The Bar Council expresses its strong protest at the bringing into force of the amendments in Part IIA of the Legal Profession Act 1976 (the Act) nearly twenty (20) years after the amendments were first enacted by Parliament. By a letter received on February 2, 1999 the Bar Council was notified by the Parliamentary Draftsman of the Attorney General’s chambers that Part IIA was being brought into force with effect from 1st February 1999.
Part IIA was first enacted in January 1978. It enables the Attorney General to issue a special admission certificate for a specified period to a lawyer, whether a Malaysian citizen or not, and whether a “qualified person” or not under the Act, to enable that person to be admitted as an advocate and solicitor by the High Court in Malaya. It follows that the said lawyer would then be permitted to practice as an advocate and solicitor in West Malaysia for the specified duration subject to renewal from time to time.
The Bar Council and the Attorney General had exchanged correspondence on this subject in August/September 1997 on the basis of whether Part IIA could be applied to foreign legal practitioners.
The Bar Council has consistently taken the stand that Part IIA is unsuitable to deal with the question of foreign legal practitioners both because of the historical background to the amendments and its failure to provide any adequate machinery on this subject.
The amendments were introduced in the wake of the Essential Security Cases Regulations (ESCAR) trials controversy of 1977 when the Bar adopted a resolution to boycott the ESCAR trials because of the removal of the traditional safeguards enjoyed by accused persons. It should be noted that the Amendments were designed to overcome the perceived boycott by providing for Special Admission Certificates to be issued by the Attorney General to enable a non-practising lawyer to be specially admitted to defend an accused person facing an ESCAR trial in court. It is generally unsuitable as regards the mechanism needed for enabling foreign legal practitioners to practice within our jurisdiction. The main interest of the latter is usually in the area of corporate and business law and not litigation practise in the courts. Thus, in other countries a separate law has been enacted to provide for the admission and practise within jurisdiction of foreign lawyers which deals with the whole range of matters like admission requirements, satisfying local Bar requirements and being subjected to the jurisdiction of the Bar on matters of ethics and discipline. Part IIA provides no light protection to the public seeking the services of a foreign lawyer admitted under its provisions.
As regards the liberalisation of the legal services sector and GATS, the Bar Council has sought to work closely with the Government through Bank Negara and the Ministry of International Trade and Industry (MITI). The Bar Council is supportive of the cautious, step by step, approach taken by MITI in the GATS negotiations.
The Bar Council is of the opinion that the admission of foreign lawyers should be considered as part of the overall GATS questions and not independently under the 1978 Amendments. An outright liberalisation under the Part IIA mechanism is injurious both to the local bar and the public.
The Bar Council also states that the original reasons that may have existed 20 years ago to enable foreign lawyers or local lawyers who are not already admitted to the Bar to undertake a case in Court on a special certificate no longer exists. There is presently no boycott of ESCAR trials. Neither has the Bar Council been notified by the Attorney General’s Chambers of any new reason justifying the need to license a lawyer outside the Bar to undertake a case in Court nor is the Bar Council aware of the existence of any such justifying reason.
The Bar Council states that it is highly incongruous that any such measure should now be invoked when the Bar has rapidly increased in size and there are enough lawyers of ability and competence, and who are fearless and independent, to undertake any case in Court for a client.
Accordingly the Bar Council calls for a reconsideration by the Government of its decision to bring into force Part IIA of the Act, twenty years after the event, and calls for its full and total repeal.
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Talk on Summary Judgement (25 May 2012) Organised by the Selangor Bar Committee, this talk will take place at 5:00 pm, at the Selangor Bar Committee Auditorium, on 25 May 2012 (Friday). The talk will be conducted by Ramesh Supramanian. Click on the link above for more details.
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4th LAWASIA Family Law Conference, Penang (13 and 14 July 2012) Supported by Penang Bar Committee and the Malaysian Bar, this conference, themed “The New Global Family: Emerging Trends and Challenges to Family Practice”, will take place at Traders Hotel, Penang, on 13 and 14 July 2012 (Friday and Saturday). Click on the link above for more details.
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