The 52nd AGM of the Malaysian Bar held at the Hilton Hotel,
Motion 8:
It is resolved, that in the interest of promoting greater accountability, the Bar Council shall have dialogue sessions with all members of the Malaysian Bar at least once every four months.
Proposer: Mr Charles Hector
Seconder: Mr Joseph Mathews
Resolution:
The Motion was put to the vote and defeated.
The EGM of the Malaysian Bar held at the Renaissance Hotel,
Motion 4:
Whereas
1. One of the objects of the Malaysian Bar is to represent, protect and assist members of the legal profession in
2. And another of the objects is to afford pecuniary and other assistance to members or to former members of the Malaysian Bar and to wives, widows, children and other dependents, whether of members, former members or deceased members who are in need of such assistance;
3. Noting also the fact of the increasing probability that members of the Bar may be arrested and detained by the police, and also subjected to possible further detention under the powers accorded to the police by virtue of Section 117 of the Criminal Procedure Code in matters in connection with their brief and/or client-solicitor relationship. A recent example of this being the case of Leonard Teoh.
4. Noting also that members of the Bar are also possible victims of laws that provide for detention without trial, whereby detention would include all forms of restriction orders, be it under the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933. A recent example being the case of Zulkifli Nordin who was detained under the Internal Security Act, 1960.
Therefore This House Resolves That:-
1. The Bar Council, whenever such arrests and detention take place be it under any laws that are in connection with the said lawyer’s brief OR arrests and detention under the laws that provide for detention without trial takes place, takes immediate action by making its stand or position openly and clearly that it is perturbed and opposed of such actions of the police or other authorities, by the issuance of a media statement and by whatever other means deemed appropriate.
2. The Bar Council takes immediate action to ensure that legal matters, handled by the said advocate and solicitor, be looked into to ensure that adjournments are sought, etc. with regard to litigation matters, and whatever other assistance be rendered to ensure the smooth discharge of the said advocate and solicitor’s duties in connection with his/her legal practice during the period of his/her detention.
3. That the Bar Council takes immediate action to ensure that family members and dependents of the said advocate and solicitor receive the necessary support and assistance, including legal and pecuniary assistance, if possible.
4. That the Bar Council work together with the State Bar Committees, to set up mechanisms to ensure immediate responses to the abovementioned tasks and responsibilities.
Proposer: Mr Charles Hector Fernandez
Seconder: Mr Bala Subramaniam
Resolution:
The House agreed with the Chairman that the Motion be treated as sentiments of the House and that Mr Charles Hector look at the system in
Motion 5:
Whereas
1. The freedom of expression, association and movement is a fundamental human right enshrined in the Universal Declaration of Human Rights, and affirmed by international human rights standards.
2. No person should be punished by the means of arrest and detention, or by the imposition of restrictions and conditions as to his/her expression, association and/or movement, without being charged and tried in an open court.
Therefore This House Hereby Resolves That:-
1. The Malaysian Bar hereby adopts the position that all laws providing for arrest and detention without trial, and for the imposing of restrictions and conditions without trial are contrary to the Rule of Law, international human rights standards and established religious values and norms.
2. The Malaysian Bar calls for:-
a) The repeal of all laws that allow for detention without trial in particular the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933, and
b) The immediate and unconditional release of all persons arrested and detained under the first three mentioned legislations above.
c) The immediate removal and/or revocation of all Orders imposing restrictions and conditions under the abovementioned legislations, on all persons with regard to expression, association and movement, without trial.
3. The Bar Council takes all necessary steps to work towards the realisation of the abovementioned resolutions.
Proposer: Mr Charles Hector
Seconder: Mr Francis Pereira
Resolution:
The Motion was unanimously adopted.
The 54th AGM of the Malaysian Bar held at the Renaissance Hotel,
Motion 3:
Whereas:-
1. This is the 43rd year of our country’s independence from British colonial rule on 31 August 1957 and it is time that the government of the day broadens “democratic space” and begins treating Malaysians as adult, mature and thinking individuals who must be given access to information and differing opinions irrespective of whether they are from political parties, societies, non-governmental organisations or individuals. Malaysians have the capacity to evaluate, analyse and come to sensible conclusions.
2. Our Federal Constitution in Part II entitled “Fundamental Liberties” in Article 10(1)(a) provides for the “right to freedom of speech and expression”.
3. There is a need for a more liberal and tolerant policy in the issuances of permits and/or licences for publications and radio/television stations, which are tools and means of expression and opinion forming.
4. The permit of the publication “Harakah”, which apparently sold about 350,000 copies per issue, has recently been imposed with new conditions with regard to the frequency of publication, from twice weekly to twice monthly. Some years ago the permits of the “Harakah” and the “Rocket” were imposed with the condition that these publications could only be sold to members of the party publishing them which is contrary to the principle that all publications should be freely accessible to all Malaysians.
5. The legislature through the Printing Presses and Publications Act 1984, in particular Section 13A(1) have excluded judicial review of the executive’s decision in granting, revoking or suspending a licence or permit.
6. In excluding “judicial review”, the legislature and/or the executive seem to cast aspersions on the judiciary with regard to their ability to make wise and just decisions in accordance with the law; and have also crippled the judiciary in their task of preventing arbitrariness in executive decision making.
Now it is hereby resolved:
A. That the Malaysian Bar calls upon the Government of Malaysia to remove all restrictions in law and/or otherwise that limit the full exercise of the right to freedom of speech and expression in
B. That the Malaysian Bar calls for the repeal and/or amendment of the Printing Presses and Publication Act 1984 to ensure that there will be no restrictions and imposition of conditions on permits/licences of publications especially with regard to the frequency of publications and the access of the said publications to all Malaysians.
C. That the Malaysian Bar calls for repeal and/or amendment of the Printing Presses and Publications Act 1984 and all other Acts with similar provision that exclude judicial review of executive decisions in whatever manner.
D. That the Malaysian Bar calls on the government of
Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam
Resolution:
The Motion was unanimously carried.
Motion 4:
Whereas:-
1. Today, for more than 90% of the criminal cases, the Magistrate’s Court and the Sessions Court are the courts of first instance. With regard to civil and commercial matters, the lower courts have the jurisdiction to hear disputes where the sum disputed or the value of the subject matter is not exceeding RM250,000.00.
2. The mechanisms provided in the Federal Constitution to ensure the independence of the Judiciary (i.e. judges of the High Court, Court of Appeal and Federal Court, the Chief Justice, and President of the Court of Appeal and the Chief Judges of the High Courts) does not extend to Magistrates and Sessions Court Judges.
3. For example, Magistrates are being remunerated at the scale similar to those of other civil servants with equal education qualification and length of service.
4. All members of the Judicial Services, which includes Magistrates and Sessions Court Judges, and the Legal Services come under the jurisdiction of the Judicial and Legal Service Commission (ref. Art. 138 Federal Constitution), whereby the Attorney General is a member of the said Commission. Thus, the “prosecutors” and “judges”, especially when it comes to criminal matters, come under the jurisdiction of the same Commission and this does not augur well, for “justice must not only be done but also be seen to be done”.
5. Some Magistrates have been appointed as Deputy Public Prosecutors (DPP), and some DPPs have also been appointed as Sessions Court Judges.
6. Many Magistrates appointed are fresh law graduates. The only pre-requisite for the appointment as a Magistrate or a Sessions Court Judge is that he/she must be a member of the Judicial and Legal Services (see sec. 60 & 78A of the Subordinate Courts Act 1948). There is no other qualifications requirements akin to those provided for in Article 123 of the Federal Constitution when it comes to the appointment of the judiciary.
7. As officers of the Court, lawyers have a duty to be proactive in making constructive suggestions for the improvement of the administration of justice in
It is hereby resolved:-
A. That the Malaysian Bar expresses concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts.
B. That the Bar Council be proactive and work towards bringing about reforms in the administration of justice in the lower courts in Malaysia, having special regard to the :-
(a) qualification of Magistrates and Sessions Court Judges;
(b) introduction of Mechanisms or Safeguards to ensure greater independence of Magistrates, Sessions Court Judges and other judicial officers; and
(c) the necessity of separating the Judicial Services and the Legal Services.
Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam
Resolution:
The Motion was unanimously carried.
Motion 5:
Whereas:
1. When a person is arrested in Malaysia, he can be detained by the police for a maximum period of not more than 15 days if the police utilize the powers pursuant to section 117 of the Criminal Procedure Code.
2. In
3. The constitutionally guaranteed right of access to a lawyer may be denied, even though the words used in Article 5(3) Federal Constitution is “Where a person is arrested he …SHALL be allowed to consult and be defended by a legal practitioner of his choice.”
4. Access to the lawyer is a right that should be available from the point of arrest. When a suspect is brought before the Magistrate pursuant to Section 117 Criminal Procedure Code and when the suspect is charged in court, he/she has the right to be represented by a lawyer.
5. The police do NOT have a duty in law to inform the lawyer: (a) whether the suspect will be charged in court OR whether the police are applying for further detention to complete their investigations. If the latter be the case, the police have no duty in law to inform the exact time when the suspect will be brought before the Magistrate; and the identity of the said Magistrate before whom the suspect will be brought for the section 117 application.
It is hereby resolved:-
A. That the Malaysian Bar expresses concern over the denial of the fundamental liberty guaranteed by Article 5(3) of the Federal Constitution to a majority of the suspects arrested and detained in the police lock-ups.
B. That the Malaysian Bar calls on the Malaysian Government to ensure that the right of access to a lawyer upon arrest and the right to be represented by a lawyer, especially during section 117 applications, be recognised and respected by the police and all concerned.
C. That the Bar Council does whatsoever necessary to ensure that the RIGHT TO ONE PHONE CALL, at the very least, be accorded to a suspect when arrested.
D. That the Bar Council does whatsoever necessary to ensure that the police is vested with the duty in law to inform lawyers of the detained suspect as to whether they are opting for an application for further detention pursuant to section 117 Criminal Procedure Code, and if so, at what time the suspect will be brought before a Magistrate and which Magistrate will be hearing the said application so as to give full effect to the right to a lawyer upon arrest.
Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam
Resolution:
The Motion was unanimously carried.
The 55th AGM of the Malaysian Bar held at the Renaissance Hotel,
Motion 4:
Increase Scale Fees and Other Amendments to the Solicitors’ Remuneration Order 1991
WHEREAS:
1. Solicitors’ Remuneration Order 1991 provide for the Scale Fees for Sale and Transfer of Property wherein the said fees are as follows for an Agreement not concerning a developer:
Value of Property Scale Fees
For the first RM100,000.00 1%
For the next RM4,900,000.00 0.50%
Thereafter 0.25%
2. Solicitors’ Remuneration Order further provides that where a standard Sale and Purchase Agreement as provided under the Housing Developers (Control and Licensing) Act 1996 for the transfer of property is valued at RM100,000.00 or below, then the following rates shall apply, that is where the property value is less than RM20,000.00, the Vendor’s Solicitor shall charge RM120.00 and the Purchaser’s Solicitor can charge RM120.00, and where the consideration or purchase price is more than RM30,000.00 but less than RM100,000.00 then “cost of drawing up the agreement of sale to completion” shall be scale fees less 25% (25% Discount). There is however no provisions for property above RM100,000.00 hence it is submitted that the normal scale fees apply;
3. The work involved in a normal Sale and Purchase Agreement is considerable and involves numerous exchanges of Draft Agreements between the Purchaser’s Solicitor and the Vendor’s Solicitor as each party are acting for the best interest of their client and would want to ensure that what is finally contained in the Sale and Purchase Agreement protects their client’s rights.
4. The duty of a Purchaser’s Solicitor and/or the Vendor’s Solicitor is from the preparation of the
5. The professional rate of the Real Estate Agent has increased from 2% of the Purchase Price to 3% of the Purchase Price. In the event of an aborted sale by the Purchaser, the real estate agent retains 50% of the earnest deposit (now 3% whilst before 2%) and the Vendor gets the remaining 50%. Note that full payment is due and payable upon the execution of the
6. With regard to the amount of work done by a Solicitor for the Purchaser or the Vendor, it is submitted that the complexity of the work is most definitely higher than that of a Real Estate Agent. Similarly, the time involved where usually from the date of the Sale and Purchase Agreement to the transfer of property it may take between 3 to 6 months, or even more.
7. Solicitors are professionals and their value and professional work should be given due recognition, and at the present rates, taking into consideration the increasing cost of labour and materials, and also the inflation rates, the scaled fees should be increased to at least 3% or 5% of the total consideration of the said property for the first RM100,000.00 and thereafter half the percentage, being 1.5% or 2.5%.
8. Realising also for property that fall within the proviso of the First Schedule, whereby it is required by law that a Standard Sale and Purchase Agreement be used, the lacuna with regard to property above RM100,000.00 should be dealt with, where it is proposed that this figure of RM100,000.00 be deleted and the same 25% discount of the scaled fees be applicable for all properties that fall within that category irrespective of consideration sum;
9. When scale fees are low, as they are today it means that the law firms will have to resort to bulk work to survive, and that means that professional quality may be compromised, hence there will also be an erosion in the professional standards of the profession.
10. The practice of giving further discounts is contrary to Rule 1 of the Rules under the First Schedule, and this must be adhered to strictly by all solicitors. This is also similar to Rule 1 of the Rules of the Fourth Schedule which deals with Loan Transactions.
11. With reference to the Fourth Schedule, the proviso should be deleted until or unless Parliament in its wisdom comes out with a standard Form with regard to Property Loans. At present each and every loan transaction agreement is dependent on the particular financial institutions, and hence it is still open for the Borrower to insist on the inclusions of certain terms/clauses that will protect his/her rights better. One example of such borrower’s rights that should be protected in Loan Transactions is, the right of claiming for late delivery charges and/or breaches of the Sale and Purchase Agreement – this is needed because in some agreements the Borrower assigns all his rights in the Sale and Purchase Agreement to the Financial Institution, and creates unnecessary difficulty or makes it totally impossible for the Purchaser to enforce his rights in Sale and Purchase Agreement.
12. Rule 2 of the Rules under the First Schedule provides that solicitor acting for the Purchaser may also act for his client in the loan transaction. Note that this clearly means that the solicitor can be the Borrower’s Solicitor only and not the Financier’s Solicitor. When a Purchaser’s Solicitor also is the Financier’s Solicitor with regard the same property, even with the consent of the Purchaser/Borrower, it would be a clear breach of Legal Profession (Practice and Etiquette) Rules 1978. A Loan Transaction is an agreement between two parties, and it will be most difficult or professionally impossible for the same solicitor to ensure both the Purchaser/Borrower’s and the Financier’s rights are protected equally.
13. Likewise, it will also be impossible for the Purchaser’s Solicitor to act for a Borrower in a loan transaction involving a Financial Institution where he/she is on the said Institution’s Panel, even if the solicitor acting as Financier’s Solicitor in that particular transaction is a different solicitor. By being a member of the said Financial Institution’s panel, the said solicitor has to protect the best interest of the said Financial Institution and in many cases might have even given an undertaking to do so – thus it becomes impossible for him professionally to act against his “client” (the Financial Institution) while acting for another of his “client” (the Purchaser/Borrower). Whose best interest will he protect?
IT IS HEREBY RESOLVED:-
1. That the Malaysian Bar acts to ensure an amendment of the Solicitors’ Remuneration Order 1991, to increase the scale fees in all areas, and in particular:-
(a) the First Schedule with regard Sale and Transfer to at least 5% of the consideration of Property for the 1st RM100,000.00 and thereafter to at least 2.5%;
(b) the Fourth Schedule with regard to Loan Transactions to at least 5% for the 1st RM100,000.00 and thereafter to at least 2.5%;
(c) The First Schedule, with regard the proviso that deals with transaction where a standard Sale and Purchase Agreement as provided by the Housing Developers (Control and Licensing) Act 1996 etc, that provides presently that property between RM30,000.00 and RM100,000.00 that allow for 25% discount of the scale fees be deleted, and that this discount be applicable for all property above RM30,000.00;
2. That the Malaysian Bar acts to ensure an amendment of the Solicitors’ Remuneration Order 1991, to delete the Proviso to the Fourth Schedule noting that there is no standard Loan Agreements, as compared to the standard Sale and Purchase Agreement as provided by the Housing Developers (Control and Licensing) Act 1966;
3. That the Malaysian Bar develop and implement a legal education program among all lawyers, as to the requirements of the Solicitors’ Remuneration Order 1991, noting the fact that many solicitors have unconsciously in the past acted in breach of the said Rules and also the Legal Profession (Practice and Etiquette) Rules 1978;
4. That the Malaysian Bar do all that is necessary to realise the intention of the above resolutions including the drafting of an amending Bill and forwarding this resolution to the relevant bodies including the respective Ministers concerned and members of the Legislative bodies.
Proposer: En. Charles Hector
Seconder: En. Amin Hafiz
The Motion was withdrawn.
Motion 5:
WHEREAS:
1. The Malaysian Bar has during its past Annual General Meetings and/or Extraordinary General Meetings passed many resolutions of great importance, amongst others
a) The call for the recognition of the rights to ONE PHONE CALL to all suspects arrested by the police in Malaysia;
b) The call for the recognition of the right of access to lawyer upon arrest;
c) The call that Magistrates, Sessions Court Judges and Senior Assistant Registrars be
made more independent, by amongst others removing them from being under the Judicial and Legal Services Commission;
c) The removal of the seven-year ruling in the Legal Profession Act 1976, that now prevents lawyers below seven years standing from even nominating and standing for elections in the Bar Council and/or the State Bar Committees, and also sitting as equal members of the various committees of the Bar Council and the State Bar Committees.
2. After these resolutions are considered and passed, unfortunately other than receiving minimum and edited coverage in media, it is noted that nothing seems to be done to publicise the said resolutions and/or take steps to give full effect to these resolutions of the Malaysian Bar.
3. There has also been a lack of reporting by the Bar Council, both past and present, as to the steps taken to give effect to these resolutions of past.
4. There is also a lack of documentation of these resolutions, hence leading to a lack of dissemination of the position and stance of the Malaysian Bar with regard to various issues of concern – the effect being that newer members of the Bar are left “blind” about the position of the Bar on these important issues of concern. The history, tradition and positions of the Bar should be proactively handed down to the newer members of the Bar.
5. The Malaysian Bar should be proactive in publicising all resolutions in full, especially those of national importance, in the mass media and if need by advertising. As part of the campaign, the Bar Council should also go to the people and disseminate these resolutions, if need be in the different popular languages of the nation.
6. The Malaysian Bar should also be proactive in forwarding relevant resolutions to all members of the legislative, judiciary and executive and not merely forwarding the same to certain individuals in their capacity of being the heads of these institutions. If need be, the Bar Council should also prepare and forward draft Bills, as was done for contempt, in an effort to realise the resolutions of the Malaysian Bar.
7. The members of the Malaysian Bar number about 10,000 and if tasks are distributed amongst a greater number, then it will be more effective. At present, it is most disappointing to note that many of the members of the Bar Council have assumed leadership roles in many different committees and sub-committees, and this practice should be stopped as we have more than enough resources in our Bar. A Bar Councillor at most should only head one committee, if at all – he can always be an ex-officio.
IT IS HEREBY RESOLVED:-
A. That the Bar Council immediately act on all past resolutions of the Malaysian Bar, whichever is still applicable and relevant by giving a detailed report as to what has been done since the said Resolutions were passed, and publishing the said report through a special report or through its newsletter within three (3) months;
B. That the Bar Council immediately take steps to realise or give effect to all the Resolutions of the Malaysian Bar, especially the doing away with the seven-year ruling, the abolishment of Detention Without Trial Laws, the recognition of the right to One Phone Call and access to a lawyer for all persons arrested, amongst others by the setting up of special task forces or rapid action teams for each and every resolution, who shall be empowered to come up with plans, implement these plans and do all that is necessary to give full effect to the resolutions of the Malaysian Bar, whereby the setting up of these task forces should be done within two (2) months; and
C. That the Bar Council immediately take steps to compile and publish all past resolutions of the Malaysian Bar, and thereafter distribute the same to all present and future members of the Bar.
Proposer: En. Charles Hector
Seconder: En. Amin Hafiz
Ms Gill
Resolution
The Motion was unanimously passed.
The 56th AGM of the Malaysian Bar held at the Crown Princess Hotel,
Motion 3:
Increase Scale Fees and Other Amendments to the Solicitors’ Remuneration Order 1991
WHEREAS
1. Solicitors’ Remuneration Order provides for the scale fees for sale and transfer of property wherein the said fees are as follows for an Agreement not concerning a Developer;
Value of Property Scale Fees
For the first RM 100,000 1%
For the next RM4,900,000 0.50%
Thereafter 0.25%
2. Solicitors’ Remuneration Order further provides that where a standard Sale and Purchase Agreement as provided under the Housing Developers’ (Control and Licensing) Act 1966 for the transfer of property valued at RM100,000 or below, then the following rates shall apply, that is, where the property is less than RM30,000, the Vendor’s Solicitor shall charge RM120 and the Purchaser’s Solicitor can charge RM120, and where the consideration (or purchase price is more than RM30,000 but less than RM100,000, then ‘cost of drawing up the agreement of sale to completion’ shall be scale fees less 25% (25% discount). There is, however, no provisions for property above RM100,000 and hence it is submitted that the normal scale fees apply;
3. The work involved in a normal Sale and Purchase Agreement is considerable and involves numerous exchanges of draft Agreements between the Purchaser’s Solicitor and the Vendor’s Solicitor as each party is acting for the best interests of its client and would want to ensure that what is finally contained in the Sale and Purchase Agreement protects its clients’ rights;
4. The duty of a Purchaser’s Solicitor and/or the Vendor’s Solicitor is from the preparation of the
5. The professional rate of the Real Estate Agent has increased from 2% of the purchase price to 3% of the purchase price. In the event of an aborted sale by the Purchaser, the Real Estate Agent retains 50% of the earnest deposit (now 3% whilst before 2%) and the Vendor gets the remaining 50%. Note that full payment is due and payable upon the execution of the
6. With regard to the amount of work done by a Solicitor for the Purchaser or the Vendor, it is submitted that the complexity of the work is most definitely higher than that of a Real Estate Agent. Similarly, the time involved where usually from the date of the Sale and Purchase Agreement to the transfer of the property it may take between 3 to 6 months, or even more;
7. Solicitors are professionals and their value and professional work should be given due recognition, and at the present rates, taking into consideration the increasing cost of labour and materials, and also the inflation rates, the scale fees should be increased to at least 3% or 5% of the total consideration of the said property for the first RM100,000 and thereafter half the percentage, being 1.5% or 2.5%.
8. Realising also for property that fall within the proviso of the First Schedule, whereby it is required by law that a standard Sale and Purchase Agreement be used, the lacuna with regard to property above RM100,000 should be dealt with, where it is proposed that this figure of RM100,000 be deleted and the same 25% discount of the scale fees be applicable for all properties that fall within that category irrespective of consideration sum;
9. When the scale fees are low, as they are today, it means that law firms will have to resort to bulk work to survive, and that means that professional quality may be compromised, hence there will also be an erosion in the professional standards of the profession;
10. The practice of giving further discounts is contrary to Rule 1 of the Rules under the First Schedule, and this must be adhered to strictly by all Solicitors. This is also similar to Rule 1 of the Rules of the Fourth Schedule which deals with Loan Transactions.
11. With reference to the Fourth Schedule, the proviso should be deleted until or unless Parliament in its wisdom comes out with a standard form with regard to property loans. At present each and every loan transaction Agreement is dependent on the particular institution, and hence it is still open for the Borrower to insist on the inclusion of certain terms/clauses that will protect his/her rights better. One example of such Borrower’s rights that should be protected in loan transactions, is the right of claiming for late delivery charges and/or breaches of the Sale and Purchase Agreement - this is needed because in some Agreements the Borrower assigns all his rights in the Sale and Purchase Agreement to the financial institution, and creates unnecessary difficulty or makes it totally impossible for the Purchaser to enforce his rights in Sale and Purchase Agreements;
12. Rule 2 of the Rules under the First Schedule provides that the Solicitor acting for the Purchaser may also act for his client in the loan transaction. Note that this clearly means that the Solicitor can be the Borrower’s Solicitor only and not the Financier’s Solicitor. When a Purchaser’s Solicitor is also the Financier’s Solicitor with regard to the same property, it would be a clear breach of the Legal Profession (Practice & Etiquette) Rules 1978. A loan transaction is an Agreement between two parties, and it will be most difficult or professionally impossible for the same Solicitor to ensure both the Purchaser/Borrower’s and the Financier’s rights are protected equally;
13. Likewise, it will also be impossible for the Purchaser’s Solicitor to act for a Borrower in a loan transaction involving a financial institution where he/she is on the said institution’s panel, even if the Solicitor acting as the Financier’s Solicitor in that particular transaction is a different Solicitor. By being a member of the said financial institution’s panel, the said Solicitor has to protect the best interests of the said financial institution and in many cases might have even given an undertaking to do so - thus it becomes impossible for him professionally to act against his ‘client’ (the financial institution) while acting for another of his ‘client’ (the Purchaser/Borrower). Whose best interest will he protect?
14. This Motion was withdrawn by the Proposers at the 2001 AGM in the belief that the Bar Council will be seeking to bring about the necessary and long awaited increase in scale fees BUT alas nothing has been done to date.
IT IS HEREBY RESOLVED:
1. That the Malaysian Bar acts to ensure an amendment to the Solicitors’ Remuneration Order 1991 to increase the scale fees in all areas, and in particular:
a) the First Schedule with regard to sale and transfer to at least 5% of the consideration of property for the first RM100,000 and thereafter to at least 2.5%;
b) the Fourth Schedule with regard to loan transaction to at least 5% for the first RM100,000 and thereafter to at least 2.5%;
c) the First Schedule with regard to the proviso that deals with transaction where a standard Sale and Purchase Agreement as provided by the Housing Developers’ (Control & Licensing) Act 1966 etc that provides presently that property between RM30,000 and RM100,000 be applicable for all property above RM30,000;
2. That the Malaysian Bar acts to ensure an amendment to the Solicitors’ Remuneration Order 1991 to delete the proviso to the Fourth Schedule noting that there is no standard Loan Agreement, as compared to the standard Sale and Purchase Agreement as provided by the Housing Developers’ (Control & Licensing) Act 1966;
3. That the Malaysian Bar develop and implement a legal education programme among all lawyers, as to the requirements of the Solicitors’ Remuneration Order 1991, noting the fact that many Solicitors have unconsciously in the past acted in breach of the said Rules and also the Legal Profession (Practice & Etiquette) Rules 1978;
4. That the Malaysian Bar does all that is necessary to realise the intention of the above Resolutions including the drafting of an amending Bill and forwarding these Resolutions to the relevant bodies including the respective Ministers concerned and members of the legislative bodies.
Proposer: Charles Hector
Seconder: Amin Hafiz
The Motion was withdrawn.
Motion 4:
Return the
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
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.
Motion 5:
WHEREAS
1. The Malaysian Bar has always adopted the position that all laws that allow for preventive detention including the Internal Security Act, should be repealed;
2. The Malaysian Bar has also taken the stand that all persons presently detained under these draconian preventive detention laws should be released immediately and unconditionally or put them on trial in open court;
3. There have been many arrests over the past few months under the Internal Security Act but sadly the Bar Council has failed to immediately and timeously protest the usage of the ISA as was always done in the past, thereby possibly giving the wrong impression that the Bar Council now condones the usage of this draconian legislation;
IT IS HEREBY RESOLVED
A. That we the Malaysian Bar reiterate our call that all laws that allow for preventive detention including but not limiting to the Internal Security Act, be repealed;
B. That we the Malaysian Bar call for the Government to immediately and unconditionally release all persons currently detained under these draconian preventive detention laws or put them on trial in open court;
C. That the Bar Council, as the leadership of the Malaysian Bar, do continuously and actively protest every instance of the usage of these preventive detention laws on any or all persons irrespective of justifications forwarded by the Government of the day.
D. That the Bar Council initiate and set up a Special Task Force to actively campaign for the repeal of these preventive detention laws, and for the release of victims of these draconian legislations.
Proposer: Charles Hector
Seconder: Amin Hafiz
Resolution:
The Motion, as amended, was unanimously carried.
The 59th AGM of the Malaysian Bar – 2004
WHEREAS:-
I. The Bar Council and the State Bar Committees are elected by members of the Malaysian Bar, and as such must at all times be transparent and accountable to its members.
I. There has been concerns that some of our leaders in the Bar Council and/or the State Bar Committees have not been promptly responding to queries, questions, clarifications, comments and/or criticisms from its members, and at times have totally failed to respond at all. These actions/omissions goes against the principle of transparency and accountability.
I. There have been concerns that some of the leaders of the Bar, the Bar Council, State Bar Committees and/or other committees of the Bar have in the past resorted to censorship, indifference, silence, threats of legal actions, letter of demands and/or other means suppress the freedom of expression and opinion and the right to information. The evading of the duty to answer questions, queries and/or criticisms made by members is contrary to the principle of transparency and/or accountability. These acts and/or omissions which may lead to the silencing of dissent is unacceptable.
I. There have been some leaders of the Bar in the past who seem to have wrongly taken the position that they only need to answer explain and/or respond to queries, questions and/or criticisms raised by members at General Meetings only.
I. There have been some leaders of the Bar who wrongly believe that after being elected they have the unquestionable right and/or the mandate to do anything and everything during their term of office, including expending large sum of monies on new matters, and that there is no obligation/duty to go back to the general membership for their approval in a general meeting before the large sums of memberships’ money is expended..
THEREFORE, it is hereby resolved that:-
A. The Malaysian Bar should strive to be the model of democracy, ensuring always that the principle of transparency and accountability is in the forefront of its own organization at all levels.
B. That the leaders of the Bar should at all times actively and positively be responsive to its membership, and must strive to ensure that freedom of expression and opinion is at all times not only respected but also practiced within the Bar at all levels.
C. The Malaysian Bar deplores any or all past acts/omissions of leaders of the Bar and/or its Committees that have caused or have attempted to cause the stifling or silencing of dissent, criticisms and opinions of members of Bar.
Proposer:- Charles Hector
Seconder:- Amin Hafiz
The 59th AGM of the Malaysian Bar held at Legend Hotel,
Motion by Charles Hector & Santhi Supramaniam
Motion on Elimination of All Forms of Discrimination
ELIMINATION OF ALL FORMS OF DISCRIMINATION
WHEREAS some private companies, banks and establishments have a practice that law firms will not be generally retained by the said institutions unless there is compliance with certain ethnic/racial quota requirements with regard the composition of the partners, lawyers in the firm or employees in the firm.
WHEREAS these discriminatory practices have no basis in law by reason that there are at present NO Act, Regulation, Rules and/or any other subsidiary legislation that permits such discriminatory practices in
WHEREAS these practices are discriminatory in nature, and goes against the universal principles of Human Rights and also
WHEREAS these discriminatory practices goes against the universally recognised and acknowledged inherent dignity and equal and inalienable rights of all members of the human family as enshrined in the Universal Declaration of Human Rights, and more specifically spelt out in the International Convention on the Elimination of All Forms of Racial Discrimination.
WHEREAS these discriminatory practices goes against the Universal Islamic Declaration of Human Rights, where in Clause III (c) it is clearly stated that “No person shall be denied the opportunity to work or be discriminated against in any manner or exposed to greater physical risk by reason of religious belief, colour, race, origin, sex or language.”
IT IS HEREBY RESOLVED:-
a) That the Malaysian Bar acknowledges the inherent dignity and equality of all human persons irrespective of ethnicity, race, religious belief, colour, gender or language;b) That the Malaysian Bar condemns all/any institutions and/or persons who uses, practices, propagates and/or encourages any form discrimination;
c) That the Malaysian Bar shall actively take whatsoever necessary steps with the object of ending any/all forms of discriminatory practices;
d) That the Bar Council shall cause to comply a list of institutions/firms which takes into consideration racial/ethnic quotas of law firms before considering to retain a particular law firm or a particular lawyer, and shall thereafter take the necessary and appropriate action against such institutions who practice and/or propagate such discriminatory practices;
e) That the Malaysian Bar call on the Malaysian government to immediately ratify the International Convention on the Elimination of All Forms of Racial Discrimination.
Paragraph (b) of the motion is to be deleted. The motion was unanimously carried.
An Ad-Hoc Committee under the Chairmanship of Charles Hector was appointed for follow up action.
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Item 5 (iv) Motion by Charles Hector & Roland Engan
Motion on RM10 for Building Fund
RM10-00 FOR BUILDING FUND
WHEREAS the Malaysian Bar already do own a Building at No.13, 15 & 17 Leboh Pasar Besar, 50050 KL
WHEREAS for the maintenance and upkeep of the present building, the sum of RM100,000.00 per year should reasonably be more than sufficient.
WHEREAS the Bar Council do earn additional income by the letting out of its Auditorium for third parties to use.
WHEREAS the Bar Council still do charge its members, who have been paying RM100.00 annually for far too long towards the Building Fund for the purchase of this Building, for functions held at the members' Bar Council Auditorium.
IT IS HEREBY RESOLVED THAT:-
a) Members of the Bar shall hereafter pay the sum of RM10-00 only towards the Building Fund;
b) That the Bar Council do present to its members a detailed breakdown as to how monies were utilized for the purchase of the present Building, and for the annual maintenance of the said Building;
c) That members of the Bar shall not be charged registration fees of more than RM10-00 per person per day for any function talk forum held at the Bar Council Auditorium;
d) That all State Bar Committees and/or committees of State Bar Committees and the Bar Council and/or groups of lawyers hall be allowed to use the premises of the Bar Council Auditorium and/or Meeting Rooms for free;
The motion was rejected.
60th AGM of Malaysian Bar –
RESOLUTION OF THE MALAYSIAN BAR FOR THE ABOLITION OF THE DEATH PENALTY
(which was adopted at the 60th AGM of the Malaysian Bar on 18/3/2006)
WHEREAS every human being has the inherent right to life;
WHEREAS Malaysia has hanged at least 358 persons between 1981 and 2005;
WHEREAS about 173 persons are on death row as at December 2005;
WHEREAS :
a) studies conducted throughout the world over the past seventy years have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment;
b) studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate and in Canada there in fact was a sharp decline in the homicide rate after abolition;
c) in the United States over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty;
WHEREAS on the other hand the execution of human beings by the State gives an ‘example of barbarity’ to society and legitimizes the taking of human life;
WHEREAS Malaysia lacks safeguards that would ensure a fair trial such as the right to immediate access to a lawyer upon arrest, right to full disclosure of evidence in the possession of the police and prosecution, and has to the extreme prejudice of accused persons loaded a capital crime statute such as the Dangerous Drugs Act 1952 ( which generates the largest number of death sentences annually ) with presumptions of trafficking that compromise the presumption of innocence which is integral to any fair and just criminal justice system;
WHEREAS:
a) it is not possible in any system of human justice to prevent the horrifying possibility of the execution of innocent persons; and
b) the infliction of the death penalty makes wrongful convictions irreversible;
WHEREAS :
a) 122 countries have abolished the death penalty in law or practice as opposed to 74 countries which retain the death penalty;
b) An average of three countries have abolished the death penalty each year over the last decade;
c) the trend worldwide has been for the abolition of the death penalty;
WHEREAS the UN Commission on Human Rights Resolution 2005/59 passed in 2005 calls upon all states to abolish the death penalty and states that the abolition of the death penalty is essential for the protection of the right to life of every human being;
WHEREAS Article 1 of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) provides that ‘ No one within the jurisdiction of a State party to the present Optional Protocol shall be executed ’.
WHEREAS the death penalty has no place in any society which values human rights, justice and mercy;
NOW IT IS HEREBY RESOLVED that the Malaysian Bar calls for the:
1) Abolition of the death penalty in Malaysia;
2) An immediate moratorium on all executions pending abolition;
3) Commutation of the sentences of all persons currently on death row;
4) Ratification by Malaysia of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).
Proposers: N.Surendran , Charles Hector, Amer Hamzah Arshad, Sreekant Pillai
* the facts and statistics relied on here are from Professor Roger Hood’s The Death Penalty( A Worldwide Perspective) OUP 2002, Amnesty International and statistics released by the Government of
61st AGM – Malaysian Bar 2007
MOTION FOR THE END OF THE STATE OF
Whereas:-
1. On 31st August 2007, it will be 50 years since Malaysia achieved its independence and has been for over 30 years been a peaceful democratic nation.
2. It is sad that
3. Since independence, five states of emergency have been declared under Article 150 of the Federal Constitution. The first was the only one to have been revoked. The remaining four are still in operation. The second state of emergency was proclaimed in September 1964 when the country was faced with a campaign of violence from
4. The next state of emergency was declared on
5. The fourth proclamation came on
6. On
7. By reason of the proclamation of emergency, numerous legislations were enacted and are still in force, including also :-
a) Emergency (Essential Powers) Act, 1964 (30/64), today known as the Emergency (Essential Powers) Act 1979;
b) Emergency (Public Order and Prevention of Crime) Ordinance 1969;
c) Essential (Security Cases) Regulations 1975
8. For example, Section 6 of the Emergency (Essential Powers) Act 1979, states that “"For so long as the Proclamation of Emergency referred to in the preamble to this Act remains in force, the regulations made under the Emergency (Essential Powers) Act, 1964 (30/64) (except those regulations which the Yang di-Pertuan Agong may by notification in the Gazette declare not to be in force) shall be in force and shall have effect as if they have been made under this Act; and the regulations may be amended, modified or repealed as if they have been made under this Act.". [The proclamation of emergency referred to in this Act was the proclamation issued on
9. The Ikatan Relawan Rakyat or better known as RELA (a People's Volunteer Corps) came into being by virtue of Essential (Ikatan RELAwan Rakyat) Regulations 1966 [P.U. 33/1966], under Emergency (Essential Powers) Act, 1964 (30/64), and continue to be in force by virtue of Section 6 of the Emergency (Essential Powers) Act 1979.
10. By virtue of the Essential (Ikatan RELAwan Rakyat) (Amendment) Regulations 2005, which came into operation on 1 February 2005, the powers of the Rela, have been dangerously over-extended giving RELA personnel the right to bear and use firearms, stop, search and demand documents, arrest without a warrant, and enter premises without a warrant. and all these powers can be exercised the RELA personnel has reasonable belief that any person is a terrorist, undesirable person, illegal immigrant or an occupier. Illegal immigrant and occupier (which would be Malaysians usually) was added on by this 2005 amendment.
11. These not-professionally trained volunteers has also now been accorded protection by the new amendments whereby it is stated that "…The Public Authorities Protection Act 1948 shall apply to any action, suit, prosecution or proceedings against the Ketua Pengarah Ikatan RELAwan Rakyat, Timbalan Ketua Pengarah Ikatan RELAwan Rakyat or any member of the Ikatan RELAwan Rakyat in respect of any act, neglect or default done or committed by him in good faith or any omission omitted by him in good faith, in such capacity."
12. Noting also that there has been numerous complaints that have surfaced in the media about the RELA not just from migrants but also Malaysians ranging from torture, gangster-like behavior, damage to property, wrongful arrest and detention and even the causing of deaths.
13. Its was reported that RELA arrested a total of 17,700 people believed
to be illegal immigrants and screened 94,010 people up to September
2006, and that means 94,010 people (or 76,310) with proper documentations were subjected to unnecessary harassment and their right to a remedy in law is difficult. Of the people arrested, recent reports in the media indicate that many may even not be “illegal” or “undocumented” migrants at all.
* “…six foreign workers, all with legal travel and work documents, were whisked out of their quarters in a resort in Cherating in the wee hours of the morning on Dec 28 last year when RELA members "literally broke into their chalet and ordered them out." (The Star,
* “…a team of 30 to 40 RELA members (half not in uniforms) turned up to look for foreign workers, assaulted some and allegedly stole cash and valuables during the raid. The companies, who lodged police reports, said that all the workers had legal work permits…..”(The Star,
* “22 workers of an IT company were beaten and made to do a 50m "duck-walk" at Section 30 in Shah Alam…” (The Star,
* Residents of about 10 households in Taman Anggerik, Cheras,
14. There have also been report of beatings and even deaths caused by RELA volunteers. As an example, in early 2006 it was reported that Ahmad Apik, 35, and Edy Sathurrohman, 26, both Indonesians, lost their lives, and they each left behind a wife and 2 young children. (Star,
15. The policy and practice of paying members of the People's Volunteer Corps (RELA) RM80-00 for each undocumented migrant must be stopped (The Star,
15.
16. Some migrants may be undocumented, but they are still human beings and deserved to be treated humanely and should be accorded equal protection under the law.
17. Malaysia, a party to the April 1999 BANGKOK DECLARATION ON IRREGULAR MIGRATION, which clearly states “Irregular [undocumented] migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled, according to law. Any unfair treatment toward them should be avoided” must adhere to its commitments.
18. New laws can always be enacted by a parliament in times of peace if needed.
IT IS HEREBY RESOLVED:-
a) That we, the Malaysian Bar, call upon the Yang Di-Pertuan Agung to revoke all existing Proclamations of Emergency in Malaysia;
b) That we, the Malaysian Bar call for the repeal all legislations and Acts that were enacted and continue to be in force by reason of the now existing unrevoked Proclamations of Emergency;
c) That we, the Malaysian Bar reiterate our call for the repeal of Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Essential (Security Cases) Regulations 1975;
d) That we, the Malaysian Bar specifically call for the repeal of the Emergency (Essential Powers) Act 1979 and all Regulations and Rules made thereunder, in particular Essential (Ikatan RELAwan Rakyat) Regulations 1966 [P.U. 33/1966], as amended by the Essential (Ikatan RELAwan Rakyat) (Amendment) Regulations 2005;
e) That we, the Malaysian Bar call for the employment and usage of only properly trained professional law enforcement personnel in
f) That we, the Malaysian Bar urge that inquests be conducted for Ahmad Apik, Edy Sathurrohman and for the other persons who have died as result of alleged RELA actions;
g) That we, the Malaysian Bar urge that all persons including undocumented migrants and/or refugees be treated humanely and accorded equal protection of the law;
h) That we, the Malaysian Bar call on the Malaysian government to immediately ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;
i) That we, the Malaysian Bar call on the Malaysian government to immediately ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Proposers:
Charles Hector
Francis Pereira
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1 comment:
As for RELA: I do know from a pretty reliable source, that RELA staff did and do steal goodies and cash from some of these unfortunate folks detained by them; RELA was and is also known for accepting bribes.
Detention is one thing; enduring theft is one thing; getting beaten up is another!
Some of these RELA staff seem to enjoy beating up those detained by them.
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