of a continuing professional development programme for the Malaysian Bar; and

(b) WHEREAS having considered local and international trends (see Appendices 1 and 2) in favour of the implementation of such programmes for the purpose of practitioners of law and in the context 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 has made a recommendation to that effect to the Bar Council; and

(c) WHEREAS a motion for Mandatory Continuing Legal Education which required a two-thirds majority to be approved was not carried by the Bar at the 59th AGM even though it had a majority; and

(d) WHEREAS the Committee has considered all the reservations or objections raised against the implementation of a Mandatory Continuing Legal Education programme, and has prepared the guidelines herein attached (see Appendix 3) having taken into consideration the reasonable objections

IT IS HEREBY RESOLVED THAT:

(a) The Malaysian Bar recognises the need for the implementation of a Continuing Professional Development programme, to be made mandatory at a future date to be determined by the Bar Council; and

(b) The Bar Council be authorised to take all reasonable steps towards the implementation of such a programme including, if considered necessary:

(i) adopting the Guidelines on the Continuing Professional Development programme as attached;

(ii) drawing up a syllabus of topics, trainers and venues;

(iii) conducting a trial run of the programme based on the syllabus drawn up; and

(iv) putting in place measures to encourage participation in the programme and to inculcate a culture of continuing professional development amongst members.

Proposer: Krishna Dallumah
Seconder: Raphael Tay

The Motion was rejected.

Motion 2

Motions on Raja Segaran suits

WHEREAS:

1. The Bar Council had by its notice of meeting dated 12 October 1999 sought to convene an Extraordinary General Meeting of the Malaysian Bar on 20 November 1999 for the purpose of considering and if thought fit passing a resolution to pursue the appointment of a Commission of Inquiry to look into alleged instances of controversy allegedly involving the then Chief Justice of Malaysia.

2. Mr. Raja Segaran s/o S. Krishnan, a member of the Malaysian Bar, had on 9 November 1999 filed a suit against, inter-alia, the Malaysian Bar, vide Kuala Lumpur High Court Suit No. S2-23-93-1999 (“Raja Segaran No. 1”), to restrain the Malaysian Bar from holding the said Extraordinary General Meeting and from discussing and considering the motions proposed to be tabled thereat.

3. The Malaysian Bar’s application to strike out the said suit was dismissed with costs on 15 November 1999.

4. Mr. Raja Segaran had applied for and obtained an interlocutory injunction dated 19 November 1999 restraining the Malaysian Bar from holding the said Extraordinary General Meeting and from discussing and considering the motions proposed to be tabled thereat. Costs of the application were ordered in favour of Mr. Raja Segaran.

5. The Malaysian Bar’s appeals to the Court of Appeal against both decisions and orders of the High Court were dismissed with costs on 11 July 2000 and 12 July 2000 respectively.

6. The Malaysian Bar then sought leave to appeal to the Federal Court against both decisions of the Court of Appeal. The applications for leave were denied with costs by the Federal Court on 29 January 2001.

7. Arising from local and foreign media reports in May/June 2000 of comments and/or allegations made by members of the Executive and of Parliament concerning the conduct of the then Chief Justice of Malaysia, and of the counter comments by the then Chief Justice of Malaysia, and due to the controversy arising therefrom, the Bar Council had by its notice of meeting dated 13 June 2000 sought to convene an Extraordinary General Meeting of the Malaysian Bar on 23 June 2000 for the purpose of considering and if thought fit passing a resolution to, inter-alia, seek the appointment of a Royal Commission of Inquiry to investigate the said allegations.

8. Mr. Raja Segaran had again filed a second suit vide Kuala Lumpur High Court Suit No. S2-23-33-2000 (“Raja Segaran No. 2”) to restrain, inter-alia, the Malaysian Bar from holding the said Extraordinary General Meeting of the Malaysian Bar and from discussing and considering the motions proposed to be tabled thereat.

9. Mr. Raja Segaran had again applied for and obtained an interlocutory injunction dated 22 June 2000 restraining the Malaysian Bar from holding the said Extraordinary General Meeting of the Malaysian Bar and from discussing and considering the motions proposed to be tabled thereat. Costs of the application was ordered in favour of Mr. Raja Segaran. The Malaysian Bar’s preliminary objections were dismissed with costs.

10. The Malaysian Bar appealed to the Court of Appeal against the order granting the interlocutory injunction and against the dismissal of the preliminary objections in Raja Segaran No. 2 (“Raja Segaran No. 2 Appeals”).

11. The Malaysian Bar had at its Extraordinary General Meeting held on 14 July 2000 unanimously resolved:

(a) “To endorse the decision of the Bar Council to appeal the decision in Raja Segaran No. 2”; and

(b) “That this House endorses the actions taken by the Bar Council, the Exco and the Office Bearers vis-à-vis the 2 aborted EGMs and all related action and expresses its full confidence in the Bar Council and directs the Bar Council to take all further action that it deems necessary to uphold the principles of the Malaysian Bar.”

12. On 5 September 2000, the High Court in Raja Segaran No. 1 ordered the matter to be proceeded by way of trial of preliminary issues as framed pursuant to Order 33 of the Rules of the High Court 1980. The Malaysian Bar had appealed against the order of the High Court ordering the trial by preliminary issues (“Order 33 Appeal”).

13. The trial of preliminary issues was held on various dates, between 26 September 2000 and 20 April 2001. In the course of the trial of preliminary issues, the High Court had dismissed the Malaysian Bar’s objections pursuant to section 76(2) of the Legal Profession Act, 1976. The Malaysian Bar had appealed against this dismissal (“Section 76 Appeal”).

14. Upon completion of the trial of preliminary issues but before decision was made the learned judge had on 10 March 2001 suggested that the parties should consider settlement as the Chief Justice of Malaysia concerned had since retired.

15. The Malaysian Bar had at its Annual General Meeting held on 17 March 2001 considered a motion as follows:

“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.”

16. The aforesaid motion was unanimously rejected by the Malaysian Bar at its Annual General Meeting held on 17 March 2001.

17. Mr. Raja Segaran had on 24 April 2001 applied to discontinue the Raja Segaran No. 1 proceedings in light of the suggestion by the learned judge. The High Court had on 4 May 2001 allowed this application for discontinuance.

18. The Malaysian Bar appealed to the Court of Appeal against the order of discontinuance. The Court of Appeal had on 8 April 2002 allowed the Malaysian Bar’s appeal with costs.

19. On 10 November 2003 the High Court allowed Mr. Raja Segaran’s claims with costs in the trial of preliminary issues in Raja Segaran No. 1. The Malaysian Bar appealed to the Court of Appeal against this decision of the High Court (“Trial of preliminary issues Appeal”).

20. On 24 September 2004, the Court of Appeal dismissed the Order 33 Appeal, the Section 76 Appeal and the Trial of preliminary issues Appeal (“Raja Segaran No. 1 Appeals”) with costs, and also dismissed the Raja Segaran No. 2 Appeals with costs.

21. The Malaysian Bar applied for leave to appeal to the Federal Court against the decisions of the Court of Appeal in dismissing the Raja Segaran No.1 Appeals and the Raja Segaran No. 2 Appeals.

22. The said applications for leave to the Federal Court were denied with costs by the Federal Court on 11 October 2005.

23. The decisions of the courts in Raja Segaran No. 1 and Raja Segaran No. 2 as they stand today are that (a) it is ultra vires the Legal Profession Act, 1976, in particular section 42, and it is contemptuous and seditious for the Malaysian Bar to discuss the Judiciary in the terms as proposed in the relevant motions, (b) that Articles 125 and 127 of the Federal Constitution prohibit the Malaysian Bar from discussing the Judiciary or the conduct of Judges at its meetings, and (c) that a member of the Malaysian Bar has the requisite locus standi to restrain a general meeting of the Malaysian Bar from doing so.

24. The Raja Segaran No. 2 suit is currently undergoing case management. The next date for case management is fixed for 27 March 2006. Trial of the Raja Segaran No. 2 suit has been fixed for 14 to 16 August 2006 and 25 to 29 June 2007.

25. Mr. Raja Segaran had vide his solicitors’ letter dated 11 October 2005 proposed to withdraw the Raja Segaran No. 2 suit with no order as to costs.

IT IS HEREBY RESOLVED that the Malaysian Bar rejects the proposal by Mr. Raja Segaran to discontinue the Raja Segaran No.2 suit as stated in his solicitors’ letter dated 11 October 2005; and that this House authorises and directs the Bar Council to take all further action that it deems necessary to pursue the Raja Segaran No. 2 suit and to uphold the principles of the Malaysian Bar.

Proposer: Bar Council

Resolution:

The Motion, as amended was unanimously carried.

Motion 3

That the Meeting approves the Draft Rules (attached with explanatory notes) to govern meetings of the Malaysian Bar, the Bar Council and the State Bar and its Committees, made pursuant to Section 42(2)(d) and 42(3) of the Legal Profession Act.

Rule 65 - Subject to any amendments that may be made by the Bar Council and approved by this House, these Rules shall come into force after the Bar Council has looked into and amended them, and they have been brought before this House for approval at the next AGM.

Proposer: P Suppiah

Resolution:

The Motion (with the above amendment to rule 65) was carried.

Motion 4

Motion on Abolishment of the Death Penalty

WHEREAS every human being has the inherent right to life;

WHEREAS Malaysia has hanged at least 358 persons between 1981 and 2005;

WHEREAS about 173 persons are on death row as at December 2005;

WHEREAS:
a) studies conducted throughout the world over the past seventy years have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment;

b) studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate, and in Canada there in fact was a sharp decline in the homicide rate after abolition;

c) in the United States, over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty;

WHEREAS on the other hand the execution of human beings by the State gives an ‘example of barbarity’ to society and legitimizes the taking of human life;

WHEREAS Malaysia lacks safeguards that would ensure a fair trial such as the right to immediate access to a lawyer upon arrest, right to full disclosure of evidence in the possession of the police and prosecution, and has to the extreme prejudice of accused persons loaded a capital crime statute such as the Dangerous Drugs Act 1952 (which generates the largest number of death sentences annually) with presumptions of trafficking that compromise the presumption of innocence which is integral to any fair and just criminal justice system;

WHEREAS:
a) it is not possible in any system of human justice to prevent the horrifying possibility of the execution of innocent persons; and

b) the infliction of the death penalty makes wrongful convictions irreversible;

WHEREAS:
a) 122 countries have abolished the death penalty in law or practice, as opposed to 74 countries which retain the death penalty;

b) An average of three countries have abolished the death penalty each year over the last decade;

c) the trend worldwide has been for the abolition of the death penalty;

WHEREAS the UN Commission on Human Rights Resolution 2005/59 passed in 2005 calls upon all states to abolish the death penalty, and states that the abolition of the death penalty is essential for the protection of the right to life of every human being;

WHEREAS Article 1 of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) provides that ‘No one within the jurisdiction of a State party to the present Optional Protocol shall be executed’.

WHEREAS the death penalty has no place in any society which values human rights, justice and mercy;

NOW IT IS HEREBY RESOLVED that the Malaysian Bar calls for:

1) The abolition of the death penalty in Malaysia;

2) An immediate moratorium on all executions pending abolition;

3) Commutation of the sentences of all persons currently on death row;

4) Ratification by Malaysia of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

Proposers: N.Surendran
Charles Hector
Seconders: Amer Hamzah Arshad
Sreekant Pillai

Resolution:

The Motion was adopted.

Motion 5

That due to the large increase of membership the subscription of RM350 per annum be reduced to RM150 per annum as most of the money is now wasted on useless activities and the Bar Council is being used as a milk cow by various groups.

Proposer: WE Balasingham

The Motion was not carried.

Motion 6

That we do away with the Legal Aid, in spite of all the publicity, as it is the responsibility of State to provide for the have nots in our Society.

Proposer : WE Balasingham

The Motion was not carried.