Repeal s.46A and all amendments that muzzle Resolution (23/3/2002)

The 56th AGM of the Malaysian Bar held at the Crown Princess Hotel, Kuala Lumpur - Saturday, 23 March 2002

Return the Independence of Malaysian Bar to Choose Their Own Leaders and to Conduct Their Affairs – Remove the ‘Muzzles’ in the LPA

WHEREAS

1. In October 1977, in response to the Government introducing the Essential Security Cases (Amendment) Regulations 1975 (‘ESCAR’), the Malaysian Bar passed a Resolution at an Extraordinary General Meeting criticising the ESCAR as laws that ‘were manifestly unfair and unjust as to offend the conscience of all good men’ and also advised its members not to appear for accused tried under the laws in protest of the same on the premise that an accused under ESCAR would be denied a fair trial notwithstanding the provision for presence of counsel.

2. The government in response to the criticism of the Bar, introduced the Legal Profession (Amendment) Bill 1977 which allowed the Attorney-General to admit foreign lawyers, increased the quorum requirements of general meetings of the Bar to 1/5 of its membership and automatically disqualified certain classes of lawyers from holding office in the Bar Council, the State Bar Committees and their sub-committees.

3. The Bar Council after attempting and failing to dissuade the government from passing the Bill, in discussions held with the government and the then attorney-general, issued a press statement objecting to the amendments.

4. The amendments proposed by the bill came into force in early 1978. In response to the Legal Profession (Amendment) Act, at the Annual General Meeting of the Malaysian Bar in February 1978 the Malaysian Bar passed a resolution expressing regret at the government’s insistence in passing the Legal Profession (Amendment) Bill 1977, ‘without making proper enquiries as to its allegation that the Bar is being influenced by practitioners of less than seven years’ standing or who are politically motivated’, ‘with the clear and wholly unworthy intention of muzzling the Malaysian Bar’. The amendments were opposed, inter alia, on grounds that they imposed restrictions on the Bar to choose its own leaders and impeded the independence of the Bar.

5. By virtue of the passing of the Legal Profession (Amendment) Bill 1977, amongst others, Section 46A of the Legal Profession Act came into being disqualifying the following lawyers from holding office in the Bar Council:

(i) Persons who are less than seven years’ standing in the Bar;
(ii) Members of Parliament or State legislatures;
(iii) Persons who hold office in any trade union, political party or any organisation which has objectives or carries on activities which can be construed as political or declared so by the Attorney-General.

6. Section 56 of the Legal Profession Act 1976 expressly provides that the Bar Council is vested with the power to act subject to the Act or any rules made thereunder or ‘any resolution passed from time to time by the Malaysian Bar in general meeting’.

7. Notwithstanding the provisions of Section 56 of the Legal Profession Act and the clear and express stand taken by the Malaysian Bar in 1978, on 17 August 2001, a majority of the members of the present Bar Council decided to adopt part of the muzzle imposed by amendments to the LPA 1976, that is that ‘persons who hold office in any ... political party’ cannot hold office in the Bar Council. This was also the position reiterated by the Bar Council at the informal meeting with members held on 28 September 2001.

8. This action of the Bar Council, the elected leadership of the Malaysian Bar, which was done without consultation and/or reference to the general membership, was an act of total disrespect and disregard to the position taken by members through Resolution passed at general meetings of the Malaysian Bar.

9. The Bar Council has changed its position to be in accordance with the position adopted since 1978, it is most important that the Bar Council be reminded that it should not take positions contrary to any Resolutions passed at general meetings of the Malaysian Bar.

WHEREFORE, we, the Malaysian Bar:

1. Affirm the stand taken by the Malaysian Bar in 1978 in opposing the amendments introduced by the Legal Profession (Amendment) Bill 1977 as being unconstitutional that have the effect of constraining rights of members of the Malaysian Bar in electing its own leaders and impeding the independence of the Bar.

2. Direct the Bar Council to immediately take all necessary steps to call for and campaign for the repeal of Sections 46A and other amendments introduced by the Legal Profession (Amendment) Bill 1977 that which affects the independence of the Bar and hinder our ability to govern ourselves.

Proposer: Charles Hector
Seconder: Amin Hafiz

Resolution:

The Motion, as amended, was carried by a majority decision