The Early beginnings of the Bar Council and the Struggles of the Bar
A semblance of the present day Bar Council was established about 92 years ago covering the legal practitioners in the Federated Malay States vide Advocates & Solicitors Ordinance 1914 (FMS No. 22/1914). This was replaced by the Advocates & Solicitors Ordinance 1940. The Unfederated Malay States like Johore had their own Enactments like the Advocates & Solicitors Enactment of Johore. The Solicitors in the Straits Settlements of Malacca and Penang together with Singapore were covered by the Advocates & Solicitors Ordinance of the Straits Settlements.
After the Japanese Occupation, the Advocates & Solicitors Ordinance 1947 replaced all the statutes covering the Unfederated and Federated Malay States and the Straits Settlements of Malacca and Penang. For our purpose the 1947 Ordinance can be referred to as the starting point that established the 1st Bar Council covering Malaya. It was the 1st time a self–elected and self–regulated Bar Council was established. But its role was somewhat limited to:
– representing the Bar in matters affecting the legal profession as a whole
– make rules regarding practice and etiquette of the profession
– examine and report on current legislation
– deal with admission and entry requirements into the profession
– oversee standards and discipline among members of the Bar
But the Legal Profession Act 1976 which replaced the 1947 Ordinance provided for a truly independent Bar. It is important that all of you are fully conversant with the objects and powers of the Malaysian Bar which are embodied in S.42. In particular you should be familiar with S42 (1) a, b, d and e (refer to the Act).
The Bar Council represents the Malaysian Bar at:
– the Qualifying Board which decides on the qualification for entry into the profession.
– the Disciplinary Board – all Advocates & Solicitors are subject to the control of this Board in all matters relating to discipline.
– the Solicitors Costs Committee which makes general orders regulating the remuneration of Advocates & Solicitors in respect of non–contentious business.
– the Rules Committee which is empowered to make rules regulating the procedures in court.
Singapore lawyers could freely practice in West Malaysia until its doors were closed on 31st December 1970.
Important events and struggles of the Bar
With the introduction of the Legal Profession Act 1976 which came into force on 1st June 1977, a truly independent Bar governed by an independent and elected council was established.
The Malaysian Bar is committed to upholding the Rule of Law, promoting a strong and independent Judiciary and an independent Bar ever vigilant to act in all matters of public interest without fear or favour and without regard to its own interests.
The Malaysian Bar through its governing body the Bar Council speaks loud and clear in defence of freedom and liberty, Rule of Law, Human Rights and Justice, often at the peril of its own officials.
I’ll give a brief account of a few important events and developments where the Bar and its members had to act at the risk of their own personal liberty.
Security Cases Trial
The Bar vehemently opposed the passing of the Essential (Security Cases) Regulations 1975 (ESCAR) which was promulgated to amend the procedural and evidential rules in relation to trials for offences against national interest. The Regulations brought draconian changes in the basic rules of evidence and the judicial discretion of the courts in meting out sentence. The Bar at its AGM in 1976 censured the Attorney–General for making disparaging remarks on the Bar’s stand.
The first case under ESCAR was the trial of a juvenile under the ISA for being in illegal possession of firearms. The 14 years old boy was given the mandatory death sentence as the judge held that in the eyes of the law, if charged under the ISA, there is no difference between a juvenile and an adult. This case, though the boy’s sentence was commuted, demonstrated the repressive nature of ESCAR which was abhorrent to the norms of justice and against the rule of law.
In October 1977 Bar held an EGM to discuss ESCAR and resolved to advise all members of the Bar not to appear in trials under the ESCAR. This principled stand of the Bar resulted in the amendments to the LPA in 1978 as follows:
1) introducing Pt II A – Special Provisions for admission of any person who satisfies the AG of requirements spelt out in this Part. This gave the AG the absolute discretion to issue Special Admission Certificates to foreign lawyers and the AG’S discretion cannot be questioned by any court;
2) members of the Bar who are MP’s/ Senators/ State Assemblymen/ Local Authority Councilors/ Trade Union Officials/ persons holding office in political parties were disqualified from serving in the Bar Council/ Bar Committees;
3) similar disqualification was imposed on Bar members with less than 7 years standing at the Bar;
4) the quorum requirement for General Meetings was raised from 50 to 1/5 of the total number;
5) any questions at the AGM/EGM was to be decided by not less 2/3 of the members present and voting.
(For a fuller account of the Bar’s boycott see Rahim Saaid’s article – The October Boycott: It’s Causes, Consequences and Implications for Legal Practice in Malaysia (1981) INSAF XIV No. 1 at 23)
Note: The Bar’s action to strike down part of the amendments relating to the 7 year rule on grounds of violating the equality provisions enshrined in the Federal Constitution was rejected by the Supreme Court (see Malaysian Bar v Government of Malaysia (1987) 2 MLJ 165)
Amendments to Societies Act, 1966 (amendment 1981)
Another significant event in the annals of the Bar was the protest march of lawyers wearing black armbands to Parliament House to register the Bar’s protest and present to memoranda to the MP’s and the Home Minister on 7th April 1981 at 5.30 pm. This was preceded by the EGM on 4th April, 1981 to discuss the amendments. In June 1982, 42 members of the Bar involved in the march were charged for participating in an unlawful assembly. They were found guilty, admonished and discharged under s173A(ii)(a) of the Criminal Procedure Code.
Fearless Lawyers In Defence Of The Rule Of Law
In 1984 Sim Kie Chon was convicted under the ISA provisions and sentenced to death. His lawyer Karam Singh sued the Pardons Board and the Government, for refusing the plea of clemency, on the grounds that a former Cabinet Minister’s (Dato Mokhtar Hashim) death sentence was commuted. Sim was charged for illegal possession of a revolver and 5 rounds of ammunition in 1981 and under the ISA death sentence is mandatory. Dato Mokthar intentionally killed his victim with his pistol which he possessed legally. He was charged for murder under the Penal Code. Sim’s action was founded on the constitutional guarantee of equality and non– discrimination. When Sim’s appeal was dismissed by the Supreme Court Karam boldly proclaimed that the decision was a nullity because “I was rushed by the Chief Justice into filing the appeal within 3 days instead of the usual 6 weeks”. On the complaint of the C.J., the AG commenced contempt proceedings against Karam who was convicted and fined. Malaysian Bar stood by Karam defending his right to defend his client fearlessly.
The then Vice President of the Malaysian Bar Param Cumaraswamy issued an open appeal to the Pardons Bord to reconsider Sim’s petition for commutation of the death sentence. Param was charged for uttering seditious words in his open letter for stating that “people should not be made to feel that in our society today the severity of the law is only meant for the poor, the meek and the unfortunate whereas the rich, powerful and the influential can somehow seek to avoid the same severity.” Param was acquitted by the High Court after a protracted trial which attracted international attention. Justice Dato’ N.H. Chan ruled the words did not have a seditious tendency.
1988 Judicial Crisis
1988 jolted the entire nation and the international media focused on the involvement of the executive in the affairs of the judiciary, specially the caustic speeches of the Prime Minister inside and outside Parliament. This resulted in the then Lord President Tun Salleh Abbas after a meeting with his brother judges, writing on behalf of the judiciary to the Agong expressing the concern of the judiciary.
The Prime Minister took the offensive role and caused the unprecedented suspension of the head of the judiciary by the Agong and convened a Tribunal under Article 125(3) of the Constitution. Tun Salleh Abbas was found guilty on charges of judicial misbehaviour and unceremoniously dismissed by a panel headed by Tan Sri Hamid Omar the then Chief Justice of Malaya. The irony of this whole episode was that if Tun Salleh was dismissed Tan Sri Hamid would be the immediate successor to the high office of Lord President. Tan Sri Hamid indeed succeeded as Lord President. Throughout this high drama the Bar was in full support of Tun Salleh and held the EGM to convey its stand in no uncertain terms.
There was more drama to this episode. Tun Salleh boycotted the Tribunal and moved the High Court on a Saturday morning to obtain leave to apply for an order prohibiting the Tribunal from sitting. Justice Ajaib Singh after protracting the hearing refused leave at 12.00 noon before the court closed for the day. Counsel for Tun Salleh rushed to the Supreme Court to apply for stay. The senior–most judge of the Supreme Court, Tan Sri Wan Suleiman bin Pawan Teh, immediately convened a sitting of the Supreme Court comprising of 5 judges who unanimously granted an order restraining the Tribunal from submitting its report to the Agong until further notice. All the 5 Supreme Court judges were promptly rewarded with suspension for convening an illegal sitting of the Supreme Court. Other than Wan Suleiman who chaired the panel the other 4 judges were:
– Datuk George Seah Kim Seng
– Tan Sri Haji Mohd Azmi bin Dato Hj Kamarudin
– Tan Sri Dato’ Seri Eusoffee Abdoolcader
– Tan Sri Hamzah bin Hj Mohd Salleh
A second Tribunal was promptly convened on charges of conduct unbecoming of Supreme Court judges. The Tribunal by majority decision found two judges guilty of misbehaviour and the two judges were dismissed. The 2 who joined the ranks of Tun Salleh were:
– Tan Sri Wan Suleiman
– Datuk George Seah
A second EGM of the Bar passed a resolution protesting the Tribunal proceedings and decided to commence contempt action against the Acting Lord President Tan Sri Hamid Omar for alleged obstruction of the sitting of the Supreme Court. The Bar filed an ex–parte application for leave to apply for an order of contempt against the Acting Lord President but was refused. But instead, the Supreme Court granted leave to the Attorney General to bring committal proceedings against the secretary of the Bar, Manjeet Singh Dhillon for contempt for scandalizing the judiciary in the supporting affidavit affirmed by him. He was found guilty and fined by a majority. (See 1991(1) MLJ 168)
The Judicial crisis had an effect on the Annual Bench & Bar Games. The Bench & Bar Games has been held since 1969 between the legal fraternity of Malaysia and Singapore and hosted on alternate years by the Bar Council and the Law Society of Singapore. As a result of the 1988 judicial crisis the Bench & Bar Games was not held in that year. The following year the judiciary was not invited and the games took the format of Malaysia–Singapore Law Games. Only from 1997 the games started again with the participation of the judiciary and reverted to the former name of Bench & Bar Games.
(Note: for a fuller account read 'May Day for Justice’ by Tun Salleh & K. Dass. Also 'Conduct Unbecoming' by Raja Aziz Addruse and the special INSAF Supplement – Vol XX No. 5 for related Papers)
AG’s Threat To The Independence Of The Bar
Yet again the Bar called for an EGM in 1996 when the AG announced that his chambers was in the process of preparing a paper recommending to the government to reform the legal profession to include non–practicing lawyers, government legal officers and law academics in the Bar Council. The Bar, realizing that this would impede the independence of the Bar, submitted a Memorandum on the Independence of the Bar and the Legal Profession in Malaysia (see INSAF Vol XXV pg 1). The EGM unanimously resolved to “strongly oppose any measure to amend the LPA that would have the effect of diluting or impairing the independence of the Malaysian Bar and the Bar Council ”
Thereafter the AG did not pursue his intended reform’.
27 and 28th October 1987 will go down in history as the dark days of democracy. On 27th a number of NGO activists, opposition members of Parliament, politicians and leaders of civic minded groups were arrested and detained under the ISA. On 28th licenses of 4 newspapers including the Star were revoked. The Bar promptly held an EGM and condemned the actions of the government and called for the release of all the ISA detainees or have them charged in court. The Bar also asked for restoration of printing permits of the 4 newspapers and offered legal assistance to the victims.
The Bar took a very strong stand in the manner of arrest, assault and conviction of the former Deputy Prime Minister Anwar Ibrahim. In the course of the trial, Anwar’s team of lawyers were threatened with contempt of court. I was served with a show cause notice on why I should not be cited for contempt of court by the Attorney General for statements attributed to me in the Utusan Malaysia as the Vice–President of the Bar over the refusal to allow the Bar Council to keep a watching brief at the trial. Zainur Zakaria was actually charged and convicted for contempt but it was reversed on appeal. The Bar’s Press Statement issued soon after the conviction and sentence of Anwar by the High Court sets out in a nutshell the concerns of the legal fraternity and the public at large. The court sought a copy of my Press Statement issued in my capacity as the President of the Bar for possible contempt. (see The Bar’s Press Statement dated 17th April, 1999)
The nation was also shocked by the revelation that Anwar was assaulted while in police custody awaiting trial. The Bar responded with a strong public statement on the conduct of the IGP Rahim Nor for his atrocious violent physical abuse of Anwar and the silent witnessing of the episode with folded arms by senior police officers. (see The Bar’s Press Statement dated 17th April, 1999)
When serious allegations of impropriety was leveled against certain members of the Judiciary, the Bar called for an EGM on 20thNovember, 1999 to discuss these allegations with the view of urging the government to appoint a Royal Commission of Inquiry to make such inquiries and recommendations to ensure that the confidence in the Judiciary is fully restored. One Rajasegaran, a member of the Bar commenced an action against the Malaysian Bar and its then President for an injunction to restrain the defendants from holding the EGM. Justice R.K. Nathan allowed the application of the Plaintiff and said that the motion of the Bar attacked on the independence, competence and integrity of the Judiciary. He held that if the meeting is held, it would constitute contempt, breach the sub judice rules, be ultra vires the LPA and Article 125 of the Constitution and members of the Bar including the Plaintiff would open themselves to prosecution under s. 4(1)(a) read together with s. 3(1)(c) of the Sedition Act, 1948. In the climate prevailing then, the action and all the interlocutory applications of the Plaintiff were allowed by the High Court but the Bar’s applications were promptly dismissed. All the appeals of the Bar to the Court of Appeal and the Federal Court on the several decisions of the High Court were dismissed with costs.
Another EGM in 2000 to discuss the conduct and propriety of the Chief Justice who went on vacation with a lawyer was also restrained by Justice Nathan on the application of Rajasegaran. The action is still pending in court. At the hearing of the Bar’s application to recuse the judge, Justice Nathan ordered then President of the Bar Haji Sulaiman Abdullah to show cause why he should not be cited for contempt. However at the hearing the Judge gave the benefit of doubt on the basis of the interpretation given by counsel.
Commonwealth Law Conference1999
The Malayisan Bar made a successful bid at the 10th Commonwealth Law Conference in Cyprus to host the 12th CLC in 1999 in Kuala Lumpur. The Bar Council took great pains and marshaled all resources at its command and hosted a conference that was commended by leaders of various jurisdictions that it was the best organized conference in the history of the Commonwealth Lawyers Association. Delegates included Chief Justices, Attorneys General, Solicitors General, academics, Bar leaders, prominent practitioners and distinguished members interested in the legal profession and the law. A total of 162 distinguished and eminent speakers presented papers at the conference of whom 23 were Malaysian. About 1400 delegates from several Commonwealth countries and a few from outside the Commonwealth attended the conference. More than 2000 guests witnessed the opening ceremony attended by the Prime Minister and the Chief Justice of Malaysia. I had the privilege of addressing the conference at the opening ceremony on behalf of the Malaysian Bar. (See Vol XXVIII No. 3 INSAF at 10)
Objection to Academy of Law Bill
The government introduced the Academy of Law Bill 2002 which the Bar vehemently opposed as the Bill sought to duplicate and dilute the functions of the Bar Council. An EGM was convened in 2002 and resolved to take legal action to challenge the Bill. However the government has not taken any further step to table the Bill in Parliament.
Bars concern for Societal Needs
The Bar Council started the 1st Legal Aid Centre in Kuala Lumpur in 1982 on the initiative of Ms Chew Swee Yoke the pioneer of Legal Aid and the 1st Chairperson of the Bar Council Legal Aid Committee.1 The 1983 AGM by majority vote decided to levy compulsory subscription of RM100 towards the Legal Aid Scheme. We are the only Bar association in the world to administer a legal aid scheme for impecunious persons. It was therefore appropriate the Malaysian Bar Council hosted the 1st World Legal Aid Conference in Kuala Lumpur in 1995. The Malacca Legal Aid Centre was launched on 7th October, 1989.
Discipline of Lawyers
In early 1980’s there was intense adverse publicity in the media about lawyers. The press blew out of proportion the acts of few recalcitrant lawyers involved in cheating clients and committing fraud. The lawyer bashing stance was so frequent that the Bar decided to set right this unfair public image of lawyers. In order to address this situation the Bar Council in 1985 appointed a high powered committee chaired by senior lawyer and the 3rd Prime Minister Tun Hussien Onn to review the then existing machinery to discipline errant lawyers and to make appropriate recommendations. The committee amongst others consisted of:
1. former Lord President Tun Mohammed Suffian
2. Justice Harun Hashim
3. Dr. Chandra Muzaffar
4. Mr. S.M. Idris
The committee received proposals from the public and interested bodies on what constituted misconduct, mechanism for disciplinary procedure and the role of the Bar Council in relation to disciplining lawyers.
In a 50 page report known as Discipline of Advocates & Solicitors – Report of the Bar (Disciplinary Proceedings) Review Committee, the committee recommended the setting up of a Complaints Secretariat separate and independent of the Bar Council to deal with complaints and discipline. This paved the way for the establishment of the Disciplinary Board and the secretariat of the Board is housed in a different premises away from the Bar Council building. Most of the recommendations were incorporated as amendments to the Legal Profession Act 1976. For the first time lay members were included in the Investigating Tribunals and the Disciplinary Committees appointed by the Board to investigate and hear complaints against Advocates & Solicitors. There is now a Bill tabled in Parliament to make further amendments to the disciplinary procedures.
The Bar established the Compensation Fund in 1977 to compensate clients who had suffered pecuniary loss as a result of dishonest or fraudulent acts of lawyers. Members of the Bar pay a mandatory RM100 per year. This is yet another contribution of the lawyers to relieve the public from the misdeeds of some members.
Compulsory Professional Indemnity Insurance
The 1990 AGM voted for the setting up of a mandatory professional indemnity insurance to cover each and every law firm. The Bar took this step as an inevitable development which sooner or later would be thrust on the Bar by the government or public opinion. The insurance scheme was implemented after the LPA was amended.
The editorial in August 2003 issue of the Malaysian Bar’s newsletter 'INFOLINE’ aptly sets out in a nutshell the aspirations of the Malaysian Bar.
“As a bastion of independence the Malaysian Bar is unparalleled. We were there in 1978 affirming our undying belief in the rule of law and fundamental rights, boycotting ESCAR and effectively, those who subscribed to it. We were there in 1988, defending Tun Salleh and the institution he represented on principle. And we have been there ever since, appearing in matters ranging from the right of the Bar to consider allegations of judicial corruption to the rights of mass assembly. We have stood fearlessly and unfailingly. For justice, for the rule of law”
*This is the transcript of a speech by Mr. RR Chelvarajah delivered at a young lawyers gathering in the Malacca Bar on 27th June 2006
1 Editor's note (correction): The Bar Council started its first Legal Aid Center in 1980, first in a small village coffee-shop and later in a wooden shack in the then fishing village of Bayan Lepas, Penang. Free legal aid and advice were provided to factory workers (mostly single women) in the Free Trade Zone, fishermen and farmers in the vicinity. Shortly thereafter, several lawyers in Kuala Lumpur with the assistance of the Asia Foundation, opened a Legal Aid Centre in a small room in the Kuala Lumpur High Court premises.