The Bar Council has neither sought these proposed amendments, nor has there been any resolution by Members of the Malaysian Bar for these amendments.In its wide sweep, the proposed amendments pose a serious threat to the independence of the Malaysian Bar, and are an unwarranted interference into the self-regulation and internal management of the Malaysian Bar. - see Malaysian Bar - BN government seeking to weaken the Bar by proposed amendments?
On the face of it, recent news reports in Star and Malay Mail (see below for reports) raised concerns:-
Is the current President and the Bar Council going ahead now and agreeing to some of the government's proposals to amend the Legal Profession Act EVEN BEFORE going back to the membership, reasonably through a General Meeting, to get the required mandate and approval of all members - amendments that will affect the elections of Bar Council members, the quorum, the length of the terms of office, etc... [See earlier post:-'Attack' on the Malaysian Bar and Freedom of Asociation? What the MNalaysian government proposes to do in October 2016?...]
The Malaysian Bar places great importance on transparency, accountability and democracy. The leadership does not assume that it has the right to act unilaterally, just simply on the basis that they are the current elected leaders. They will get back to the membership, when there is something new - like these proposals by the government to amend the Legal Profession Act. They will seek the views of members and collectively come to a decision of members in a General Meeting.
The Malaysian Bar Council acts always based on the decisions of the membership - be it through existing Resolutions of the Bar or existing positions and objects. On matters of torture, death in police custody, 'shoot to kill' policy, death penalty, freedom of expression, peaceful assembly, powers of the AG, Sedition Act, etc...where there exist already resolutions and positions, there will be no need to revert to the membership everytime related matters arise.
BUT...this new proposals for amendment to the LPA raises new issues - the Bar Council MUST get back to the membership before agreeing to any proposal of government of the day. The Bar Council was right in making its stands that we would defend the Bar's right to 'Fredom of Association' and would not tolerate any attack on the Independence of the Malaysian Bar.
The Bar Council now after every Bar Council meeting will send to all members a General Statement of Matters Raised and Decided - this is a good example that should be emulated to all other democratic organisations including our Malaysian government. It would be good that all Malaysians are informed of matters discussed and decisions made after every Cabinet meeting. Transparency and Accountability is something that the Malaysian Bar and its members, being all practicing lawyers in Peninsular Malaysia, insist upon.
Hence, when I read that the Star and Malay Mail news reports, that suggested that the Bar Council had, even before getting back to its members in a General Meeting, agreed to some of the proposed amendments to the LPA, I was shocked and perturbed. But, initial inquiries with the Bar Council, has assured me that the reports are wrong - and the Bar Council maintains its position and, have NOT AGREED to any of the government proposed amendments to the LPA.
It must be pointed out that in the Malaysian Bar, decision are made with regard to even Rules of Practice like even the rates of fees for Conveyancing matters, Continued Professional Development, the entry of Foreign Lawyers, etc by the membership at General Meetings - never alone or arbitrarily by the sitting Bar Council. That is how a democratic organization should be ...leaders are never mandated to do anything as they please simply on the basis they have been elected...it is so unlike what is practiced by even our current BN government...who seems to operate that they can do anything that they 'believe is in the best interest of the people' on the basis that they were elected in at the last General Elections - irrespective even if it is a new issue like the TPPA or the GST. In many democratic nations, there would have been REFERENDUM to get the peoples' support and mandate - but sadly not in Malaysia yet...maybe in the future..
The Malaysian Bar needs a speedy Extraordinary General Meeting - given the fact that the Malaysian government seems adamant about amending the Legal Profession Act - an amendment not requested by the Malaysian Bar but an amendment 'forced' upon the Malaysian Bar...It is good that the new de facto Law Minister is having meetings and discussion with the Malaysian Bar - but it is best that these proposals are dropped for now ...until the membership of the Bar can have their General Meeting and decide on what amendments they want to be made to the LPA...which then they will inform the government.
The Bar Council may be busy with existing programs including also the upcoming International Malaysian Legal Conference, but that is no excuse for delaying the EGM.
The EGM is needed for the Malaysian Bar to discuss and decide on the course of action with regards these proposed amendments to the Legal Profession Act, which the government says will be tabled in the upcoming October 2016 sitting. Discussions with the Attorney General's Chambers and the de facto Law Minister are good, but is useless without the expressed mandate of the general membership. Until after the EGM, the Bar Council can only take one position - No to any amendments of the LPA as a matter of principle. It is hoped that the Bar EGM is held soonest in August 2016 - failing which it may be too late to stop proposed amendments. This current government has a history of suddenly tabling amendments and passing it speedily if it wants to, and assurance of a Minister or some public officer cannot really be relied upon as being the position of the government. The Bar Council need to be careful that it is not deceived into a state of complacency resulting in procrastination until it maybe too late...
The EGM is needed for the Malaysian Bar to discuss and decide on the course of action with regards these proposed amendments to the Legal Profession Act, which the government says will be tabled in the upcoming October 2016 sitting. Discussions with the Attorney General's Chambers and the de facto Law Minister are good, but is useless without the expressed mandate of the general membership. Until after the EGM, the Bar Council can only take one position - No to any amendments of the LPA as a matter of principle. It is hoped that the Bar EGM is held soonest in August 2016 - failing which it may be too late to stop proposed amendments. This current government has a history of suddenly tabling amendments and passing it speedily if it wants to, and assurance of a Minister or some public officer cannot really be relied upon as being the position of the government. The Bar Council need to be careful that it is not deceived into a state of complacency resulting in procrastination until it maybe too late...
The Malaysian Bar must also be aware of what has been happening around them in recent times, and it is more likely than not that the Malaysian Bar, one of the last bodies committed to courageously upholding the cause of justice, will be the next target to be 'weakened' by amendments to the law. As such, it may be foolish for the Bar Council to delay the calling of an EGM, and simply rely on 'assurances' given by some in the government.
Th intention to amend the LPA, and the intention to table the amendments in the upcoming session of Parliament in October was made known at the end of May 2016. The fasting month may have good reason for delaying the EGM but any further delay would not be justified...in my opinion. It is good that the Malaysian Bar has received much support from other Bar associations, civil society and human rights groups - but it needs now a CLEAR mandate and decision of its members, which can only be achieved by an EGM soon - very soon preferably in this month.
Monday, 1 August 2016 | MYT 3:02 PM
Azalina: Amendments to legal profession act to address bread and butter issues
KUALA LUMPUR: De-facto law minister Datuk Seri Azalina Othman
Said hopes that proposed amendments to the Legal Profession Act 1976
(LPA) will address 'bread and butter issues' like legal exams and the
ability of all legal practitioners to speak and read English.
Speaking at a press conference in her office here, Azalina said the
amendment should address issues that would benefit the bar members
"Those who are a part of the bar council including the Syariah lawyers have got their own issues.
"For example, they have the common bar exams to qualify as bar
members. It differs for the Syariah lawyers who are also a part of the
Bar," she said adding that there was a need to standardise the
qualification process for lawyers to be a part of the bar council.
She added that the issue of proficiency in English needed to be addressed.
"Though court sessions are in Malay, some documents are in English and there have been cases where some of them can't read it.
"So I hope the amendment would be more toward bread and butter issues
that would benefit all 17,000 members who are currently registered with
the Bar.
The minister in the Prime Minister's department then added that
following her meeting with the Bar council earlier on Monday, no
consensus has been reached on the proposed amendments.
"There is no finality to the draft. It is still at the discussion
stage. I had listened to the Bar president Steven Thiru and he informed
me of the issues that they agree to and don't.
"After it’s finalised, it's to be brought to the cabinet and then it
would be brought to parliament, subject to changes," she said adding
that the next meeting with the Bar would be in September.
In May, Steven Thiru had said the proposed amendments were
unwarranted interference in the self-regulation and internal management
of the Malaysian Bar.
He had pointed out that among the amendments is the proposal that two
members of the Bar will be appointed by the law minister for the
purpose of representing the government.
"The amendments will also empower the said minister to make rules and
regulations in respect of the conduct of the elections to the Bar
Council and of the Office Bearers of the Bar," he said.
In response, the attorney general, Tan Sri Mohamad Apandi Ali had said the amendment was to make the bar more transparent.
He reiterated that the government does not have any intention of
controlling the Bar Council and, in fact, is much more open to
criticism.
Earlier in July, the Australian Bar Association (ABA) had written an
open letter to Prime Minister Datuk Seri Najib Tun Razak, expressing
their concerns regarding the proposed amendments to the LPA.
Following this Azalina had said that statements by several parties
claiming that the proposed amendments to the LPA is being done to allow
the government to interfere in the Bar Council is inaccurate.
She had said that the amendments are still being drafted and it is
unfair for outsiders to interfere by releasing statements on the matter. - Star, 1/8/2016
Monday August 1, 201602:28 PM GMT+8
Azalina said the government hoped to address 'bread and butter' issues for lawyers in its final copy. ― Picture by Choo Choy May
KUALA
LUMPUR, Aug 1 — The government has yet to finalise its proposed
amendments to the Legal Profession Act (LPA) 1976, de facto law minister
Datuk Seri Azalina Othman Said said today.
Azalina also said the government hoped to address “bread and butter” issues for lawyers in its final copy.
“Actually there is no finality yet in the LPA amendments. It’s still in
discussion stage,” she told reporters at the Parliament building here
after meeting with representatives from the Bar Council, her first since
been put in charge of the legal affairs division on June 28.
Noting that many legal practitioners including those from abroad had
criticised the proposed LPA amendments “as if the government wants to
control the Bar Council through direct and indirect intervention”,
Azalina reiterated that those claims are “not true”.
She said that the Bar Council representatives have today presented
their views on the proposed law changes that they agreed and disagreed
with, adding that one of the points discussed was the introduction of
electronic voting for elections for the professional body.
“After getting an agreement from all concerned at the policy stage,
then only will we bring it to the Cabinet meeting to be agreed by the
Cabinet, and then this Act will be brought to Parliament. But this is
also subject to changes that may happen in this process,” she said.
She added that the Bar Council is expected to provide further feedback on the proposed LPA amendments in September.
Azalina also said she had today advised the Bar Council to prioritise
the affairs of its 17,000 members, including issues such as the
introduction of a Common Bar Exam (CBE) to serve as a uniform
qualification standard for those wishing to be lawyers; limiting
lawyers’ liability; and the lack of English proficiency among some
lawyers.
“So I hope the LPA amendments will not only be over the issue of quorum
or representatives, but more on the bread and butter issues.
“Let the amendment be an overall amendment to benefit all the 17,000 members of the Bar, not just a one-off issue,” she said.
The amendments were initially slated to be tabled in Parliament this
October, but it is unclear if it would still be raised there by then.
On May 27, Malaysian Bar president Steven Thiru issued a circular on
the proposed LPA changes to all the professional body’s members,
informing them of Putrajaya’s plans to have the minister in charge of
legal affairs appoint two government representatives to the Bar Council,
to change the Bar Council’s election process and composition and to
increase the required quorum for the Bar’s general meetings.
The proposal for the LPA amendments had included giving the minister in
charge of legal affairs the power to make rules and regulations on the
conduct of the Bar Council elections.
Today, Azalina also said she had set up a task force to look into legal
aid matters, including issues on whether non-citizens should also be
given legal assistance and the need for legal aid in family disputes
especially in the Shariah courts.
“So actually we want to streamline legal aid in Malaysia, so we can see
the role that has to be played by each government agency or NGO, so the
government can give a better direction,” she said when noting the
numerous bodies providing legal assistance including the Bar Council.
- See more at:
http://www.themalaymailonline.com/malaysia/article/azalina-talks-still-ongoing-on-legal-profession-act-revision#sthash.vtDJuohK.dpuf
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