The Malaysian Bar - First Keynote Address by The Right Honourable Tan Sri Arifin bin Zakaria, Chief Justice of Malaysia, at the 5th China-ASEAN Forum (26-27 Sept 2011)

First Keynote Address by The Right Honourable Tan Sri Arifin bin Zakaria, Chief Justice of Malaysia, at the 5th China-ASEAN Forum (26-27 Sept 2011)

Thursday, 29 September 2011 10:43am

Malaysian Judiciary and Its Role in CAFTA

The Rt. Hon. Tun Dato’ Seri Zaki bin Tun Azmi, President of ASEAN Law Association Malaysia

The Rt. Hon. Chief Justice Renato C Corona, Chief Justice of the Supreme Court of Philippines

The Hon. Tan Sri James Foong, Chairman of the Organising Committee

The Hon Justice Chao Hick Tin, Vice President of the Court of Appeal of Singapore

Mr Hu Zhong, Vice President of the China Law Society

Mr Lim Chee Wee, President of the Malaysian Bar

Mr Sundra Rajoo, Director of the KL Regional Centre for Arbitration

Judges, Lawyers, Speakers

All Participants, Ladies and Gentlemen

1. Thank you for inviting me to deliver the First Keynote Address of this 5^thChina Asean Forum this morning. Let me begin by extending a warm welcome to all the honourable participants by saying “Selamat Datang”. (The Malay words for welcome)

2.    The history of diplomatic relations between Malaysia and the PRC can be traced as far back as 1974. Malaysia was the first nation in South East Asia to establish diplomatic relations with the PRC, and this was marked by the mutual signing of the Joint Communiqué on 31 May 1974.¹

3.    Since then, Malaysia and the PRC have enjoyed immense economic growth. For instance, bilateral trade between our two nations was less than USD100 million in 1974 but this figure has since soared to an impressive USD60 billion last year.

Ladies and gentlemen,

4.    Establishment and birth of CAFTA

The China-ASEAN Free Trade Agreement (CAFTA) is barely two years into its full implementation but has registered significant amount of achievements that mutually benefitted ASEAN and the PRC. Besides cross-regional trade both in goods and services, enhanced political relations, peace and stability have been the much-welcomed ‘by-products’ of this pact. The present cross-border trade is a revival of the Old Silk Road.

The PRC is Malaysia’s biggest trading partner globally, and within ASEAN, Malaysia is also the PRC’s largest trading partner. Malaysia is fully committed towards CAFTA.

I understand that with CAFTA, Malaysia’s exports to the PRC have improved considerably. All indications show that this will continue to grow in the future

Ladies and gentlemen,

Permit me to touch briefly on the legal framework in Malaysia.

5. Arbitration in Malaysia

The law relating to Arbitration is now governed by Arbitration Act 2005 (ACT 646) which came into force on 15th March 2006.

The Act seeks to reform the law relating to domestic arbitration, provide for international arbitrations, the recognition and enforcement of award for related matters. It adopts the UNCITRAL Model Law, with some modification. For instance, Part II of the Act is nearly identical to Sections 3 to 36 of the Model Law.

Section 4(1) of the Act provides for a wide and inclusive scope for the recognition of arbitration agreements. It should be noted that unlike the Model Law, arbitration agreements under the Act are not restricted to arbitrations of commercial disputes. The Act applies to all disputes unless deemed to be contrary to public policy.²

The Act was amended earlier this year to ensure greater clarity of its provisions and to better supplement the process of arbitration, both domestic and international. Some of the more noteworthy amendments include:-

(1) Greater recognition of party autonomy – Section 8 explicitly states that no court is to intervene in matters governed by the Act, unless where so provided.

(2) Greater availability of interim remedies – The original Act grants to the High Court the power to make interim orders in respect of the matters set out in subparagraphs (a) to (h) of Section 11(1), including an order to prevent the dissipation of assets pending the outcome of arbitration proceedings. Under the new amendments, the Court’s powers in respect of interim remedies are amplified to cover international arbitrations where the seat of arbitration is outside Malaysia.

(3) Greater deference to the progress of arbitration proceedings – Under the original Act, the Court was able to stay litigation proceedings unless it found that there was no dispute between the parties on the matters referred to arbitration. The relevant section has been amended to now provide only one instance where litigation proceedings will not be stayed, namely where the Court is satisfied that the arbitration agreement is null and void, inoperative and incapable of being performed. Again, this applies equally to an international arbitration where the seat of arbitration is outside Malaysia.

(4) Greater certainty and finality of arbitral awards – Section 39(1)(a)(v) of the 2005 Act confers on the Court a right of refusal on the recognition or enforcement of an arbitral award where the award which contains decisions on matters beyond the scope of the submission to arbitration. The potential harshness of this provision is now mitigated by the introduction of a new subsection, which recognises a situation where the decision on matters submitted to arbitration can be separated from those matters which have not been submitted to arbitration. By Section 39(3), the Court is able to recognise and enforce those parts of the award on matters that have been submitted for arbitration. Still on the issue of awards, the 2005 Act also allows any party to refer to the High Court any question of law arising out of an award. Under the amendments, the High Court is now empowered to dismiss such a reference, unless the question of law substantially affects the rights of one or more of the parties.

Where parties have chosen to arbitrate rather than litigate, judicial practices ought to ideally be in tandem with the process of arbitration. Ultimately, it is our hope that the framework of laws in this country will continue to contribute to an environment where disputes can be resolved swiftly, efficiently, and at a reasonable cost.

Needless to say that in Malaysia, The Kuala Lumpur Regional Centre for Arbitration (KLRCA) has been successful in promoting arbitration as an alternative mode of dispute resolution. The centre was established in 1978 under the auspices of the Asian Legal Consultative Organization (AALCO). It was the first regional centre established by AALCO in Asia to provide institutional support as a neutral and independent venue for the conduct of domestic and international arbitration proceedings in Asia. KLRCA’s new tagline, “Regional Resolution, Global Solution”, reflects the centre’s commitment towards the promotion of arbitration with a view to fair resolution of disputes through the adoption of fast-paced, cost-saving and fair procedures by its panel of arbitrators and the efficient enforcement of domestic and international arbitration awards.³

Ladies and gentlemen,

6. Judicial Reforms in Malaysia

Since 2008, positive steps were taken to reform the Malaysian Judiciary. Most importantly the work culture and mind-set of Judges right down to the supporting staff have undergone drastic changes.

These changes were geared towards increasing efficiency through use of technology. The Electronic Court (E-Court) was initially launched in Kuala Lumpur Court in the middle of 2009. The principal components of the E-Court include, The Court Recording and Transcription (CRT), Case Management System (CMS), Queue Management System (QMS) and electronic filing (E-Filing).

A number of specialised courts were established in Kuala Lumpur and other major trial centres. These are: The Intellectual Property Court, Admiralty Court, New Commercial Courts New Civil Courts and Corruption Court.

These reforms have brought about improvement in case-disposal timelines and a drastic reduction in case backlog. Credit is due to my predecessor Tun Zaki bin Tun Azmi who is also the President of Asean Law Association of Malaysia (ALA).

Reform of the judiciary is still on going, and although we are happy with the initial results, a lot more still needs to be done. We now need to focus more on quality. The recent report by the World Bank which was released on the 5th of September 2011 gives high recognition to the reform initiatives. The report is available on the Malaysian Judiciary’s website.

For information to all participants, I am pleased to say that our New Commercial Court (NCC) which was established in September 2009 dealing with commercial cases has been highly successful. Cases file in this court are disposed within 9 months from the date of registration and at the appellate stage, the Special Commercial panel of the Court of Appeal hears NCC’s appeal within 3 months from the date of filing. With this initiative, commercial cases in Malaysia now can be disposed within 12 months from the date of filing including the appeal process. The success of NCC has encouraged us to start the New Civil Court (NCvC) not only in Kuala Lumpur but throughout the country.

7. Access to Justice in Malaysia

Under the principle of the Rule of Law adequate protection of the law must be given to all persons and to give meaning to it, there must exist an unimpeded right of access to justice. In the words of Lord Bingham “It would seem to be an obvious implication of the principle that everyone is bound by and entitled to the protection of law that people should be able, in the last resort, to go to court to have their civil rights and claims determined. An unenforceable right or claim is a thing of little value to anyone.”⁴ (Emphasis Added)

In this context, let me touch a little on legal aid systems in Malaysia. The cost of legal service can be prohibitive. Realizing that not everyone can afford to obtain legal service, there are alternative means for public to have recourse to legal representation. At the moment, we have three bodies providing legal aid service. They are:

(i) Legal Aid Department (LAD)

The LAD is a governmental body under the Legal Affairs Division of the Prime Minister’s Department. It was established in September 1970. Its source of power is found in the Legal Aid Act 1971, the Legal Aid and Advice Regulations 1970 and the Legal Aid (Mediation) Regulations 1970 and the Legal Aid (Mediation) Regulations 2006. The primary objective of its establishment is to provide legal aid and advisory service to the deserving members of the public on legal issues commonly associated with them.

The LAD provides free legal advice and representation to individuals who pass their qualifying criteria. In addition, LAD also provides subsidised legal service. LAD has branches in all states and the Federal Territories in Malaysia.

(ii) Bar Council Legal Aid Centre

Bar Council Legal Aid Centre (BCLAC) was founded by the Malaysian Bar Council with the objective of providing citizen equal opportunity for the enforcements of their fundamental right. It provides free legal advice and representation and it has branches in every state in Malaysia.

The BCLAC is actively involved in pro-bono work in the community, and conducts many programmes in cooperation with other organisations.⁵ It is funded through the contribution of members of the Bar and cases are taken on a voluntary basis by dedicated lawyers.

(iii) National Legal Aid Foundation

The National Legal Aid Foundation (NLAF) was proposed by the Bar Council. Its aim is to ensure that all accused persons could get a fair hearing in courts in line with Clause (3) of the Article 5 of the Federal Constitution. The clause states that an accused person must be allowed to consult and be defended by a legal practitioner of his choice. It is an independent body that administer funds allocated for legal aid by the Government and the Bar Council. Its objectives are, amongst others, to fund the provision of legal aid, enhance services for lawyers to represent those needing legal representation, determine the guidelines for the administration of the national legal aid scheme, and initiate and carry out educational programmes designed to promote understanding among members of the public of their rights and duties under the laws of Malaysia.

NLAF will focus on obtaining representation for persons caught in the criminal justice system- from the point of arrest to courts hearing. Lawyers who sign up to handle NLAF cases will be paid from the fund.

Ladies and gentlemen,

8. Liberalisation of Malaysian Legal Profession

Malaysia will soon see the presence of foreign lawyers practicing foreign law. This will service the growing cross border trade and investments. I was make to understand that the Malaysian Bar and the Attorney General Chambers are presently drafting the amendments to the Legal Profession Act 1976 to permit the entry of foreign lawyers either in a qualified foreign law firm, international partnership or in a local law firm.

In recent years the relationship between the Bar and the Bench in Malaysia is most cordial. I give my firm commitment that the Judiciary will continue to foster this close relation.

Finally, I would like to take this opportunity to congratulate the organisers of the 5th CHINA ASEAN FORUM namely, the PRC Law Society, the Malaysian Bar and Kuala Lumpur Regional Centre for successfully organizing this forum, which definitely goes a long way towards cementing the already close tie existing between the PRC and Asean.

With that note, I wish all participants a productive and eventful forum.

TAN SRI ARIFIN BIN ZAKARIA

CHIEF JUSTICE OF MALAYSIA
26^TH OF SEPTEMBER 2011

¹ Statement by Dato’ Sri Mohd Najib Tun Razak published in the the China Daily, 02nd June 2009.
http://www.chinadaily.com.cn/china/2009malaysia/2009-06/02/content_7961842.htm

² Sundra Rajoo & WSW Davidson, The Arbitration Act 2005, UNCITRAL Model Law as applied in Malaysia, Sweet & Maxwell, 2007, Malaysia, Page 24.

³ www.klrca.org.my/About us_Us-@Who_We_Are.aspx

⁴Tom Bingham, The Rule of Law, at page 85.

⁵ Amongst others include All Women Society (AWAM), Women’s Aid Organization (WAO), Tenaganita’s Migrant Workers Desk, Pink Triangle Foundation and United Nation High Commissioner for Refugees (UNHCR).

Set as favourite

Email This