130 LAWYERS REQUISITION FOR A GENERAL MEETING OF THE BAR

130 lawyers requisition for a General Meeting of the Bar

At about 12-30pm today(31/7/2006), 130 members of the Bar exercised their rights pursuant to section 65(2) Legal Profession Act 1976 to requisition for a General Meeting of the Malaysian Bar. Coming less than 2 working days after the call went out for lawyers to requisition for a General Meeting with the object of removing certain provisions found in the Legal Profession (Amendment) Bill 2006. The fact that 130 lawyers from Johore, Penang, Kuala Lumpur and Selangor have bravely placed their name to the requisition notice, whilst noting that only 50 are required by law, makes this an important enough matter that warrants the calling together of lawyers to deliberate on the stated objects of the requisition notice.

The concern of the requisitionists, and many other lawyers who would have, but may not have had the opportunity to place their signatures in time on the required written notice, stresses the importance of the matters contained in this requisition that reads:-

“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”

It must be stated that a requisitioned General Meeting of the Bar was furthest from the minds of many of these requisitionist, and it could have been avoided if and only if the Bar Council had conceded that there were some serious issues that have been raised by lawyers that required a serious re-consideration of the present stance taken by Bar Council when they threw their full support behind this Legal Profession (Amendment) Bill 2006.

It must be highlighted that the concerns of the requisitionists are not with regard the earlier part of the Bill which caused to be deleted section 46A(1)(a) and sought to replace the now existing onerous quorum requirements with a more reasonable and fair quorum requirement.

What was the biggest concern about this Legal Profession (Amendment) Bill 2006 was that it sought to specifically exclude judicial review through clause 33 whereby the new section 103E(2) reads “There shall be “There shall be no judicial review against any decision or order made by the Disciplinary Board.”

The next big concern is the limitation of the right of appeal to certain specified subsections and sections. The absence of wordings that would enable courts to allow for appeal against other orders and decisions generally would in fact tie the hands of the court and may lead to injustice. We must always acknowledge that we do not really know what may come up in the future, and that in all fairness right of appeal must never be limited. The current provisions so specific in its limitation may in all likelihood suppress the courts’ inherent jurisdiction to hear appeals which should be appealable in the interest of justice.

Even Yeoh Yang Poh, our President, in his article “Concerns About DB Amendments”, acknowledges one matter that should have been appealable that have inadvertently been left out. In his article, published in the Malaysian Bar website, he writes. “One subsection may have been inadvertently left out, namely S.100(1)(a) under which DB may make a final decision that there is no merits even on the face of the complaint itself and thus dismiss the complaint. It is not expressly provided in S.103E that the complainant can appeal from such a final decision. This omission in fact favours the lawyer. In the public interest, it should be included.”

The present section 103E(1) states “Any party aggrieved by any decision or order made by a Disciplinary Board shall have the right of appeal to the High Court within one month of notification of the decision or order complained against”. Personally, I find that this provision is correct and there is no need whatsoever to limit the right of appeal, let alone to go further and specifically oust judicial review.

The next serious concern is with regard the proposed amendment to section 76(2) of the LPA. Secrecy now may be extended to all proceedings Board (the Qualifying Board), the Disciplinary Board and the Disciplinary Committee. What is worse is the proposed new sub-section (3), which states that “No member of the Board, the Bar Council, the State Bar Committee, the Disciplinary Committee and their staff who are involved in any proceedings or matters conducted by them shall be compelled to disclose to any court any information relating to such proceedings or matters.”

It may be argued that secrecy is important for debates that go on within the Bar Council, State Bar Committees and/or committees or sub-committees of these bodies but not with regards the other bodies. We must not forget the not too long ago CLP issue.

We must also not forget that in the interest of justice there must be full disclosure when it comes to anything connected to Disciplinary proceedings, which is quasi-criminal in nature. It stinks more so, when Bar Council Criminal Law Committee in a recent New Sunday Times (30/7/2006) article “Changes could lead to shorter, fewer trials” (which was also posted on our Bar website) is reported to have said that right to full pre-trial disclosure would very well soon become a reality in Malaysia. Full disclosure is a fundamental right, and this proposed amendment to our own LPA is goes against the very essence of full disclosure. The wordings, as it is now in the Bill, is so broad and is open and may justify a very narrow interpretation by the courts and this may cause great injustice to the lawyer complaint against and also the complainant.

We are the Malaysian Bar, and no amount of justifications, rationalizing and even current understanding of the ambit and scope of some of these provisions is sufficient. What we need is very clear words in the proposed amendments of the LPA that is clear enough to prevent any other interpretation that goes against the very intent of the draftsmen.

We all know that even the expressed intention for the ISA as recorded in the Parliamentary Hansard has not prevented the executive from utilizing this draconian act against other persons and for other reasons, which were never intended by the original; proponents of the ISA. Thus, unless the words in the Act itself are very clear, it is dangerous and may lead to potential injustice.

The object of the requisition is clear. It is not meant in any way to sanction the Bar Council or the draftsmen of the Bill. It highlights very serious concerns about some of the very ‘dangerous’ provisions contained therein which requires the Bar as a whole to consider, and determine what our stance are.

There is also great concern about how this Bill was drafted, and how members of the Bar were never consulted. It seems that even members of the Bar Council were not fully consulted. Haji Sulaiman, in his article “Why I Support the LPA Amendments” says that this was because the Bar Council was not allowed to consult. He says that the AG and the Cabinet insisted on confidentiality.

We may have been desperate to get the provisions about the quorum requirements through as fast as possible, but this cannot justify not consulting with members of the Bar more so since this was the Legal Profession Act, the Act that governs lawyers.

We must not forget that we have a Resolution on Transparency and Accountability. We must not forget that our objections against the secrecy position is also the reason why we now at least have highlights of the Bar Council meetings made available to all lawyers. And now, are we not taking a step back just because the AG and the Cabinet asked us to do so, or just because we are so desperate the get a more reasonable quorum requirement enacted soonest?

Legal Profession (Amendment) Bill 2006 is a concern for all lawyers, irrespective of whether we have been found guilty of misconduct previously, facing disciplinary action now or possibly going to face disciplinary proceedings tomorrow or never will face disciplinary proceedings at all. As lawyers, concerned with upholding the cause of justice without fear or favour, irrespective of whether we may fall victim to an Act of not, we must always do the right thing. If and when we do find something, we verily believe is wrong, is an injustice and/or is a violation of human rights, we must act immediately. Motives, interests and ‘hidden agendas’ of persons who highlight issues must and should never be raised to distract us from the real issue before us – the Legal Profession (Amendment) Bill 2006.

The Bar Council has a right to be heard, and that is why all of us who are able to make it to the Forum on Saturday must make every effort to attend with an open mind. The calling of the Forum was a positive move and it should have been done much earlier as soon as members started raising concerns about the Bill.

A Forum, however, is not a General Meeting of the Bar, and it may not be sufficient to compel the Bar Council to change their publicly expressed position of support of the existing Bill. We would need a General Meeting, which I hope that the Bar Council will put in every effort to ensure that it is called as though it is General Meeting being called for by the Bar Council itself. A half-hearted going through the motions of calling for a General Meeting by the Bar Council will more likely than not fail to achieve the required quorum. Let not personal feelings or personalities get in the way of us getting each and every lawyer together to discuss this very important issue that affects not just lawyers but also the public at large.

Charles Hector
31 July 2006