trictions placed on young lawyers of less than 7 years standing section 46A(1)(a) and the reduction of the quorum under section 67.About 3,400 lawyers turned up for the Extraordinary General Meeting of the Malaysian Bar that was held at the Dewan Lee San Choon, Kuala Lumpur at 3.00pm on Friday (18/8/2006). Heavy rain and the Friday lunch-break traffic jams did not stop lawyers from coming and achieving the onerous quorum of about 2,500 (being 1/5th of total number of members of the Bar) by about 3.20pm. Quorum had to be achieved latest by 3.30pm for an EGM.
The Requisition
The EGM was called following a handing over of requisition notice to the Bar Council signed by 130 lawyers that was handed over to the Bar Council at about 12-30pm on Monday, 31/7/2006. This was done in response to unhappiness about some of the provisions to the Legal Profession (Amendment) Bill 2006, which surfaced sometime around 4/7/2006, which was rushed through the Dewan Rakyat, and was passed by Dewan Negara just shortly before the requisition notice was handed over.
For the sake of completeness, the said requisition notice that contained the objects for calling of a EGM read as follows:-
“We, the undersigned members of the Malaysian Bar hereby requisition a General Meeting of the Malaysian Bar with the object of: -
a) Calling for the immediate removal of and withdrawal from consideration of those provisions of the Legal Profession (Amendment) Bill 2006, which is presently before the Dewan Negara, which in relation to advocates and solicitors’ disciplinary proceedings oust judicial review, limits the right of appeal, curtails the advocates and solicitors’ right to be heard, imposes secrecy the proceedings of the Disciplinary Board and Committee, enables the Board to make restitution orders against the advocate and solicitor, and breaches the advocates and solicitors right against self–incrimination. The said provisions are those between clauses 18 and 33 of the Bill.
b) Calling upon the Bar Council to oppose vigorously and without compromise all legislations which in any way prejudice the principles of natural justice and fairness”
How and why the requisition notice was filed, from my perspective, could be seen from an earlier article of mine entitled “130 lawyers requisition for a General Meeting of the Bar”. The idea for the requisition came from me and N. Surendran, and the drafting was done by us together with Chew Swee Yoke. Annou Xavier in an earlier posting in a yahoo group did also suggest a requisition. I state this point to dispel suggestions by some that this was all an initiative from some “opposing factions to those who lead the bar today” or from some “enemies” of the Bar (not really knowing what that means). Those who signed the requisition were individual concerned lawyers not just from the Klang Valley, but also from far off JB and Penang.
The Motion that became a Resolution of the Malaysian Bar
At the 18/8/2006, the motion that was proposed by Raja Aziz Addruse and seconded by Dato Param Cumaraswamy, was passed with an overwhelming majority as it was as is stated below
Noting that the Legal Profession (Amendment) Bill, 2006, has been passed by the Dewan Rakyat and Dewan Negara very recently and is awaiting the Royal Assent and Gazette Notification to bring the amendments into force:
Further noting that members of the Bar were not consulted on the several wide ranging amendments contained in the Bill and did not, therefore, have an opportunity to give their views or to be heard on those amendments.
And noting further that save for the repeal of the restriction on the election to the Bar Council and the Bar Committees of any advocate and solicitor of less than seven years standing under Section 46A(1)(a) and the reduction of the quorum under Sections 67 (both of which have the full support of members of the Bar), the amendments have far reaching implications affecting members over disciplinary measures and procedures and, in removing the right of judicial review of any decision or order of the Disciplinary Board, would undermine the rule of law which the Bar has consistently upheld and promoted.
The Malaysian Bar hereby resolves as follows:
(1) that the Bar Council request the appropriate authorities in the Government to bring into force immediately only those amendments referred to above as having the full support of the Malaysian Bar, but to put on hold for the time being the other amendments;
(2) the Bar Council set up an adhoc committee consisting of not more than seven senior members of the Malaysian Bar to carry out 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 representations as may be made to it on the amendments;
(3) that the adhoc committee advise the Bar Council within six weeks as to which of the amendments should or should not be brought into force;
(4) that the Bar Council thereafter recommend to the competent authorities accordingly.
There were some proposals for amendment, but the proposer chose not to make any amendments and the motion as it was became a Resolution of the Malaysian Bar on 18/8/2006.
How the EGM proceeded
Some had come expecting that there would be heated debates between supporters and opponets of the motion, but the mood of the House was an overwhelming support for the motion and a desire to vote and be done with it as soon as possible. This was because Yang Poh, after the proposers had presented the Motion, said that the Bar Council after a special meeting yesterday had decided that they had no problems with the motion.
Further, debates for and against the proposed amendment Bill as it is had been going on in the yahoo groups and the Bar websites over the past few weeks. Malaysian bar Webmaster (MBW) was also very fair to all parties, and later even took the trouble of sending the various opinions expressed to members through e-mail.
Some of those who expressed support for the LPA(Amendment) Bill 2006 as it and supported the Bar Council’s expressed total support included Tuan Haji Sulaiman Abdullah, Latheefa Koya, Sivarasa Rasiah, Tommy Thomas, Lim Chee Wee, Nahendran Navaratnam, Lawrence Teh, Roger Tan, Edmund Bon, Yeoh Yang Poh and Ragunath Kesavan.
Those who were against included Chew Swee Yoke, GK Ganesan, T Kuhanandan, Francis Soh, Richard Wee, B. Lobo, Shanmuga Kanesalingam, N.Surendran, Melisa Ram and Charles Hector (myself). Stephen Tan Ban Cheng opposed the proposed amendments, but he opposed to the mode of objection – i.e. the requisitioning of General Meeting. All in all it was an interesting pre-EGM debate, with occasional side tracking into issues like mode, styles of expression and a bit of personal “attacks”. This, I believe, led to members coming to EGM generally aware of and having considered the various arguments ready to vote.
How times have changed? The availability of Malaysian Bar’s website, e-mail, yahoo-groups and SMSs had allowed this pre-EGM debate to happen. Gone maybe are the days of the long and heated debates at General Meetings – and if persons do repeat arguments in the General Meeting, the run the risk of ‘angering’ some (nope – possibly the majority). It is time that those who are not familiar with the manner of communication in this ICT age, to start learning about the internet, e-mails and computers.
We Must Be Consistent On Our Stands
I was shocked and most disturbed to see a document entitled “Statement from the Requisitionists” which was signed off as “The Requisitionists to the EGM” which was included Circular No.41/2206 (The booklet prepared by the Bar Council for the EGM). I, being one of the requisitionists, had no knowledge, was never consulted or had no say about this statement. I never gave anyone the mandate or the authority to use my name or the word “requisionists”. I have not given any person the authority or the mandate to act on my behalf. Likewise, in the case of the majority of the 130 requisitionists. It is very wrong for any person or group of persons, even if they be “requisitionists”, to do things, make statements or make representations on behalf of the “EGM Requisitionists” or “Requisitionists” when they have not even consulted and/or got the mandate from the 130 named requisitionists.
Remember, that one of our strongest criticisms of the Bar Council was their failure to consult with the membership on the LPA Amendments – and this criticism was directed against the lawfully elected members of the Bar Council. You do not go out there and criticize others for lack of accountability and failing to consult and then go and do the same (or even worse) by making statements and doing things allegedly on behalf of the EGM Requisitionists when it was either done individually or with the approval of a small number only. The proper thing to do would be just put your name and/or names of those who supported a statement or an action, and not give the false impression of representing all 130 lawyers who signed the requisition notice. The statement in the EGM handout, says that it was a statement by GK Ganesan, and if that is so, it was the statement of GK only. One never makes claims of representing others without prior approval and consultations.
Not Enough to Voice Objections and then Vote in Support or Abstain
Rhina Bhar, a Senator, stated that she stood up and spoke against the amending Bill in the Senate, and even went on to state that there were a lot of Senators that supported her. What was embarrassing was the fact that she (and/or these other Senators) did not vote against the Bill and Rhina, herself, walked out and did not even vote or abstain – and this indicates the sad and embarrassing state of affairs with our Senators. You vote according to your conscience – not in accordance with what the party you belong wants. MPs and Senators often forget that they are representing the rakyat – not their party or the government.
Do not run to court to stop members of the Bar discussing an issue
DP Vijandran, spoke well on rules of meeting. But is he not the same person who was seen to be in support of Rajasegaran, our infamous member of the Bar, who saw fit to go to court for an injunction to prevent members of the Bar from holding a General Meeting to discuss issues of serious concern. The proper way of doing things is by allowing the members of the Bar to discuss, debate, deliberate and come to a position – even if the question is whether we should be discussing a particular matter or not. By going to court, Rajasegaran violated Malaysian Bar members’ right of expression, opinion., consultation, debate and the right to finally come to a collective decision as we did today (18/8/2006). I hope that lawyer Rajasegaran will also reconsider his decision of asking us, the Bar, to pays cost. I hope he repents and abandons his struggle to prevent members of the Bar from discussing certain matters. Every human person must have the right and freedom to express, discuss and take a position especially when it is a matter that is connected justice and human rights.
Should we have not tried to keep the debate within the Bar for this issue?
The act of some members going to the media with the articles and letters, rather than keeping it within the Bar on this issue which affects our credibility as champions for the cause of justice, is also criticized. We have our own Malaysian Bar Website, with a MBW who is rather open and does not resort to censorship unreasonably – use this. There is also the forum post – and also 2 independent lawyers yahoo groups. This was an issue where we were campaigning for the heart and minds of the members of the Bar – and we should do so preferable within the legal fraternity first. This taking to the mass media was done in this instance both by some supporters and opponents to the amendments.
A courageous stand
Haji Sulaiman Abdullah demonstrated great courage and character when he stood up to oppose the motion, knowing very well that the overwhelming majority were not with him. It was sad that he never really got the opportunity to present his points uninterrupted. We really must always give especially the minority an opportunity to have their say.
It was sad that “points of order” and “procedure” took so mush unnecessary time – we must get down to the merits – i.e. a debate on the real issues – and not get caught up on issues like whether to count the supporters first or the dissenters first. We really did spend way too much time on this
The Government and not the Bar to be blamed for the defects in the Bill
From the Star Report(18/8/2006), Nazri Aziz looks like wanting to push all the blame on to the Bar Council when he was quoted saying “We have made the amendment based on the recommendation of the Bar Council…” Any conscious Malaysian would know that it was a government Bill, and thankfully Khutubul Zaman did clarify what the government means by “consultation” and how at the end of the day, it is may be things that were not agreed to or recommended by the Bar. He talked about the Bar’s experience with the Arbitration Act, and how now we have to study this Act to make further recommendations to get things right. The government gave us the opportunity to be heard but at the end of the day the government decides – and even the final version of the Bill is just shown to a few with conditions of “secrecy”, etc.
Debate the point & not discredit the maker
In the debates, we are still getting distracted and seem to be attacking the maker rather than the points made itself. This is the kind of trend which would make new contributors of opinions fearful of sharing their viewpoints – and that is not good.
On issues, it is also important for one to make a stand – and there were a few who just behaved like politicians and avoided making any real stand on the issue itself. Do not be bothered by popularity polls, chances of winning elections, being seen to be loyal to ‘friends’ and other irrelevant matters – take stands based on principles and values.
Lawyers’ decision MUST be based on principles and not self-interest
Even if these kind of provisions were in an Act of Parliament concerning doctors or engineers or accountants, I would like to believe that lawyers would have been just as strong and in great numbers based on principles.
Some say lawyers came out because it was their “rice-bowl” or their “livelihood” that were being affected – and these are so “self-centred” sounding reasons. I want to believe that we did primarily come out that Friday afternoon for the EGM because these were provisions that went against the rule of law, principles of natural justice and fairness.
What Now?
It is important the Bar President comes out very clearly to state that the Malaysian Bar only supports provisions about quorum and concerning section 46A, and nothing else.
The full resolution (including the preambles) must be made known to all lawyers and the Malaysian public. The Bar’s stance must be clarified, more so since what was perceived by the public before this was that the Bar accepted and supported the whole of the LPA(Amendment) Bill 2006.
I hope that when the committee is set-up, proper consultations be done and members are provided with the final report of the committee before it is handed over to the Bar Council, and that the Bar Council will also provide every version of their final recommendations for feedback before handing it over to the relevant authority.
It is also my opinion that we should be looking at the whole Disciplinary Procedure, and not just confine ourselves to what is mentioned only in the amending Bill 2006.
It is also hope that the Bar Council do keep members informed not just about this matter and other matters on a more regular basis through the website and e-mail, at the very least.
This resolution, and all past resolutions of the Bar are very important as it determines how the Bar Council should act. It is sad that even on the website now, resolutions of some years like 2003 and 2004 are missing. Hope this could be remedied soonest.
We have to learn from our past, and move on not to repeat past errors. The Malaysian Bar must always be diligent and never again be found failing to defend the rule of law, principles of natural justice and upholding the cause of justice without fear or favour.
Charles Hector
19th August 2006
Petaling Jaya
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