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 KUALA LUMPUR, Thurs: The High Court here will hear lawyer Abdul Razak Bin Hashim's originating summons to declare the Solicitors' Remuneration (Enforcement) Rules 2004 ("SRER") null and void on August 7. It will be heard before Justice Wan Afrah bt. Wan Ibrahim of the the Appellate and Special Powers Division.
On December 28 last year, the New Straits Times had reported that Razak had on the same day filed an originating summons against the Bar Council and the Attorney-General for prohibiting discounts. The report stated that Razak had wanted the court to rule that Order 7 of the Solicitors Remuneration Order 1991 (now repealed by Solicitors Remuneration Order 2005), which prohibited giving discounts for conveyancing, is ultra vires Section 113(3) of the LPA. It appears that Razak might have withdrawn the aforesaid summons and filed afresh a new originating summons which was served on the Malaysian Bar about two weeks ago by his solicitors Messrs Cheong Wai Meng & Van Buerle of Penang. Apart from trying to invalidate the SRER which came into force on 1 November 2004, Razak, based in Kuala Lumpur, also seeks the following orders:
- a declaration that item 3 of Circular No. 62/2004 issued by the Bar Council titled "Bar Council Guidelines on Waiver of Fees in Conveyancing Matters" is contrary to Rule 52(c) of the Legal Profession (Practice and Etiquette) Rules 1978 and is not binding on members of the Malaysian Bar.
- a declaration that members of the Malaysian Bar are allowed to waive fees in non contentious matters at their sole discretion subject to Rule 52(c) of the Legal Profession (Practice and Etiquette) Rules 1978 or any other rule made under section 77 of the Legal Profession Act,1976. - no order as to costs. In his affidavit in support affirmed on 21 April 2006, Razak said the SRER is ultra vires the LPA, inter alia, on the following grounds:
(i) Section 42 of the LPA which deals with the object and powers of the Malaysian Bar does not vest the Bar Council with the right to investigate or police the members of the Malaysian Bar.
(ii) SRER was purportedly passed pursuant to Section 57(a) of LPA which is limited only to making rules governing general meetings of the Malaysian Bar where all matters have not expressly reserved to the Malaysian Bar in general meeting whether the same be expressed amongst its powers or not. As such, Razak said the SRER cannot be made under Section 57(a), the reason being the SRER is clearly a set of rules made to govern the professional practice, etiquette, conduct and discipline of an Advocate and Solicitor and Section 57(a) does not provide for that.
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(iii) the appropriate section that governs rules for regulating professional practice, etiquette, conduct and discipline of Advocate and Solicitor is Section 77 LPA. In order to make rules under Section 77, Razak said the Bar Council is required to obtain the approval of the Attorney General and also to have it published in the Gazette.
(iv) the failure of the Bar Council to pass SRER pursuant to Section 77 LPA is to circumvent the requirement of obtaining the AG’s approval. Furthermore Razak contended that by passing the SRER under Section 57(a) and not Section 77, the Bar Council can dispense with the requirement of having to gazette the SRER. (v) SRER is the only rule that was made by the Bar Council under Section 57(a). As a member of the Malaysian Bar, Razak said he is aggrieved that:
(i) the Bar Council would have to allocate a substantial sum of our funds towards the enforcement of SRER. He said at least four fulltime staff (including 2 executives) are assigned to the Enforcement Committee to assist in the enforcement of the rule. The Enforcement Committee members meet regularly in Kuala Lumpur and also travel outside KL and outstation members would have to be reimbursed their airfares and traveling expenses. In a year he estimated the Enforcement Committee’s expenses to be at least three to four hundred thousand ringgit.
(ii) SRER requires a statutory declaration to be affirmed by the Advocate and Solicitor or Managing Partner stating that he or his firm has not breached SRO 1991. This requirement is against the principle of self incrimination. Razak contended that the Bar Council by issuing SRER and the guidelines is acting against the law, in breach of the International Covenant on Civil and Political Rights, legal jurisprudence and exposing members of the Malaysian Bar to criminal penalties. His reasons are as follows: (a) The LPA only gives powers to the Disciplinary Board to censure, fine, suspend or struck off members from the Roll. It does not give the Bar Council the power to vest itself with investigative powers or the power to compel its members to provide clients’ confidential documents/information or ; search powers or the power to question members without complying with S.77 of the LPA i.e AG’s approval and gazette the rules.
(b) The Bar Council’s intention of asking its conveyancing members to file a Statutory Declaration is to let members know that it could lodge a police report against the member and take disciplinary action in the event the Statutory Declaration is found to be untrue. The Bar Council compels all solicitors or the managing partner of the firm to affirm the Statutory Declaration failing which the Bar Council may refuse to issue the lawyers their sijil annuals, a prerequisite for a practicing certificate to be issued.
(c) Although Malaysia is not a signatory to many United Nations treaties on Human Rights, one of which is the International Covenant on Civil and Political Rights, our law does recognize the principle of self incrimination. It is unfortunate that The Bar Council by its conduct towards its members appear to disregard this principle in its enforcement of the No Discount Rule.
(d) The Bar Council is conducting an exercise in which its conveyancing members are required to provide the Bar Council access to their clients’ confidential information/documents, their clients’ accounts, bank statements, the members’ accounts and receipt books so that the Bar Council could gather evidence against its members and then report those members whom the Bar Council is of the opinion had given discounts to their clients to the Disciplinary Board. The Bar Council is abusing its powers and functions and acting against the members’ interests, infringing the principle of self incrimination and causing its members to breach solicitor/client confidentiality.
In consequence, Razak contended that by enacting such draconian rules, the Bar Council is abusing its powers and acting ultra vires of the LPA and acting illegally. Malaysian Bar's Reply Ambiga Sreenevasan, the Vice President of the Malaysian Bar, in her affidavit affirmed on May 29 filed by Messrs Sivananthan, solicitors of the Malaysian Bar and served on Razak's solicitors yesterday, said in reply:
(i) it is disputed that the SRER is the first rule to be made under Section 57(a) of the Act.
(ii) the decision for a mechanism to enforce the SRO was made after consultation with members of the Malaysian Bar.
(iii) the Bar Council was directed by the members of the Malaysian Bar at general meeting by unanimous vote to enforce compliance with the SRO.
(iv) the SRER’s objective is merely the enforcement of the already existing SRO.
(v) the SRER only empowers the investigation of compliance with the SRO. Any disciplinary actions arising from such investigations are dealt with under the appropriate sections of the Act.
(vi) the SRER allows the Bar Council to enforce compliance with the SRO in order to ensure that solicitors who breach the law do not derive advantage over those who comply.
(vii) such funds as are expended on the enforcement of the SRO are within the powers of the Bar Council, and in any event the amounts alleged by the Plaintiff are far in excess of the true amount.
Ambiga added that since the coming into force of the SRER:-
(i) 75.12% of members of the Malaysian Bar have complied with its requirements; and
(ii) that associations such as the Federation of Malaysian Consumers Association and the National House Buyers Association support the SRO and its enforcement. Other associations such as the Association of Consulting Engineers Malaysia, the Association of Valuers & Property Consultants in Private Practice Malaysia, the Board of Town Planners Malaysia, the Institution of Engineers Malaysia, the Institutions of Surveyors Malaysia, the Malaysian Institute of Architects, the Malaysian Institute of Planners and the Malaysian Medical Association issued a joint memorandum affirming their support of the SRO and its enforcement.
Ambiga added that: (i) the Bar Council is empowered to make such rules under Section 57(a) of the Act;
(ii) the execution of the statutory declaration does not impinge on any principle of self-incrimination;
(iii) the SRER does not require solicitors to divulge any information in breach of any law; and
(iv) the Bar Council Circular No. 52/2004 merely provides guidelines and upon application by solicitors, the Bar Council does retain the discretion to allow the waiver of fees in any appropriate case.
In all the circumstances, Ambiga said Razak's Originating Summons ought to be dismissed.
To download the pleadings, please click on the links below: Affidavit in Reply of the Malaysian Bar Abdul Razak Hashim's Originating Summons and Affidavit
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Earlier, in my e-Adil report, I had inadvertently stated that the originating summons would be heard on June 7. This is incorrect. The correct date is August 7. Any inconvenience caused is regretted. This is one of the risks when one works in the wee hours of the morning!