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Number if Member present: 2,456

Motion 1:

THE MALAYSIAN BAR in the discharge of its statutory duty under Section 42(1)(a) of the Legal Profession Act, 1976 to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour:

VIEWS with grave concern the detention of numerous persons under the Internal Security Act and recent legal developments in connection thereof;

REAFFIRMS that the ISA is an obnoxious piece of legislation undermining fundamental Human Rights, basic Democratic Principles and The Rule of Law; CALLS for all persons detained under the ISA either to be released or charged expeditiously in Court under the relevant laws so that the principles of The Rule of Law and the right to fair trial and Justice shall prevail;

DEMANDS that all Members of the Bar who are acting in the defence of their clients be allowed to carry out their duties freely without any harassment, hindrance or restraint by the Authorities, And

ABHORS the condemnation, vilification and prejudgment of any person in the media.

Proposer: Bar Council

Resolution:

The Motion was unanimously adopted.

Motion 2:

Whereas

1. The Federal Constitution is the supreme law that enshrines the fundamental rights and liberties of the people.

2. The right of a person to be allowed to consult and be defended by a legal practitioner of his choice, the right to be treated equally before the law and the entitlement to equal protection of the law, the right to freedom of speech and expression, the right to assemble peaceably and without arms, the right to form associations and the right to move freely throughout the Federation are such rights and liberties.

3. Faithful adherence to the Rule of Law and principles of natural justice ensures a free, just and civilised society.

And Whereas

4. Of late, various persons have been arrested and detained under the Internal Security Act, 1960 (Act 82):

a) for alleged offences ranging from rumour mongering, telephone cloning and harbouring illegal immigrants;

b) for expressing dissenting views;

c) as a threat for interrogation on matters not envisaged by the Act.

5. a) The offences mentioned in Recital 4(a) are chargeable under various other legislations enacted by Parliament;

b) the expression of dissenting views is a fundamental right of the individual.

6. The continued use of the Internal Security Act 1960 (Act 82) and the denial of legal consultation for persons detained thereto amount to an abuse and misuse of power.

7. a) The police have required legal practitioners representing persons recently detained under the Internal Security Act, 1960 to present themselves for questioning, in circumstances which amount to harassment and interference with the discharge of their duties. (as amended)

b) The police have even recently detained under the Internal Security Act, 1960 Encik Zulkifli Nordin and Encik Ruslan Kassim, members of the Malaysian Bar. (as amended)

8. Students and civil servants have been warned that disciplinary action would be taken against them if any of them is found to have attended gatherings called to express dissenting views. Members of the public have also been warned against attending such gatherings.

9. The police appear to have exercised unnecessary and excessive force in:-

a) dispersing peaceful assemblies and arresting persons participating in them;

b) arresting Dato’ Seri Anwar Ibrahim.

10. By curtailing the right of members of the public and the press to visit Datin Seri Dr Wan Azizah, the authorities have unreasonably restricted freedom of speech, movement and association.

11. The authorities have unreasonably curtailed the dissemination of information by restricting news reports by the media.

12. The publication in the media of four affidavits filed on behalf of the prosecution in relation to the application filed by Datuk Nallakarupan to be returned to the Sungai Buloh prison, the statements made, amongst others by the former Inspector-General of Police Tun Haniff Omar and the Prime Minister relating to allegations of sexual impropriety by Dato’ Seri Anwar Ibrahim, raise serious issues including those of interference with the administration of justice, trial in the media and contempt of court.

13. The making of the statement by the Chief Justice that an affidavit once filed is a public document is improper in view that such issue is pending before the Court.

14. In the manner in which he dismissed the Finance Minister from his post on 2nd September 1998, the Prime Minister appears to have paid scant regard to the Constitution, in particular, Article 43(5) of the Federal Constitution. (as amended)

15. There have been instances in which the Attorney-General appears to have failed to discharge his role properly.

And Whereas

16. The Malaysian Bar has statutory duties, inter alia, to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour, and to protect and assist the public in all matters touching, ancillary or incidental to the law.

17. The Malaysian Bar views the above events as unconscionable and a blatant disregard for the Federal Constitution, the Rule of Law, the doctrine of separation of powers and principles of natural justice.

18. The Malaysian Bar yet again re-affirms its commitment to uphold and defend the Rule of Law, the Federal Constitution and principles of natural justice without fear or favour and timeously.

Now It Is Hereby Resolved:

1. That the Malaysian Bar calls on the Government

a) to respect and abide by the Rule of Law, the Federal Constitution and principles of natural justice;

b) to respect, uphold and give full effect to the Constitutional rights of the freedoms of movement, peaceful assembly, association, speech and expression for all persons.

2. That the Malaysian Bar calls on the Executive, the Legislature and the Judiciary to abide by and maintain the separation of powers as envisaged in the Federal Constitution.

3. That the Malaysian Bar calls upon the Attorney-General:

a) to play his proper role as befits the guardian of public interest;

b) to ensure that the system of justice is preserved by taking stern action against any person who resorts to trial by media;

c) to act without fear or favour;

d) to have as his principle concern to maintain the Rule of Law so that there will be no anarchy; and

e) to maintain standards in public life and in the private sector.

4. That the Malaysian Bar condemns the continued use of the oppressive Internal Security Act, 1960 and calls for:

a) the immediate repeal of the Internal Security Act, 1960;

b) the immediate release of all persons detained under the Internal Security Act 1960 and, if warranted, for such persons to be charged and tried in a court of law.

5. That the Malaysian Bar condemns the denial by relevant authorities of persons detained under the Internal Security Act, 1960 to legal consultation of their own choice. (as amended)

6. That the Malaysian Bar condemns the harassment of members of the legal profession in the performance of their duties by the police.

7. That the Malaysian Bar condemns the unnecessary and excessive use of force by the police in the performance of their duties and calls upon the police to, at all times, exercise restraint in the exercise of their powers.

8. That the Malaysian Bar condemns the undesirable and despicable practice of trial by media and calls upon the media to maintain its proper and responsible role.

9. That the Bar Council shall forthwith take such steps as are necessary to give effect to the above resolutions and the Bar Council should, henceforth, take immediate action with respect to matters as and when they arise consistent with the duties of the Malaysian Bar set out in Recitals 16 and 18 above and Section 42(1) of the Legal Profession Act, 1976.

Proposers: Mr Ranjit Singh /so Harbinder Singh & 31 others
Seconders: Mr Gopal Sreenevasan & 31 others

Resolution:

The Motion was unanimously adopted as amended.

Follow-up Action:

1) An EGM was called for on 9th January 1999 to discuss the contempt question but had to be aborted due to lack of quorum but the Bar Council moved ahead by forming an ad-hoc Committee on Codification of Contempt of Court legislation to govern the discretionary power of contempt against lawyers to provide for certainty in its application as has been done in the UK and India. A draft Contempt Act was presented to the Prime Minister and the Attorney-General’s Chambers for their appropriate attention.

2) The Bar Council’s right under Sections 42 and 57 of the Legal Profession Act to hold watching brief for members who faced peril in the course of their professional duty was denied in the contempt cases of En. Zainur Zakaria and Mr Tommy Thomas before the High Court. The Council filed appeals against the High Court’s decision. The Court of Appeal later allowed the Bar Council to hold a watching brief in Encik Zainur Zakaria’s case.

3) A seminar was held on 23 January 1999 to discuss the “Role of the Bar Council in holding watching briefs” and “Contempt of court proceedings against lawyers”.

4) Following complaints received from several lawyers on being called up by the police to Bukit Aman to give statements under the Criminal Procedure Code in criminal cases involving the former Deputy Prime Minister, the Bar Council took a strong stand through press statements and sent a letter of protest to the Inspector General of Police.

5) Legal Aid Volunteers experienced difficulty in gaining entry into PULAPOL to represent detainees involved in alleged illegal demonstrations when the remand hearings were held at PULAPOL. The Bar Council protested this by issuing a press statement calling for the cooperation of the police to facilitate access for lawyers and family members to the detainees and that remand hearings must be done in open court and that right of access to counsel must be observed.

6) An official letter was also sent to the Attorney-General. On 4 December 1998, the Judges
of the Criminal Division of the High Court convened a meeting of all those involved in the criminal courts including magistrates, session judges and representatives of the Bar Council where it was inter alia decided that henceforth all remand hearings would be held in regular courts. The Bar Council set up a legal defence team to render whatever assistance that may be needed by both members of the Bar and the public. Over 150 members volunteered to serve on this team.

7) The Council issued a press statement on 3rd October 1998 calling for the immediate
release of En. Zulkifli Nordin and En. Ruslan Kassim and all other persons detained under the ISA and if warranted, for such persons to be charged by the Court under the relevant laws so that the right to fair trial and justice could prevail. Both members were later released from detention.

Motion 3:

The Malaysian Bar notes with grave concern the recent complaints of assault in custody made by Dato’ Seri Anwar Ibrahim, Mr Tian Chua and other persons arrested in connection with recent public assemblies.

The Malaysian Bar does not consider the setting up of a police investigation committee an appropriate measure to be adopted to deal with such complaints of police brutality.

The Malaysian Bar calls on the Government to set up an Independent Royal Commission of Inquiry consisting of reputable persons of unquestionable integrity to investigate all recent complaints of police brutality. The commission will make public all its reports and recommendations.

Proposer: Mr Cecil Rajendra
Seconder: Ms K. Chandra

Resolution:

This Motion was unanimously adopted.

Follow-up Action:

The Bar Council participated in the Royal Commission hearings into the assault on Dato’ Seri Anwar Ibrahim on a formal observer status basis.

Motion 4:

Whereas

1. One of the objects of the Malaysian Bar is to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia;

2. And another of the objects is to afford pecuniary and other assistance to members or to former members of the Malaysian Bar and to wives, widows, children and other dependents, whether of members, former members or deceased members who are in need of such assistance;

3. Noting also the fact of the increasing probability that members of the Bar may be arrested and detained by the police, and also subjected to possible further detention under the powers accorded to the police by virtue of Section 117 of the Criminal Procedure Code in matters in connection with their brief and/or client-solicitor relationship. A recent example of this being the case of Leonard Teoh.

4. Noting also that members of the Bar are also possible victims of laws that provide for detention without trial, whereby detention would include all forms of restriction orders, be it under the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933. A recent example being the case of Zulkifli Nordin who was detained under the Internal Security Act, 1960.

Therefore This House Resolves That:-

1. The Bar Council, whenever such arrests and detention take place be it under any laws that are in connection with the said lawyer’s brief OR arrests and detention under the laws that provide for detention without trial takes place, takes immediate action by making its stand or position openly and clearly that it is perturbed and opposed of such actions of the police or other authorities, by the issuance of a media statement and by whatever other means deemed appropriate.

2. The Bar Council takes immediate action to ensure that legal matters, handled by the said advocate and solicitor, be looked into to ensure that adjournments are sought, etc. with regard to litigation matters, and whatever other assistance be rendered to ensure the smooth discharge of the said advocate and solicitor’s duties in connection with his/her legal practice during the period of his/her detention.

3. That the Bar Council takes immediate action to ensure that family members and dependents of the said advocate and solicitor receive the necessary support and assistance, including legal and pecuniary assistance, if possible.

4. That the Bar Council work together with the State Bar Committees, to set up mechanisms to ensure immediate responses to the abovementioned tasks and responsibilities.

Proposer: Mr Charles Hector Fernandez
Seconder: Mr Bala Subramaniam

Resolution:

The House agreed with the Chairman that the Motion be treated as sentiments of the House and that Mr Charles Hector look at the system in England and come up with some concrete proposals for the Bar Council to consider.

Motion 5:

Whereas

1. The freedom of expression, association and movement is a fundamental human right enshrined in the Universal Declaration of Human Rights, and affirmed by international human rights standards.

2. No person should be punished by the means of arrest and detention, or by the imposition of restrictions and conditions as to his/her expression, association and/or movement, without being charged and tried in an open court.

Therefore This House Hereby Resolves That:-

1. The Malaysian Bar hereby adopts the position that all laws providing for arrest and detention without trial, and for the imposing of restrictions and conditions without trial are contrary to the Rule of Law, international human rights standards and established religious values and norms.

2. The Malaysian Bar calls for:-

a) The repeal of all laws that allow for detention without trial in particular the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933, and

b) The immediate and unconditional release of all persons arrested and detained under the first three mentioned legislations above.

c) The immediate removal and/or revocation of all Orders imposing restrictions and conditions under the abovementioned legislations, on all persons with regard to expression, association and movement, without trial.

3. The Bar Council takes all necessary steps to work towards the realisation of the abovementioned resolutions.

Proposer: Mr Charles Hector
Seconder: Mr Francis Pereira

Resolution:

The Motion was unanimously adopted.

Follow-up Action:

The Bar Council submitted a Memorandum to the Prime Minister’s Department on 11th December 1998 calling for a repeal of the ISA and all such laws providing for detention without trial. The Prime Minister officially responded to the Council stating that he would look into the matter.