Item 6.1 of agenda
To increase the annual subscription for the Main Fund dated 8 February 2008
WHEREAS the Bar Council has exercised its powers under section 46(1) of the Legal Profession Act 1976 to fix the amount of the annual subscription to be paid by members of the Malaysian Bar.
WHEREAS the current subscription pursuant to Section 46 (1) and (4) is RM350 per annum, which amount was resolved by the Malaysian Bar at its annual general meeting in 1997.
WHEREAS the cost and expense of running the Malaysian Bar Secretariat as well as financing its various activities have escalated over the years.
WHEREAS in spite of the various austerity and cost saving measures put in place by the Bar Council, the income in the Main Fund is insufficient to defray the Malaysian Bar’s annual expenditure for items chargeable to the Main Fund; and, that in the last five (5) years (since 2002) the expenditure has been more than income, resulting in increasing deficit in the Main Fund.
WHEREAS the annual deficit for the past five (5) years has had the effect of depleting the reserves in the Main Fund.
NOW IT IS HEREBY RESOLVED pursuant to section 46(4) of the Legal Profession Act, 1976, the annual subscription shall be increased from RM350 to RM700, thus the total of the subscriptions payable under section 46(1), the levies payable under section 46(3) and the annual contribution payable under section 80 shall henceforth be RM1,170 per annum which shall comprise the following:–
Subscription – RM700.00
Building Fund – RM100.00
Legal Aid Fund – RM100.00
Compensation Fund – RM100.00
Law Care Fund – RM100.00
Disciplinary Fund – RM 60.00
Sports Fund – RM 10.00
Proposer: Bar Council
Boniface Lobo proposed an amendment to the motion to reduce the figure of RM700/–to RM525/–. 181 members voted to amend the figure to RM600/– against 166 members voting to amend it to RM525/–.
The motion to increase the figure from RM700/– to RM600/– was put to the vote. It was not carried. [192 voted in favour, 214 against, and no abstentions]
Item 6.2 of agenda
Boycott of courts and nationwide forums
In addition to the motion proposed by the Bar Council in as per the Circular No 253/2007 calling for amongst others, an independent and competent judiciary, we wish to propose the following resolutions:–
1. The Malaysian Bar calls upon lawyers nationwide to participate in a symbolic one–hour boycott of the courts – from 9:00 a.m. to 10:00 a.m. at a date to be determined;
2. The Malaysian Bar with the involvement of all State Bars and civil society organizes a nationwide road show of dialogues, forums and leafleting in order to create awareness amongst the ordinary people on the judicial crisis as part of its campaign to set up an independent and competent judiciary.
The said road show must be planned with a proper schedule covering all zones and regions and be launched as soon as possible and be conducted in all 4 major languages for the benefit of everyone.
Proposer: Renuka T Balasubramaniam and Latheefa Koya
The motion was withdrawn.
Item 6.3 of agenda
Rules governing the manner of convening General Meetings of the Malaysian Bar and the procedure thereat and to give effect to Part V of the Legal Profession Act
Proposer: P Suppiah
The motion was put to a vote. It was not carried. [32 voted in favour, 78 against, and 12 abstentions]
Item 6.4 of agenda
Rules governing the Conduct of General Meetings
1. WHEREAS the general body of the Malaysian Bar, had at its 60th Annual General Meeting, approved the draft rules to govern meetings of the Malaysian Bar, subject to any amendments that may be made by the Bar Council and approved by the members at the next Annual General Meeting.
The Bar Council had at the 61st Annual General Meeting, vide item 7 of the meeting Agenda, tabled a set of Rules governing the convening of general meetings as amended in accordance with the mandate given by the House at its 60th Annual General Meeting;
At the 61st Annual General Meeting, P Suppiah had also tabled a motion with proposed amendments to the Rules governing the manner of convening annual and general meetings and the procedure thereat and to give effect to Part V of the Legal Profession Act;
The House agreed to defer both item 7 of the Agenda and P Suppiah’s motion respectively.
3. AND WHEREAS an Ad Hoc Committee on Rules and Regulations had been appointed to study the proposed Rules after the 60th and 61st Annual General Meetings.’
4. IT IS HEREBY RESOLVED THAT
The Malaysian Bar accepts and approves the Rules governing the conduct of general meetings contained in Annexure 1 to be effective from 1st April 2008.
The Bar Council shall study the Rules governing the conduct of the Bar Council Meetings and Committee Meetings and implement the same at a suitable date after obtaining feedback from the Ad Hoc Committee on Rules & Regulations and from members of the Malaysian Bar.
Proposer: Bar Council
The motion was put to a vote. It was carried by a majority of 93 in favour, 12 against, and 5 abstentions.
Item 6.5 of agenda
To determine the viability of a Self–Insurance Fund as an alternative to the present PII Scheme
At the 44th AGM of the Malaysian Bar on 17 March 1990 members by majority adopted the representations by Antah Sedgwick on the proposed professional indemnity scheme.
Dato’ Dr. Peter Mooney, the then Chairman of the Professional Indemnity Insurance (PII) Committee sent a Circular dated 16 April 1992 to members of the Malaysian Bar on the proposed professional indemnity scheme, which was implemented on 1 July 1992.
At the 56th AGM of the Malaysian Bar on 23 March 2002, members unanimously adopted the motion by the Bar Council to undertake a complete review of the PII Scheme and to examine all options for premiums whose levels are fair and reasonable and whose structure bears proper justification.
The Bar Council has made significant improvements to the PII Scheme for the benefit of the members of the Malaysian Bar since the 56th AGM which among others are:
The removal of the Confidentiality Clause in 2005 which gave the Bar Council access to vital statistical data on premiums, claims and claims loading; the removal of punitive and prohibitive pre–settlement claims loading structure; the removal of work and responsibility loading, etc.
In 2005, set up the Joint Claims Committee (JCC) which consisted of senior members of the Bar, the Broker and Loss Adjuster who sat and heard appeals and complaints from members regarding their Mandatory PII.
Set up the PII & RM Department in 2006 and developed a comprehensive Risk Management Programme for the benefit of the members of the Malaysian Bar, with Publications of a quarterly newsletter, Practice Guides, Practice Area Alerts, Checklists; Seminars and Workshops; Legal Audits; Surveys, etc.
The Bar Council, following an open tender in September 2007, appointed Echelon Risk Asia Consulting to initiate a definitive analysis on the viability of a SIF and to detail the steps necessary for a transition from the current arrangements. Key objectives of the Bar Council in moving to a SIF are to insulate the PII Scheme against insurance market volatility, exert greater control over the Scheme and its management, and over time reduce insurance costs to members of the Malaysian Bar.
The proposed SIF structure will be to utilise a central fund to self insure a layer of claims which are relatively predictable and insurance being used for protection against severe individual claims and the aggregation of claims in any one year; and the amount required to fund the self insured layer of the SIF will be determined through actuarial analysis of the PII Scheme’s historical claims record and loss forecasting techniques to ensure that the SIF is adequately capitalised to meet its ongoing liabilities.
g) The precedent for this transition is conduct of a review on other Law Society Schemes in Australia; United Kingdom; Hong Kong and North America. The experience of these schemes will form part of the Feasibility Study to be submitted to the Bar Council.
IT IS HEREBY RESOLVED THAT
i) The Bar Council be authorised to take all necessary steps towards determining the viability of a self insured fund as an alternative to the present PII Scheme.
ii) The Bar Council shall present at the 63rd Annual General Meeting of the Malaysian Bar in 2009, the structure of the proposed SIF and relevant approval(s) (where applicable) for adoption by members if a SIF is determined to be a viable option.
iii) The proposed date of implementation of the SIF be 1 January 2010 subject to the SIF being adopted by members at the 63rd Annual General Meeting of the Malaysian Bar in 2009.
Proposer: Bar Council
The motion was put to a vote. It was carried by a majority of 135 in favour, 1 against, and 2 abstentions.
Item 6.6 of agenda
Seeking the repeal of the Internal Security Act 1960
The Malaysian Bar,
recalling its resolution of 27 November 1987 that inter alia the detention of persons without trial as provided for by the Internal Security Act 1960 is in violation of the rule of law, human rights and the principles of democratic government;
taking note that Malaysia is a member of the United Nations Human Rights Council and is obliged to uphold the underlying values of international human rights law as set out in inter alia the Universal Declaration of Human Rights 1948 and International Covenant of Civil and Political Rights 1976;
deeply concerned that despite wide–ranging penal legislation, Malaysia continues to invoke laws which allow for the detention of persons without trial as the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969 and Dangerous Drugs (Special Preventive Measures) Act 1985;
outraged that the Internal Security Act 1960 has most recently been used against Manoharan a/l Malayalam, Uthayakumar a/l Ponnusamy, Kengadharan a/l Ramasamy, Ganabatirau a/l Veraman and Vasantha Kumar a/l Krishnan who have been ordered to be detained for two years from 13 December 2007;
1. Strongly calls upon the Government of Malaysia to immediately and unconditionally release all persons presently detained without trial, and where appropriate, to prosecute them in a public and fair trial.
2. Strongly calls upon the Government of Malaysia to immediately repeal all laws which allow for the detention of persons without trial such as the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969 and Dangerous Drugs (Special Preventive Measures) Act 1985.
3. Strongly calls upon the Government of Malaysia to immediately ratify and implement by way of domestic legislation the International Covenant of Civil and Political Rights 1976 and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987.
4. Invites the Government of Malaysia to have a monthly dialogue session on human rights issues with representatives of the Human Rights Commission of Malaysia, Attorney–General's Chambers, non–governmental organisations, human rights groups and Bar Council.
Proposer: Bar Council
The motion was unanimously carried.
Item 6.7 of agenda
Vote of no–confidence in the Bar Council 2007–2008
Whereas the EGM of the Malaysian Bar attended by 3243 members passed inter alia the following resolution:–
The Bar Council set up an Ad–Hoc Committee consisting of not more than 7 Senior Members of the Malaysian Bar to carry out an in–depth study of the implications of the amendments on the Malaysian Bar and the legal profession and for that purpose to receive and consider such representation as may be made to it on the Amendments.
That the Bar Council thereafter recommend to the competent authorities accordingly.
Whereas the Ad–Hoc Committee was duly constituted and received 29 representations from members of the Bar. The report of the Ad–Hoc Committee recommended several amendments to the Legal Profession (Amendment) Bill 2006. This Act actually came into force on 2.10.2006. The Bar Council of 2006–2007 accepted the recommendation with very minor amendments.
Whereas on 16 November 2006, the 2nd EGM was held to pass a vote of No Confidence in the Office Bearers and 2 other members for their “misconduct in actively working against the members of the Malaysian Bar with regard to the said Amendments” but the Motion was defeated at 7.10pm with 182 votes for the Motion and 1032 votes against and 27 abstentions.
Whereas to persuade the members to vote against the Motion of No–Confidence, the then Council Members made the following representations and/or statements:–
Mr Lim Chee Wee is recorded in the minutes of the EGM as having said:–
“The Attorney General made it clear that they cannot set a precedent in not allowing this Act to take its natural course to come into force. The Attorney General said that there is no perfect piece of legislation. If there are good reasons for the further amendments, he will amend it. At the meeting on 19th August 2006, the Attorney General said that he would consult only the representatives of the Bar. It was not possible for him to consult the entire body of the Bar. At the meeting between the KL Bar Committee and the Minister, the Minister echoed a similar sentiment… Mr Lim Chee Wee urged members to consider the fact that the Council has acted bona fide in the interest of members.”
Mr Sulaiman Abdullah is recorded in the minutes of the EGM as having said:–
“All the other amendments concerning disciplinary proceedings came from the Disciplinary Board. It came to the previous Council and the Bar Council fine–tuned it so that it would not prejudice members. At the time no one Council Member said that the provision was draconian or that they should be taken to the membership. It was again brought to the present Bar Council and again no one said that …… The Attorney General has said that we can go back to him with further amendments and he will consider it.”
Mr Jerald Gomez is recorded in the minutes of the EGM as having said:–
“Although he does not share the same view as Sulaiman Abdullah and Kuthubul Zaman, this did not mean a vote of No Confidence should be passed against them. Council Members stand together when a decision is made. He said that Council should have come back to the General Body for their input. He said he had studied the Amendments and was concerned about the effect on members. Going before the DC and the DB is a different ball game. He said that he has had a first hand experience. There must be rules put in proper order. He said that Council should have done more. If Council has fallen short, all Council members are collectively responsible. The Council should have seen the Prime Minister and met the Attorney General. He said he was not calling for a vote of No Confidence against the Council but a censure. He was of the view that the Council did not go as far as it could have done.”
Mr Yeo Yang Poh, the then Chairman of the Bar Council is recorded in the minutes of the EGM as having said:–
“The Chairman said that if members feel that mistakes of such serious proportion has been made, for which someone must answer, then that someone must be him. But it would be wrong to bring down the other Council Members who have sacrificed time and effort to serve the Bar. It would not be right to blame the many Council Members who did nothing more than serving the Bar in good faith. That would damage the Bar as a whole. He urged members not to harm the Bar Council and the Malaysian Bar in that way.”
The mover of the Motion of No Confidence is recorded in the minutes of the EGM as having said the following in his closing speech:–
“Murthi said that his main complaint was that the 6 Council Members were the main actors. They were not responsible enough to realise the feeling of the members, the members’ rice bowl and livelihood. They should have realised all this before the Bill was submitted but they failed to do so. They did not care. The report prepared by the Ad–Hoc Committee is testimony to the fact that the Amendments required a lot of overhaul. From March 2004 to Sept 2006 the DB suspended 47 members. The DB is not a place where members can obtain justice. The draconian amendments have made it worse. This was done by 6 Council Members. That is why he put in this Motion.”
Whereas the present Bar Council of 2007–2008 took office on 17 March 2007 and the resolution of the EGM passed by 3243 members is binding on the Bar Council of 2007 – 2008 and every succeeding Bar Council that assumes office thereafter.
Whereas by an email dated 20 May 2007 sent to the Secretary of the Bar Council Major Murthi requested for information on the steps taken by the Bar Council on the proposed amendments mandated by the EGM in the year 2006. There was no response from the Bar Council. On 19 August 2007 another email was sent to the Secretary of the Bar Council wherein it was stated as follows:–
“This is the second time I am asking for the progress. I hope the Bar Council is not deliberately delaying the amendments proceedings in the hope the matter will die a natural death.”
Again there was no response to the 2nd email. On 29 January 2008, by a third request, this time by a hand delivered letter, Major Murthi asked for the same information he had requested as early as 20 May 2007. Photocopies of the earlier two emails were exhibited to this letter.
The Bar Council acknowledged receipt of this third letter dated 29 January 2008 by its rubber stamp dated 30 January 2008. Again, there was no reply.
Whereas it is clear from the minutes of the EGM dated 18 August 2006, wherein one of the Architects of the 2006 Amendment Tuan Hj Sulaiman at page 50 of 2006/2007 Annual Report has clearly admitted that Bar Council Amendments were centred on the quorum requirement whilst all the amendments on Disciplinary proceedings were at the behest of the Disciplinary Board and blindly approved by the then Bar Council.
Whereas it is now clear that the Bar Council of 2007– 2008 has treated lightly the mandated Command given by the Supreme Body of the Legal Profession or has failed and/or neglected to actively and aggressively pursue the amendments recommended by the Ad–Hoc Committee of the Malaysian Bar with the Prime Minister of Malaysia and/or the Minister of Law YB Dato’ Seri Nazri with a view to effectuate the unanimous wishes of the members of the Bar assembled at the General Meeting on 16 August 2006.
It is hereby resolved:–
That this house expresses no confidence in the Bar Council of 2007–2008 for its failure to carry out the task entrusted to it by 3243 members on 18 August 2006 and crystallised in the Justice V.C George’s Committee report dated 15 November 2006 by effectuating the required amendments to the Legal Profession Amendment Act 2006 and also for shamefully reporting to the members of the Bar that it has been stonewalled by the Disciplinary Board’s objections in carrying out the mandate given to it by the supreme body of the Legal Profession.
Proposer: Lian Meng Wah
The motion was put to a vote. It was not carried. [5 voted in favour, 167 against, and 30 abstentions]
Item 6.8 of agenda
Vote of no–confidence in the Disciplinary Board 2007–2008
Whereas in November 1985 a high–level committee comprising of Tun Hussein Onn, Tun Mohamed Suffian, Justice Harun Hashim with 8 other members was set up to review the Legal Profession Act 1976 with a view to improve the disciplinary proceedings of the Profession.
Whereas in December 1986 the Hussein Onn Committee presented its report and the cornerstone of the report was the excision of the Disciplinary Jurisdiction of the Bar Council and vesting that jurisdiction in a body independent of the Bar Council.
Whereas on 1.4.1992 the Legal Profession (Amendment) Act 1992 came into force and the Advocate & Solicitors’ Disciplinary Board was constituted as an institution independent of the Bar Council.
Whereas the Advocates & Solicitors’ Disciplinary Board was constituted of 16 Advocates & Solicitors including the President of the Bar and chaired during the formative years by a sitting Judge, then a retired Judge and finally by a Senior Advocate & Solicitor.
Whereas initially the power of interim suspension was solely grounded on Section 88A of the Legal Profession Act 1976, this practice was departed from sometime in 2002 when Section 94(4) of the Legal Profession Act 1976 suspension became the norm.
Whereas there have been few cases of wrongful suspension of members who were subsequently either found not guilty of dishonesty either by the Disciplinary Committee or the Judicial process. They suffered injury without redress.
Whereas in 2006 when the Bar Council managed to secure the agreement of the Government to allow amendments to the Legal Profession Act 1976, the Advocates & Solicitors’ Disciplinary Board exploited the opportunity and aggressively pushed through draconian amendments to disciplinary process, much to the prejudice of the members of the Bar.
Whereas the Bar Council did not consult the members of the Bar on the amendments to the disciplinary process and the proposed Amendments were railroaded into an Act of Parliament.
Whereas 3243 members assembled at an E.G.M on 16 August 2006 and registered their strong protest at the draconian Amendments and constituted, with the concurrence of the Bar Council, Justice V.C George’s Committee to make recommendations for further amendment to restore the equilibrium between public interest of the Consumers and the public interest of the practising members.
Whereas the 16 Advocates & Solicitors of the Advocates & Solicitors’ Disciplinary Board did not, despite an invitation, present any representations to the Justice V.C George’s Committee for its consideration as to why the Amendments effected by the Legal Profession Act 2006 ought to be sustained or amended.
Whereas some members of the Bar enraged by the swift passage and the gazetting of the Act convened an EGM of the Malaysian Bar on 16 November 2006 to pass a vote of no–confidence in the Bar Council for its failure to protect the interest of the members of the Bar.
Whereas the then Chairman of the Bar Council accepted full responsibility for whatever shortcoming, if any, and the Motion was defeated by 182 votes for 1032 votes against and 27 abstentions.
Whereas it has now come to the knowledge of the members of the Bar from the 2007/2008 Annual Report (page 62 paragraph G5) that the Advocates & Solicitors’ Disciplinary Board constituted by 16 Advocates & Solicitors have obstructed the process of the Amendments by raising objections to the Amendments proposed by the Malaysian Bar.
Whereas the members of the Bar feel that the 16 Advocates & Solicitors have failed to realise that though the 16 Advocates & Solicitors are independent of the Bar Council, there are nevertheless a constituent and an integral part of the Legal Profession and that they cannot hold the profession to ransom by their intransigent conduct.
Whereas the members of the Bar feel that it is unbecoming and dishonorable for the 16 Advocates & Solicitors constituting the Advocates & Solicitors’ Disciplinary Board to solicit the support of the Bar Council in 2006 to promote its agenda, but when in 2007, the Malaysian Bar sponsored the new Amendments to the Government, to use obstructionist tactics to sabotage the unanimous wish of the Malaysian Bar as expressed at the EGM on 16 August 2006.
Now it is resolved:–
The Malaysian Bar hereby records this motion of no confidence in the 16 members of the Bar constituting the Advocates & Solicitors’ Disciplinary Board for their unbecoming dishonourable and unprincipled obstructions hoisted by them to sabotage the amendments proposed by the Malaysian Bar to the Legal Profession Act 1976 (as amended by the Legal Profession Amendment Act 2006).
Proposer: Major M S Murthi
The motion was put to a vote. It was not carried. [11 voted in favour, 110 against, and 21 abstentions]
Item 6.9 of agenda
Kuala Lumpur Legal Aid Centre (KL LAC) Investigation and Reform
Whereas 18 Legal Aid volunteer lawyers, past office bearers, Committee members and Management Panel members of the KL LAC have signed a petition dated 20.2.2008 expressing concern on issues relating to transparency, accountability and use of Legal Aid funds (a copy of the petition is enclosed herewith as Exhibit “A”).
It is hereby resolved that:–
1. The Kuala Lumpur Bar Committee (KLBC) be authorised to empanel an independent investigation committee to investigate the allegations in the petition and other allegations that may come to light and issues of concern raised at the KL LAC annual gathering on 16 February 2008. The investigation committee shall comprise three persons acceptable to a majority of the 18 petitioners.
2. The investigation committee shall be empanelled within 1 month of the date of this resolution. It shall conclude its investigations within 1 month thereafter, and publish its report within a further 1 month to the entire Malaysian Bar.
3. The Elections held on 16.2.2008 in respect of the Office Bearers of the KL LAC for the year 2008/2009 be declared null and void due to insufficient and inadequate notice and irregularities, a fresh election be conducted within 2 weeks from the date of this resolution. The fresh election shall be supervised and chaired by the Chairman of the KLBC or other person appointed by him.
4. A steering committee comprising three past Chairpersons/office–bearers of the KL LAC be appointed by the KLBC to oversee the freshly–elected Office Bearers and Management Panel for a period of up to 6 months or such period as the steering committee deems necessary. The steering committee shall comprise three persons acceptable to the majority of the 18 petitioners.
Proposer: R Ragunanthanan a/l E Ramuloo
The motion was put to a vote. It was not carried. [49 voted in favour, 101 against, and 13 abstentions]
Item 6.10 of agenda
Reform of the Bar Council Legal Aid Scheme
A. The Bar Council has established the Legal Aid scheme to comply with Section 42(1)(h) of the Legal Profession Act, 1976 (LPA) which object is:–
“To make provision for or assist in the promotion of a scheme whereby impecunious persons may be represented by advocates and solicitors.”
B. Pursuant thereto the Bar Council has set up a Legal Aid Fund whereby members of the Bar pay an annual subscription of RM100.00. This Fund is comprised of monies of the members of the Bar and is intended to assist in representation of the poor and marginalised.
C. This Legal Aid Fund is used to run the Legal Aid Centres in West Malaysia which come under the purview of the State Bar Committees, with help of volunteer lawyers to advise and represent the impecunious.
D. There are no proper rules or procedures, governance, transparency or accountability governing the usage of this fund.
E. Funds intended to be used to assist in representing the poor and marginalised are not properly or effectively used to represent the impecunious. Equal protection of law is both a fundamental and constitutional human right. Due to insufficient volunteer lawyers, many Legal Aid Centres are unable to provide representation for the impecunious and there are many unassigned files mainly criminal files, and the number of unassigned files is increasing. For example, with regard to KL Legal Aid Centre in 2007, 399 files were opened of which 288 had been taken up by volunteer lawyers, and the number of unassigned files has increased to 99.
It is hereby resolved that:–
1. The Legal Aid scheme shall confine itself only to the object in Section 42(1)(h) of the LPA, as stated above, and to purposes necessarily incidental with that object, such as training of chambering students for Legal Aid duty.
2. The Legal Aid Fund shall be used to pay volunteer lawyers a reasonable amount towards their overhead expenses for handling files, not exceeding RM500.00 per file and to employ full–time qualified lawyers to give advice and represent the impecunious.
3. Proper rules and procedure to govern the Legal Aid Fund and the operation of the Legal Aid Centres be formulated, with the objects of transparency, accountability and good governance.
Proposer: Nachammai a/p KMS Kumarappan Chettiar
The motion was withdrawn.