Contributed by Chin Oy Sim (Deputy CEO) and Anis Taufik (Writer/Editor), with photographs by T Shan, Perak Bar
For almost an hour before the 65th Annual General Meeting (“AGM”) of the Malaysian Bar began on 12 Mar 2011 (Saturday), the foyer leading to the Grand Ballroom of the Legend Hotel, Kuala Lumpur, echoed with the sounds of Members of the Bar greeting each other, exchanging news, and browsing through the items for display or sale at the various booths.
For almost an hour before the 65th Annual General Meeting (“AGM”) of the Malaysian Bar began on 12 Mar 2011 (Saturday), the foyer leading to the Grand Ballroom of the Legend Hotel, Kuala Lumpur, echoed with the sounds of Members of the Bar greeting each other, exchanging news, and browsing through the items for display or sale at the various booths.
182 Members had signed in by 10:00 am. The number doubled within the next 20 minutes and continued to rise quickly. The Chairman, Ragunath Kesavan, called the AGM to order when the required quorum of 500 Members was achieved at 10:43 am.
Before the more pressing issues of the AGM could be discussed, a moment of silence, to honour the 34 Members who had passed away during the previous term, and the victims of the recent tsunami and earthquake in Japan, was observed.
The minutes of the 64th AGM, which had taken place on 13 Mar 2010, were considered, approved and adopted.
During the ensuing discussion on the President’s Report, Sulaiman Abdullah, a Bar Council
member, congratulated Ragunath Kesavan for filling his office “with great distinction”, citing the high standard that would be difficult to replicate. He acknowledged by name the efforts of the Chief Executive Officer and Deputy Chief Executive Officer in assisting the President throughout his term. Sulaiman Abdullah also highlighted that once again, the Secretariat’s production team for the 2010/11 Annual Report had done a fantastic job, producing a “wonderful, well–written report” despite strict time constraints and limited staff capacity. He expressed his delight with the return of the print version of Praxis, the chronicle of the Malaysian Bar, after a lapse of two years.
Numerous other Members voiced their appreciation for the work of the President and the Bar Council, noting in particular that it was Ragunath Kesavan’s last AGM before the end of his term as President.
The five motions that had been proposed for consideration at the AGM were then discussed.
The first motion that was considered, pertaining to the Advocates and Solicitors Disciplinary Board (“DB”), had been proposed by MS Murthi and jointly seconded by 40 Members of the Bar. MS Murthi stated that he was withdrawing his motion, as he had been notified of the Bar Council’s position on the issue, and agreed with it. The Chairman, Ragunath Kesavan, informed Members that DB should not participate in appeals, and that participation would be undertaken only by Bar Council.
The next motion, on inquries into death, had been proposed on behalf of the Bar Council Human Rights Committee by Andrew Khoo Chin Hock and seconded by Brendan Navin Siva, the Chairperson and Co–Deputy Chairperson of the Committee, respectively. In moving the motion, Andrew Khoo explained that its purpose was to seek the support of the Members of the Bar as Bar Council, and its Human Rights Committee in particular, pursues this matter and engages with various authorities in efforts to improve the current system of inquests. The motion was unanimously carried.
Members then considered the motion proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, calling on the Government of Malaysia to regulate will–writing enterprises. The Chairman expressed Bar Council’s view that, contrary to current law, the drafting of wills should be undertaken solely by lawyers. As such, Bar Council was against the motion, as it contemplates a larger class of persons allowed to carry out such work. At Sulaiman Abdullah’s suggestion, the motion was amended to call for the abolition of section 38(2) of the Legal Profession Act 1976, which would effectively disallow unauthorised persons, as defined in that legislation, to drafts wills for remuneration. The House was unanimous in its support for the amended motion.
The motion relating to the defamation suit by Asahi Kosei (M) Sdn Bhd against Charles Hector, a Member of the Bar, proposed by M Rajkumar and seconded by Gladys Liew Kim Leng. The company had initiated the suit over a blog article by Charles Hector in which the latter alleged that, in response to grievances raised by 31 of its workers from Myanmar, the company threatened the workers with termination of employment and possible deportation back to Myanmar. The complaints ranged, it was alleged, from non–payment of agreed wages, unlawful deductions, and monetary penalties for absences from work. The motion was unanimously carried after being amended, and resolved that the Malaysian Bar “shall render all necessary and reasonable assistance and support to Charles Hector Fernandez, as deemed fit by Bar Council”.
The final motion addressed related to the quality and administration of justice, and had been proposed by Ragunath Kesavan, Chairman of Bar Council, on behalf of Bar Council. There was lengthy and lively debate on the motion, and several possible amendments were discussed. Members provided examples of egregious behaviour by Judges in the implementation of Key Performance Indicators–related measures, and made impassioned pleas that strong action be taken to object to such incidents. Criticism was also directed at the recent imposition of the e–filing system in the Kuala Lumpur courts. Members debated various suggestions of methods to express the dissatisfaction of the Bar, with some Members expressing concern about the extent to which lawyers would be united, and would come forward, to support a protest on this issue.
When the amended motion was finally put to a vote, it was carried by a large majority, with 285 votes in favour, one against, and two abstentions. It resolved that the Malaysian Bar “has no confidence in the KPI measures introduced by Chief Justice YAA Tun Dato’ Seri Zaki b Tun Azmi, which do not serve the interest of justice and litigants, and calls upon him to immediately withdraw the same, failing which the Malaysian Bar directs the Bar Council to take appropriate steps to protest.”
As the AGM drew to a close, Ambiga Sreenevasan, past President of the Bar, moved a vote of thanks to the Chairman for having handled his position extremely well “during a difficult time”, the past two terms. She lauded him on having successfully seen Yayasan Bantuan Guaman Kebangsaan to fruition, and described it as “one of the crowning jewels of the Malaysian Bar”.
A total of 617 Members attended the AGM, which was adjourned at 2:25 pm.
In the first Bar Council meeting held immediately after the AGM, the following Office Bearers were elected for the 2011/2012 term:
Before the more pressing issues of the AGM could be discussed, a moment of silence, to honour the 34 Members who had passed away during the previous term, and the victims of the recent tsunami and earthquake in Japan, was observed.
The minutes of the 64th AGM, which had taken place on 13 Mar 2010, were considered, approved and adopted.
During the ensuing discussion on the President’s Report, Sulaiman Abdullah, a Bar Council
member, congratulated Ragunath Kesavan for filling his office “with great distinction”, citing the high standard that would be difficult to replicate. He acknowledged by name the efforts of the Chief Executive Officer and Deputy Chief Executive Officer in assisting the President throughout his term. Sulaiman Abdullah also highlighted that once again, the Secretariat’s production team for the 2010/11 Annual Report had done a fantastic job, producing a “wonderful, well–written report” despite strict time constraints and limited staff capacity. He expressed his delight with the return of the print version of Praxis, the chronicle of the Malaysian Bar, after a lapse of two years. Numerous other Members voiced their appreciation for the work of the President and the Bar Council, noting in particular that it was Ragunath Kesavan’s last AGM before the end of his term as President.
The five motions that had been proposed for consideration at the AGM were then discussed.
The first motion that was considered, pertaining to the Advocates and Solicitors Disciplinary Board (“DB”), had been proposed by MS Murthi and jointly seconded by 40 Members of the Bar. MS Murthi stated that he was withdrawing his motion, as he had been notified of the Bar Council’s position on the issue, and agreed with it. The Chairman, Ragunath Kesavan, informed Members that DB should not participate in appeals, and that participation would be undertaken only by Bar Council.
The next motion, on inquries into death, had been proposed on behalf of the Bar Council Human Rights Committee by Andrew Khoo Chin Hock and seconded by Brendan Navin Siva, the Chairperson and Co–Deputy Chairperson of the Committee, respectively. In moving the motion, Andrew Khoo explained that its purpose was to seek the support of the Members of the Bar as Bar Council, and its Human Rights Committee in particular, pursues this matter and engages with various authorities in efforts to improve the current system of inquests. The motion was unanimously carried.
Members then considered the motion proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, calling on the Government of Malaysia to regulate will–writing enterprises. The Chairman expressed Bar Council’s view that, contrary to current law, the drafting of wills should be undertaken solely by lawyers. As such, Bar Council was against the motion, as it contemplates a larger class of persons allowed to carry out such work. At Sulaiman Abdullah’s suggestion, the motion was amended to call for the abolition of section 38(2) of the Legal Profession Act 1976, which would effectively disallow unauthorised persons, as defined in that legislation, to drafts wills for remuneration. The House was unanimous in its support for the amended motion.
The motion relating to the defamation suit by Asahi Kosei (M) Sdn Bhd against Charles Hector, a Member of the Bar, proposed by M Rajkumar and seconded by Gladys Liew Kim Leng. The company had initiated the suit over a blog article by Charles Hector in which the latter alleged that, in response to grievances raised by 31 of its workers from Myanmar, the company threatened the workers with termination of employment and possible deportation back to Myanmar. The complaints ranged, it was alleged, from non–payment of agreed wages, unlawful deductions, and monetary penalties for absences from work. The motion was unanimously carried after being amended, and resolved that the Malaysian Bar “shall render all necessary and reasonable assistance and support to Charles Hector Fernandez, as deemed fit by Bar Council”.
The final motion addressed related to the quality and administration of justice, and had been proposed by Ragunath Kesavan, Chairman of Bar Council, on behalf of Bar Council. There was lengthy and lively debate on the motion, and several possible amendments were discussed. Members provided examples of egregious behaviour by Judges in the implementation of Key Performance Indicators–related measures, and made impassioned pleas that strong action be taken to object to such incidents. Criticism was also directed at the recent imposition of the e–filing system in the Kuala Lumpur courts. Members debated various suggestions of methods to express the dissatisfaction of the Bar, with some Members expressing concern about the extent to which lawyers would be united, and would come forward, to support a protest on this issue.
When the amended motion was finally put to a vote, it was carried by a large majority, with 285 votes in favour, one against, and two abstentions. It resolved that the Malaysian Bar “has no confidence in the KPI measures introduced by Chief Justice YAA Tun Dato’ Seri Zaki b Tun Azmi, which do not serve the interest of justice and litigants, and calls upon him to immediately withdraw the same, failing which the Malaysian Bar directs the Bar Council to take appropriate steps to protest.”
As the AGM drew to a close, Ambiga Sreenevasan, past President of the Bar, moved a vote of thanks to the Chairman for having handled his position extremely well “during a difficult time”, the past two terms. She lauded him on having successfully seen Yayasan Bantuan Guaman Kebangsaan to fruition, and described it as “one of the crowning jewels of the Malaysian Bar”.
A total of 617 Members attended the AGM, which was adjourned at 2:25 pm.
In the first Bar Council meeting held immediately after the AGM, the following Office Bearers were elected for the 2011/2012 term:
| President | : Lim Chee Wee |
| Vice–President | : Christopher Leong |
| Secretary | : Tony Woon Yeow Thong |
Steven Thiruneelakandan was appointed as Treasurer.
The remaining 32 members of the incoming Bar Council are:
Anand Ponnudurai
Andrew Khoo Chin Hock
George Varughese
Hendon Mohamed
Kuthubul Zaman Bukhari
Low Beng Choo
Ragunath Kesavan
Richard Wee Thiam Seng
Sulaiman Abdullah
Syamsuriatina Ishak
Yasmeen Hj Mohd Shariff
S Gunasegaran (Johore)
K Mohan K Kumaran (Johore)
Ahmad Taufiq Baharum (Kedah/Perlis)
Rao Suryana Abdul Rahman (Kedah/Perlis)
Aziz Haniff (Kelantan)
Aaron Abraham (Kelantan)
Brendan Navin Siva (Kuala Lumpur)
Dipendra Harshad Rai (Kuala Lumpur)
Ng Kong Peng (Malacca)
Desmond Ho Chee Cheong (Malacca)
Zainuritha–Alfa Datuk Abu Hassan (Negeri Sembilan)
Hon Kai Ping (Pahang)
Sarengapani K Rajoo (Pahang)
Mad Diah Endut (Perak)
Shamsuriah Sulaiman (Perak)
Gnasegaran Egamparam (Penang)
Murelidaran Navaratnam (Penang)
Kanarasan Ghandinesen (Selangor)
Rajpal Singh Mukhtiar Singh (Selangor)
Amirruddin Abu Bakar (Terengganu)
Mukhtar Abdullah (Terengganu)
Motion regarding quality and the administration of justice
(Proposed by Ragunath Kesavan (Chairman, Bar Council), on behalf of the Bar Council, dated 4 Mar 2011)
WHEREAS:
(1) The administration of justice has for many years been inefficient, encumbered by the slow disposal of cases and over–burdened with an ever–increasing backlog resulting in injustice or in justice delayed, and hindered by poor quality of judgments and judicial decisions;
(2) The Judiciary has introduced, in the last two years, various measures to clear the backlog, in particular performance measures which emphasise the number and speed of disposal of cases, otherwise known as Key Performance Indicators (“KPI”);
(3) The Malaysian Bar understands that such KPI may include a minimum number of applications, trials and sitting hours to be performed within a prescribed period of time by Judges, Sessions Court Judges, Magistrates and Judicial Officers;
(4) Arising from the various problems and injustices caused by the strict observance of the KPI, the Malaysian Bar unanimously resolved at the EGM held on 12 December 2009 that, amongst others:
(Proposed by Ragunath Kesavan (Chairman, Bar Council), on behalf of the Bar Council, dated 4 Mar 2011)
WHEREAS:
(1) The administration of justice has for many years been inefficient, encumbered by the slow disposal of cases and over–burdened with an ever–increasing backlog resulting in injustice or in justice delayed, and hindered by poor quality of judgments and judicial decisions;
(2) The Judiciary has introduced, in the last two years, various measures to clear the backlog, in particular performance measures which emphasise the number and speed of disposal of cases, otherwise known as Key Performance Indicators (“KPI”);
(3) The Malaysian Bar understands that such KPI may include a minimum number of applications, trials and sitting hours to be performed within a prescribed period of time by Judges, Sessions Court Judges, Magistrates and Judicial Officers;
(4) Arising from the various problems and injustices caused by the strict observance of the KPI, the Malaysian Bar unanimously resolved at the EGM held on 12 December 2009 that, amongst others:
(a) Justice must never give way to speed;
(b) Qualitative justice must be the overall objective in any judicial initiative or reform; and
(c) Members of the Judiciary be called upon to exercise their judicial discretion fairly, sensibly and courageously in all instances, to achieve both procedural and substantive justice.
(b) Qualitative justice must be the overall objective in any judicial initiative or reform; and
(c) Members of the Judiciary be called upon to exercise their judicial discretion fairly, sensibly and courageously in all instances, to achieve both procedural and substantive justice.
(5) Since then, various meetings were held between the Bar Council and the Judiciary and consensus was achieved in certain substantive and procedural matters (most of which are set out in Appendix A herein), including but not limited to:
(a) Quality of decision–making process
It is obvious that Judges must read the court file (including any written submissions filed), listen to oral arguments, deliberate by considering the facts and the law as presented, and then make a decision with grounds of judgment.
(b) Court sitting
Courts should only sit during official court times from 9:00 am to 5:00 pm. A matter may only be continued after 5:00 pm with the consent of the parties involved, and if it is really necessary and expedient to do so.
(c) Striking out
Cases would not be struck off until the close of sitting for the day.
(d) Fixing of hearing dates
It is obvious that Judges must read the court file (including any written submissions filed), listen to oral arguments, deliberate by considering the facts and the law as presented, and then make a decision with grounds of judgment.
(b) Court sitting
Courts should only sit during official court times from 9:00 am to 5:00 pm. A matter may only be continued after 5:00 pm with the consent of the parties involved, and if it is really necessary and expedient to do so.
(c) Striking out
Cases would not be struck off until the close of sitting for the day.
(d) Fixing of hearing dates
Judges must use their discretion appropriately when fixing hearing dates and courts must ensure that the dates fixed are suitable for all parties (which obviously includes the counsel).
e) Change of hearing dates and postponements
(i) Hearing dates for cases, which have already been fixed by court with the agreement of counsel, should not be brought forward without the consent of the parties involved; and
(ii) In the exceptional circumstances where court intends to change a hearing date that has been fixed, lawyers must be informed in writing at least one month in advance and the change of date can only be done with the consent of all parties.
(ii) In the exceptional circumstances where court intends to change a hearing date that has been fixed, lawyers must be informed in writing at least one month in advance and the change of date can only be done with the consent of all parties.
(6) The Malaysian Bar is extremely concerned and disappointed that notwithstanding consensus on these issues, there are some Judges, Sessions Court Judges, Magistrates and Judicial Officers who refuse to observe the consensus reached between the Bar and the Judiciary and, in so doing, deny to a litigant his/her right to a full and fair hearing/trial which must by necessity include the litigant’s right to counsel of choice. The instances of judicial misbehaviour include:
(a) Striking out of cases before the end of the sitting, or worse, before the actual time of hearing;
(b) Fixing of hearing dates without regard to availability of counsel;
(c) Refusing to grant adjournments when counsel has a valid reason for it, for example a medical certificate;
(d) Making a decision without reading the court papers and submissions, and without adequate deliberation; and
(e) Delivering decisions without grounds of judgment.
(b) Fixing of hearing dates without regard to availability of counsel;
(c) Refusing to grant adjournments when counsel has a valid reason for it, for example a medical certificate;
(d) Making a decision without reading the court papers and submissions, and without adequate deliberation; and
(e) Delivering decisions without grounds of judgment.
In connection therewith, the Malaysian Bar is also disappointed and concerned that inadequate action is being taken against Judges, Sessions Court Judges, Magistrates and Judicial Officers who misbehave.
(7) The Malaysian Bar also notes the deterioration of trust and respect between some Judges, Sessions Court Judges, Magistrates and Judicial Officers, and Members of the Bar.
IT IS HEREBY RESOLVED THAT:
The Malaysian Bar has no confidence in the KPI measures introduced by Chief Justice YAA Tun Dato’ Seri Zaki b Tun Azmi, which do not serve the interest of justice and litigants, and calls upon him to immediately withdraw the same, failing which the Malaysian Bar directs the Bar Council to take appropriate steps to protest.
The motion, as amended, was put to a vote and carried by a majority (285 votes in favour, one against, and two abstentions).
Appendix A
Circular No 041/2011
Dated 1 Mar 2011
To all Members of the Malaysian Bar
Meetings Between Bar Council and the Judiciary During the 2010/2011 Term
Bar Council has had several meetings with YAA Tun Dato’ Seri Zaki b Tun Azmi, the Chief Justice of Malaysia (“CJ”), and members of the Judiciary during the 2010/2011 term to discuss issues relating to court matters and the administration of justice.
On 3 June 2010, the Office Bearers and some Council Members, met with the CJ, YA Tan Sri Dato’ Zulkefli b Ahmad Makinudin (Judge of the Federal Court), YA Tan Sri James Foong Cheng Yuen (Judge of the Federal Court; Managing Judge of the High Court Civil and Family Divisions), YA Dato’ Seri Md Raus b Sharif (Judge of the Federal Court; Managing Judge of High Court Commercial and New Commercial Courts Divisions), YA Datuk Haji Suriyadi b Halim Omar (Judge of the Court of Appeal) and YA Datuk Ramly b Haji Ali (Judge of the Court of Appeal).
On 29 Sept 2010, Bar Council representatives had another meeting with the Judiciary, comprising the CJ, YAA Tan Sri Dato’ Seri Alauddin b Dato’ Mohd Sheriff (President of the Court of Appeal), YAA Tan Sri Arifin b Zakaria (Chief Judge of Malaya), YA Tan Sri Dato’ Zulkefli b Ahmad Makinudin (Judge of the Federal Court), YA Dato’ Seri Md Raus b Sharif (Judge of the Federal Court; Managing Judge of High Court Commercial and New Commercial Courts Division) and YA Dato’ Abdull Hamid b Embong (Judge of the Federal Court; Shah Alam Managing Judge).
The third meeting was a dialogue that was held on 8 Jan 2011 between Members of the Bar and approximately 50 members of the Judiciary consisting of the CJ, the Managing Judges of both Kuala Lumpur and Selangor Courts, and Judges from the Federal Court, Court of Appeal, High Court and Subordinate Courts.
The following are the issues agreed upon between the CJ and the Bar at the above meetings:
(1) Court sittings
Courts to begin sitting at 8:30 am and should only sit during official court times from 8:30 am to 5:00 pm. A matter may only be continued after 5:00 pm with the consent of the parties involved and if it is really necessary and expedient to do so. Cases would also not be struck off until the close of sitting for the day.
(2) Staggered hearing times
In view of court sittings beginning at 8:30 am, the CJ has agreed to move towards staggered hearing times to assist lawyers. However, lawyers are reminded by the CJ to attend court punctually for the hearing of their matters to avoid delaying the courts’ proceedings as this would affect the rest of the cases on the courts’ staggered hearing list.
Members are requested to provide feedback to Bar Council on the effectiveness and implementation of the above.
In view of court sittings beginning at 8:30 am, the CJ has agreed to move towards staggered hearing times to assist lawyers. However, lawyers are reminded by the CJ to attend court punctually for the hearing of their matters to avoid delaying the courts’ proceedings as this would affect the rest of the cases on the courts’ staggered hearing list.
Members are requested to provide feedback to Bar Council on the effectiveness and implementation of the above.
(3) Fixing of hearing dates
The CJ agreed that Judges must use their discretion appropriately when fixing hearing dates and the Courts must ensure that the dates fixed are suitable for all parties. Should any Member face problems with this, please notify Bar Council immediately.
The CJ agreed that Judges must use their discretion appropriately when fixing hearing dates and the Courts must ensure that the dates fixed are suitable for all parties. Should any Member face problems with this, please notify Bar Council immediately.
(4) Change of hearing dates and postponements
The CJ agreed that:
The CJ agreed that:
(a) hearing dates for cases, which have already been fixed by court with the agreement of counsel, should not be brought forward without the consent of the parties involved;
(b) in the exceptional circumstances where the court intends to change a hearing date that has been fixed, lawyers must be informed in writing at least one month in advance and the change of date can only be done with the consent of all parties; and
(c) Judges should give due and appropriate consideration to reasons of a customary and/or religious nature provided by lawyers in requesting for postponements where the hearing date was fixed by the court without the benefit of counsel’s free dates.
(b) in the exceptional circumstances where the court intends to change a hearing date that has been fixed, lawyers must be informed in writing at least one month in advance and the change of date can only be done with the consent of all parties; and
(c) Judges should give due and appropriate consideration to reasons of a customary and/or religious nature provided by lawyers in requesting for postponements where the hearing date was fixed by the court without the benefit of counsel’s free dates.
(5) Calling of witness/expert witness
Failure of a subpoenaed witness to attend court should not be a ground for court to instruct a party to close its case and Judges must exercise their discretion properly. With regard to expert witnesses, in particular medical doctors, for running down matters, parties may request to fix in advance the date and time when the said witness is to be called during case management or mention date.
The CJ further advised that lawyers serve the necessary documents on the specialist/expert witness as soon as possible and preferably within a week. The onus would be on the lawyer to ensure that the specialist/expert witness submits their report on time.
Failure of a subpoenaed witness to attend court should not be a ground for court to instruct a party to close its case and Judges must exercise their discretion properly. With regard to expert witnesses, in particular medical doctors, for running down matters, parties may request to fix in advance the date and time when the said witness is to be called during case management or mention date.
The CJ further advised that lawyers serve the necessary documents on the specialist/expert witness as soon as possible and preferably within a week. The onus would be on the lawyer to ensure that the specialist/expert witness submits their report on time.
(6) Oral or written submissions
Interlocutory matters should be disposed of by way of oral submissions unless written submissions are requested, and agreed to, by the parties. Oral clarification should be allowed even when parties have filed written submissions.
Interlocutory matters should be disposed of by way of oral submissions unless written submissions are requested, and agreed to, by the parties. Oral clarification should be allowed even when parties have filed written submissions.
(7) Mediation practices
Practice Direction 5/2010 on Mediation was issued to all Courts in Malaysia and took effect from 16 Aug 2010. This Practice Direction clarifies the basic guidelines on conducting mediation.
(8) Requests by court staff and/or Judiciary for money
If any such request is made to Members of the Bar by the Judiciary or any member of the court staff, the CJ should be notified at once so that immediate and appropriate action may be taken.
Members are advised to immediately inform Bar Council if any Judge or Judicial Officer fails to adhere to the aforesaid points of agreement.
Further meetings will be held between Bar Council and the Judiciary. As such, we welcome comments from our Members.
Please submit your input by email to nikwaheeda@malaysianbar.org.my or by fax to 03–2032 2043. Please do not hesitate to contact Nik Waheeda Nik Kamarulzaman by telephone at 03–2031 3003 ext 142 or 03–2032 4498, should you require any clarification.
Thank you.
Ragunath Kesavan
President
Malaysian Bar
Motion regarding the Advocates and Solicitors Disciplinary Board
(proposed by MS Murthi and jointly seconded by 40 Members of the Bar, dated 1 Mar 2011)
1. Whereas the Legal Profession Act 1976 was amended with far reaching effect by the Legal Profession (Amendment) Act 1976 (2006 Amendment) without any consultation with the members of the Bar or even their knowledge.
2. Whereas 3243 members of the Bar attended an Extra–Ordinary General Meeting of the Malaysia Bar in protest against the said 2006 Amendments and passed a resolution to set up an Ad–Hoc Committee to receive and consider representations from the members and to file a report thereof to the Bar Council.
3. Whereas the Ad–Hoc Committee was chaired by Justice (R) V.C George and received 29 written representations from the members of the Bar and the representations were reflected in the Committee’s Report dated 15 November 2006.
4. Whereas one of the important recommendation was on Section 103E(8). The Committee recommended the repeal of subsection (8) of Section 103E which reads:–
“The Disciplinary Board shall have the right to appear in and address any High Court, the Court of Appeal or Federal Court hearing an Appeal under this section by an advocate and Solicitor whether or not the Advocate and Solicitor is a member of the Disciplinary Board or the Bar Council”.
5. The Ad–Hoc Committee justified its recommendation in the following words:
(proposed by MS Murthi and jointly seconded by 40 Members of the Bar, dated 1 Mar 2011)
1. Whereas the Legal Profession Act 1976 was amended with far reaching effect by the Legal Profession (Amendment) Act 1976 (2006 Amendment) without any consultation with the members of the Bar or even their knowledge.
2. Whereas 3243 members of the Bar attended an Extra–Ordinary General Meeting of the Malaysia Bar in protest against the said 2006 Amendments and passed a resolution to set up an Ad–Hoc Committee to receive and consider representations from the members and to file a report thereof to the Bar Council.
3. Whereas the Ad–Hoc Committee was chaired by Justice (R) V.C George and received 29 written representations from the members of the Bar and the representations were reflected in the Committee’s Report dated 15 November 2006.
4. Whereas one of the important recommendation was on Section 103E(8). The Committee recommended the repeal of subsection (8) of Section 103E which reads:–
“The Disciplinary Board shall have the right to appear in and address any High Court, the Court of Appeal or Federal Court hearing an Appeal under this section by an advocate and Solicitor whether or not the Advocate and Solicitor is a member of the Disciplinary Board or the Bar Council”.
5. The Ad–Hoc Committee justified its recommendation in the following words:
“The Committee further recommends that sub–section (8) be deleted, as an adjudicating body should not descend into the arena”.
6. The concluding remarks of the Ad–Hoc Committee at paragraph 49 were very appropriate, and it reads as follows:
“49. We trust that our recommendations will as a whole enable a balance to be struck between the need for the Malaysian Bar to maintain a high degree of professionalism and a speedy system of self–regulation and discipline, having in mind the interest of the profession and the public interest”.
7. Whereas the Bar Council vide its circular 51/2007 informed the members that it has adopted the report of Ad–Hoc Committee with minor Amendments thereto.
8. Whereas the Disciplinary Board in its 26 page response to the Bar Council’s Proposed Further Amendments, objected to the Further Amendments to Section 76, 93, 94, 98, 101C (i), 101D, 103E(2), 103E(8). It justified its disagreement, with the Bar Council’s Proposed Amendment to Section 103E(8), in these words:
“13.3.1. The reason for sub–section(8) is that there are cases where the Bar Council is not involved in the appeal and the complaint really is over the conduct of the proceedings in the Disciplinary Committee or Disciplinary Board. In such cases it is necessary for the Disciplinary Board to put forward the true picture and not to allow, the complaint to succeed by default”.
9. Whereas there was a meeting on 06.03.2008 between the Bar Council, and the Disciplinary Board represented by the Chairman of the Board, and Mr. Ragunath Kesavan representing the Council, wherein a consensus was reached by the 2 parties and the Proposed Draft Amendments was duly finalized, and forwarded by the Council to the Attorney General Chambers shortly thereafter.
10. Whereas, the jurisprudence behind the proposed appeal of sub–section(8) of Section 108E, having been accepted by the Disciplinary Board and the Bar Council, the Amendment was also approved by the Attorney General.
11. Whereas the Attorney General Chambers by a letter dated 30.01.2009 forwarded a Draft Legal Profession (Amendment) Bill to the various stakeholders. With reference to the sub–section 8 of Section 103E, the Attorney General duly deleted sub–section 8 in the draft Bill. The explanation given by the Attorney General to Parliament should be etched in stone. This is what he said “ sub–section (8) which relates to the Disciplinary Board’s right to appear in and address the High Court and the Appellate Courts in any appeal is also proposed to be deleted, as it does not seem appropriate for an adjudicating body to be embroiled into litigation over its own decision.”
12. Whereas, to borrow the words of the Ad Hoc Committees, “a balance between the interest of the profession and the public interest” was finally established.
13. Whereas the Bar Council has, regrettably, for the last 5 years been unable to see through the Further Amendments passed into law by the Malaysian Parliament.
14. Whereas, despite the moral obligation of the Disciplinary Board to observe the spirit behind the proposal to repeal sub–section (8) of Section 103E, the Disciplinary Board has unrelentingly and consistently appeared at numerous Appeals and pressed the Court to uphold its finding and the sentence despite knowing that as an adjudicating body it should not in the words of Attorney General “be embroiled into litigation over its own decision”.
15. Whereas it is now incumbent on the Malaysian Bar as the Supreme Body of the Legal Profession in this Country to remind the Disciplinary Board to observe the philosophy underpinning the proposed deletion of sub–section 8 of Section 103E.
Now it is hereby resolved:
(i) That the Malaysian Bar calls upon the Disciplinary Board, as a constituent body of the Legal Profession, to respect the wishes of the Malaysian Bar, Bar Council, the Board itself and the Attorney General and henceforth refrain itself from “getting embroiled into any appeal over its own decision”.
(ii) That the Malaysian Bar calls upon the Bar Council to pursue vigorously the Further Amendments as recommended by the V.C George Committee Report and accepted by the various stakeholders, so that the members are not subjected to unnecessary pressure by frivolous complaints made against them.
(ii) That the Malaysian Bar calls upon the Bar Council to pursue vigorously the Further Amendments as recommended by the V.C George Committee Report and accepted by the various stakeholders, so that the members are not subjected to unnecessary pressure by frivolous complaints made against them.
The motion was withdrawn.
Motion on inquiries into deaths
(Proposed by Andrew Khoo Chin Hock (Chairperson, Bar Council Human Rights Committee), on behalf of the Committee, and seconded by Brendan Navin Siva (Co–Deputy Chairperson, Bar Council Human Rights Committee), dated 4 Mar 2011)
WHEREAS the law relating to inquiries into deaths is set out in Part VIII Chapter XXXII Sections 328 to 341A of the Criminal Procedure Code;
WHEREAS recent inquiries into deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts;
WHEREAS such “open” verdicts fail to adequately identify the cause of death or identify those responsible for causing such deaths, to the disappointment and dissatisfaction not only of family members but also society at large, and at the cost of undermining public confidence in the system of justice in this country; and
WHEREAS a Parliamentary Select Committee on the Penal Code and Criminal Procedure Code had in 2006 called for the introduction of a Coroner’s Act and the establishment of a Coroner’s Court;
NOW IT IS HEREBY RESOLVED THAT:
The Malaysian Bar calls on the Government to:
The motion was unanimously carried.
(Proposed by Andrew Khoo Chin Hock (Chairperson, Bar Council Human Rights Committee), on behalf of the Committee, and seconded by Brendan Navin Siva (Co–Deputy Chairperson, Bar Council Human Rights Committee), dated 4 Mar 2011)
WHEREAS the law relating to inquiries into deaths is set out in Part VIII Chapter XXXII Sections 328 to 341A of the Criminal Procedure Code;
WHEREAS recent inquiries into deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts;
WHEREAS such “open” verdicts fail to adequately identify the cause of death or identify those responsible for causing such deaths, to the disappointment and dissatisfaction not only of family members but also society at large, and at the cost of undermining public confidence in the system of justice in this country; and
WHEREAS a Parliamentary Select Committee on the Penal Code and Criminal Procedure Code had in 2006 called for the introduction of a Coroner’s Act and the establishment of a Coroner’s Court;
NOW IT IS HEREBY RESOLVED THAT:
The Malaysian Bar calls on the Government to:
(1) adopt and immediately implement the recommendation of the Parliamentary Select Committee on the Penal Code and the Criminal Procedure Code to introduce a Coroner’s Act and to establish a Coroner’s Court;
(2) conduct a comprehensive review of the manner in which inquiries into deaths are undertaken;
(3) hold nationwide public inquiries and invite both oral and written submissions and feedback from individual members the public, and from law enforcement agencies, non–governmental and other organisations, with regard to drawbacks and shortcomings in the present system of inquiries into deaths;
(4) demand explanations from the relevant authorities as to why deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, are not always made the subject of an immediate and automatic public inquiry;
(5) consider the dire need to amend existing laws and procedures in order to improve the actual conduct of inquiries into deaths, the scope of such inquiries, the verdicts available to a magistrate upon the conclusion of an inquiry, and matters ancillary to these issues;
(2) conduct a comprehensive review of the manner in which inquiries into deaths are undertaken;
(3) hold nationwide public inquiries and invite both oral and written submissions and feedback from individual members the public, and from law enforcement agencies, non–governmental and other organisations, with regard to drawbacks and shortcomings in the present system of inquiries into deaths;
(4) demand explanations from the relevant authorities as to why deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, are not always made the subject of an immediate and automatic public inquiry;
(5) consider the dire need to amend existing laws and procedures in order to improve the actual conduct of inquiries into deaths, the scope of such inquiries, the verdicts available to a magistrate upon the conclusion of an inquiry, and matters ancillary to these issues;
(6) provide better training to magistrates and prosecutors so as to equip them with greater knowledge and understanding to preside over and conduct inquiries into deaths; and
(7) make further changes and amendments to laws and procedures to ensure that full inquiries are carried out in respect of all deaths of persons which occur whilst in the custody of, or in or around the premises of, law enforcement agencies, and to strengthen and improve the system of inquiries into deaths in this country.
(7) make further changes and amendments to laws and procedures to ensure that full inquiries are carried out in respect of all deaths of persons which occur whilst in the custody of, or in or around the premises of, law enforcement agencies, and to strengthen and improve the system of inquiries into deaths in this country.
The motion was unanimously carried.
Proposed motion calling upon the Government of Malaysia to regulate the will writing enterprises/agencies in Malaysia
(Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011)
Preamble:–
Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;
Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;
Recognising the current practise where Will Writers may not be necessarily legally trained.
The Motion
The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to drafts wills for remuneration.
The motion, as amended, was unanimously carried.(Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011)
Preamble:–
Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;
Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;
Recognising the current practise where Will Writers may not be necessarily legally trained.
The Motion
The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to drafts wills for remuneration.
Motion regarding the legal suit against Charles Hector Fernandez
(Proposed by M Rajkumar and seconded by Gladys Liew Kim Leng, dated 4 Mar 2011)
WHEREAS:–
1. Having noted that the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, wherein, amongst others states in Article 1 that “Everyone has the right to individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international level”.
2. Article 6 of the said UN Declaration do also specifically state that, “Everyone has the right, individually and in association with others … [to] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms…”
3. Having noted also that lawyers have a statutory obligation reflected in the Legal Profession Act to uphold the cause of justice without fear or favour.
4. Charles Hector Fernandez, a human rights defender and activist of more than 20 years, and also a lawyer, being also a former member of the Bar Council, is alleged to have caused to publish, impart and disseminate to others information which he received from 31 migrant workers of Burmese nationality, who allegedly were at the material time working in a factory in Selangor.
5. The information he received was with regards to alleged violations of human rights and worker rights and alleged unfair treatment of the said workers.
6. Noting also that Charles Hector did firstly send an email on 8/2/2011 to the said company about the information received, giving a reasonable opportunity for the company to clarify matters, and after waiting for a reasonable time for a response, he did cause the information received to be posted on the Charles Hector Blog at www.charleshector.blogspot.com.
7. A Media Statement concerning the human rights violation of the said workers was also issued on 11/2/2011, whereby the number of organizations and civil society groups that jointly issued the said statement now stands at more than 80.
8. In response, the Company threatened legal proceedings and thereafter commenced a suit on 14/2/2011 against Charles Hector, a person who had merely highlighted the alleged human rights violations. Such action is deplorable, and may put fear/deter and/or have a negative impact on other human rights defenders, organizations, ‘whistle blowers’ and other individuals who come into information and/or allegations of such violations and cause them to refrain from acting on such information. This will certainly also cause greater injustice especially when these human rights violations affect the most marginalized in our society, including workers and migrant workers, who do largely depend on others to come to their defence and assistance.
9. Noting also that public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, Human Rights Commission of Malaysia Act 1999, and Criminal Procedure Code.
10. The Company has proceeded to file a suit against the person who highlighted the issue to them and to the public.
11. Noting also that a legal suit has been filed, the Company being the Plaintiff can at any time cause to withdraw the said legal action against Charles Hector.
12. Without touching on the validity and/or sustainability of the cause of action and/or the right of the company to commence the legal suit, in the interest of justice, recognizing also the right to freedom of expression and/or opinion, respecting also the inherent principle that encourages persons having any information about alleged violations of rights to disclose it, it is felt that it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and do the needful to ensure that all rights of workers that work in the company are not violated, and justice is upheld.
THEREFORE, it is hereby resolved that:–
A. The Malaysian Bar shall render all necessary and reasonable assistance and support to Charles Hector Fernandez, as deemed fit by Bar Council.
B. That the Malaysian Bar do the needful research and submit proposals for the enactment of new laws and/or the amendment of existing law that will protect all ‘whistle blowers’ and human rights defenders that highlight human rights violations allegedly propagated by State and non–State actors against persons in Malaysia, both from the perspective of civil and/or criminal liability having regard, amongst others, to the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
The motion, as amended, was unanimously carried.
(Proposed by M Rajkumar and seconded by Gladys Liew Kim Leng, dated 4 Mar 2011)
WHEREAS:–
1. Having noted that the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, wherein, amongst others states in Article 1 that “Everyone has the right to individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international level”.
2. Article 6 of the said UN Declaration do also specifically state that, “Everyone has the right, individually and in association with others … [to] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms…”
3. Having noted also that lawyers have a statutory obligation reflected in the Legal Profession Act to uphold the cause of justice without fear or favour.
4. Charles Hector Fernandez, a human rights defender and activist of more than 20 years, and also a lawyer, being also a former member of the Bar Council, is alleged to have caused to publish, impart and disseminate to others information which he received from 31 migrant workers of Burmese nationality, who allegedly were at the material time working in a factory in Selangor.
5. The information he received was with regards to alleged violations of human rights and worker rights and alleged unfair treatment of the said workers.
6. Noting also that Charles Hector did firstly send an email on 8/2/2011 to the said company about the information received, giving a reasonable opportunity for the company to clarify matters, and after waiting for a reasonable time for a response, he did cause the information received to be posted on the Charles Hector Blog at www.charleshector.blogspot.com.
7. A Media Statement concerning the human rights violation of the said workers was also issued on 11/2/2011, whereby the number of organizations and civil society groups that jointly issued the said statement now stands at more than 80.
8. In response, the Company threatened legal proceedings and thereafter commenced a suit on 14/2/2011 against Charles Hector, a person who had merely highlighted the alleged human rights violations. Such action is deplorable, and may put fear/deter and/or have a negative impact on other human rights defenders, organizations, ‘whistle blowers’ and other individuals who come into information and/or allegations of such violations and cause them to refrain from acting on such information. This will certainly also cause greater injustice especially when these human rights violations affect the most marginalized in our society, including workers and migrant workers, who do largely depend on others to come to their defence and assistance.
9. Noting also that public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, Human Rights Commission of Malaysia Act 1999, and Criminal Procedure Code.
10. The Company has proceeded to file a suit against the person who highlighted the issue to them and to the public.
11. Noting also that a legal suit has been filed, the Company being the Plaintiff can at any time cause to withdraw the said legal action against Charles Hector.
12. Without touching on the validity and/or sustainability of the cause of action and/or the right of the company to commence the legal suit, in the interest of justice, recognizing also the right to freedom of expression and/or opinion, respecting also the inherent principle that encourages persons having any information about alleged violations of rights to disclose it, it is felt that it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and do the needful to ensure that all rights of workers that work in the company are not violated, and justice is upheld.
THEREFORE, it is hereby resolved that:–
A. The Malaysian Bar shall render all necessary and reasonable assistance and support to Charles Hector Fernandez, as deemed fit by Bar Council.
B. That the Malaysian Bar do the needful research and submit proposals for the enactment of new laws and/or the amendment of existing law that will protect all ‘whistle blowers’ and human rights defenders that highlight human rights violations allegedly propagated by State and non–State actors against persons in Malaysia, both from the perspective of civil and/or criminal liability having regard, amongst others, to the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
The motion, as amended, was unanimously carried.