Amendment to the LPA by adding Section 46A in 1978
Thursday, 02 August 2001 12:00am
It was reported in the newspapers on 31 July 2001 that when replying to a question by Teresa Kok,DAP Member of Parliament for Seputeh during question time in Parliament, the Deputy Minister in the Prime Minister's Department, Datuk Tengku Adnan Tengku Mansor said that it was the Bar Council which had asked for the amendment to the Legal Profession Act 1976 to exclude,inter alia, an Advocate and Solicitor of less than seven years' standing from serving on the Bar Council.
The Bar Council wishes to place on record that the reply given by the Deputy Minister is incorrect as the amendment to the Legal Profession Act by adding Section 46A in 1978 to exclude Advocates and Solicitors of less than seven years' standing, a member of Parliament or of the State Legislative Assembly, or any local authority, or a person who holds office in any trade union or political party was not at the instance or requirement of the Bar Council, but by the Government.
On the contrary, the Bar Council had then challenged the validity of the amendment by referring the matter to Court in the case of Malaysian Bar & Another v Government of Malaysia in 1987. However, the Supreme Court in that case confirmed the constitutionality of the provision and that the durational requirement of seven years was valid. The Supreme Court held that the durational requirement of seven years would help to ensure that lawyers would have sufficient professional experience and would also enable lawyers to familiarise themselves with the various problems of the Bar before they begin to serve in the governing bodies of the legal profession.
In the same news article, the Deputy Minister was quoted as saying that the placing of Sessions Court judges, magistrates and prosecutors under the Judicial and Legal Service Commission does not violate the separation of powers doctrine.
The Bar Council has always maintained and reiterates the position that judicial officers, other than High Court Judges and Appellate Court Judges, should be placed under a separate service commission from that of legal officers and prosecutors in the AttorneyGeneral's Chambers. This is because having one common service commission for both judicial and legal officers where magistrates and deputy public prosecutors are intertransferable will create conflict of interest situations such as when a senior Deputy Public Prosecutor may be appearing before a junior magistrate.
The Bar Council calls for a separation of the services to ensure that judicial and legal officers will be able to discharge their duties without fear or favour.
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