Draconian 2006 amendments to the Legal Profession Act

Summary of the draconian 2006 amendments to the LPA
Contributed by B. Lobo
Tuesday, 15 August 2006, 13:25

The 2006 amendments to the Legal Profession Act 1976 (the LPA) (“the amendments”) purport to provide for the following:-

1. Gist of the 2006 Amendments

To remove all procedural and substantive safeguards in the Common Law against abuse of power by an administrative inferior tribunal like the Disciplinary Board ("DB") on disciplinary matters pertaining to the livelihood of all Advocates & Solicitors (“A & S”) under a cloak of secrecy.

2. The Regulated Legal Profession

The legal profession is already the most highly regulated profession in Malaysia. We have statutorily recognised “misconduct” (see section 94(3) of the LPA) for even breaches of rules of practice and etiquette or “otherwise”, for breach of any “direction or ruling”. An example of the latter is the rule relating to a mere telephone call from an A & S to another A & S.

The LPA presumes that an A & S is guilty of misconduct or improper conduct until proven otherwise by him. The reverse of the burden of proof. An example is sect 116 which provides for a written agreement with client on contentious business. However, although section 117(3) provides that fees under the said Agreement can be subject to taxation, section 118 provides that the client can still go to the High Court to question “…the validity or effect of…any such agreement…” and the Court can declare the agreement void.

Even if the client had paid all monies under the agreement within 12 months of payment the client can go to Court to “re-open” the agreement and order taxation [sect 118(5)]. Further examples of these one-sided provisions abound – an example is section 120 relating to a client changing an A & S and ignoring the agreement for “…default, negligence, improper delay or other conduct…”

3. The Position of the Bar Council as expressed at the Forum on the Amendments held on 5-8-06

Our relevant members of the Bar Council in breach of their duty under section 57(c) of the LPA to consult all A & S, has secretly pushed through amendments to the provision for disciplinary proceedings in the LPA together with the approved (by the general body) amendments regarding the quorum and capacity to hold office for an A & S below 7 years.

That our representatives in the Bar Council had sold our rights without any initiative by the Government was clear from the discussions at the forum on the amendments held in the Bar Council premises on 5/8/06.

The Draconian Amendments

4. The Subtle Draconian Provisions

(a) Section 76(2) of the LPA is amended to give secrecy to all proceedings of inter alia the Disciplinary Board (“DB”). The principle in Jerald Allen Gomez v Shencourt Sdn bhd (Majlis Peguam, intervenor) (2006) 2 MLJ 343 has been abolished by this Amendment.

(b) Section 93(3) of the LPA is amended to provide for an A & S whether or not he is 90 years old (and probably senile) to be appointed to the very powerful post of chairman of the DB. The extent of this man’s power can be seen on a cursory reading of the L.P (Disciplinary Proceedings) (IT & DC) Rules 1994 – in particular Rules 6(5), 18 and 31.

Further, on any matter which creates a likelihood of bias or otherwise, the sole judge of that question (whether or not to recuse himself from a DB deliberation) is the person himself. The principle in Malaysian Bar v Dato’ Kanagalingam a/l Velupillai (2004) 4 MLJ 153 has been abolished by the amendments. In other words, the Chairman or the Bar Council representative have become the prosecutor judge and Jury in matters before the DB.

(c) Section 100(1) of the LPA is amended by removing the words “forthwith”. It is established fact that at present the DB takes about 1½ years to process a complaint under Section 100(1) despite the “forthwith” provision currently in the Act. Herein lies the bottleneck for the delay. One can imagine the consequences of the removal of that word in the Amendments.

It is especially serious when there is no time limit or limitation period for the complaint – not even a 6 year time limit. The absence of such time limits appears to conflict with the Bar Council Ruling on the period files must be kept before they are destroyed.

Under the amendments only when there is “merit” in the complaint can the DB deal with the complaint “forthwith”. But this is not mandatory anymore. It is discretionary by use of the word “may”. It appears that the “public interest” set out by the Supreme (Federal) Court in Majlis Peguam Malaysia & Ors v Au Kong Weng , Joseph (1993) 2 MLJ 57 i.e. that complaints against an A & S must be speedily resolved in the public interest has been legislatively overruled by the amendments! The amendments to Section 100 and 103A of the LPA reflect a tendency to support the current lackadaisical conduct of the DB. However, the Disciplinary Committee ("DC") is treated differently. The almighty members of the DB escape. It is the ordinary members of the DC who are required to comply with processing the referred complaint “expeditiously” (new Section 103B).

5. The express Draconian Provisions

(a) The (new) Section 103D is a classical draconian provision. Even after a DC has inquired into and made a finding (after spending time and money of all the parties) the DB can still:-

(i) ignore the finding and make any other order; or

(ii) mete out a greater punishment than that recommended by the DC.

The current provision that the DB may disagree with the DC and make any other order in “…exceptional cases…” to impose a greater punishment [sect 103D(1)(b)] is already harsh and unjust. Removing “…exceptional cases…” is a classical draconian provision bordering on a “Spanish Inquisition”, in breach of all notions of fair play and justice. It appears to be contrary to Articles 7(2) and 8(2) of the Federal Constitution – the supreme law.

(b) The (new) section 103E is another classical draconian provision. It provides for right of appeal only against a final decision of the DB to:-

(i) the complainant [under the new sect 100(5)]

(ii) the A & S [under the new sect 100(8), & (9)]

(iii) the A & S (under the new sect 103D)

This has in fact overruled the principle in Malaysian Bar v Dato’ Kanagalingam a/l Velupillai (2004) 4 MLJ 153 by the Federal Court.

(c) Another extremely draconian provision is the new section 103E(2). It is an “ouster section”. It purports to outlaw judicial review. The draftsman of this provision is obviously unaware of the Constitutional importance of judicial review (by the judiciary) of administrative law decisions of the Executive including inferior tribunals like the DB. A reading of a sample of cases as follows will give an education on this important area:-

(i) Malayan Banking Bhd v Association of Bank Officers, Peninsular Malaysia & Anor. (1988) 3 MLJ 204 ;

(ii) Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers’ Union (1995) 2 MLJ 317 ; cited with approval in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama–sama Serbaguna Sungai Gelugor dengan Tanggungan (1999) 3 MLJ 1

We have heard that the “appeal” provision in the amendments is adequate to protect the A & S. This attitude again displays complete ignorance of trite law principles on the differences between an appeal and judicial review. These are:-

Appeal vs. Judicial Review

(i) An appeal is always statutory and can be restricted to “final” decisions (as is the case under the Amendments) mentioned in sub para 5(b) above. It is a continuation of the legal process of the DB.

(ii) Judicial review is not statutory but is an original common law remedy reflected in the Courts of Judicature Act 1964 (section 25 thereof). It has its origins in the Common Law even prior to Malaysia Day in 1963! Section 25 speaks of “powers” and not “disabilities”.

(iii) An appeal relates to the merits of the decision by the DB whereas judicial review relates to the decision-making process of the DB.

(iv) This being so, in an appeal no affidavit evidence is usually allowed and the materials available on appeal are restricted (see Rule 4 of the Appeal Rules made under the LPA). However, in judicial review, Rule 4 is irrelevant and matters such as substantive and procedural defects; irrelevant matters; irrational decision; bias (the ultra vires concept); qualification of members of the DB (Quo Warranto) are relevant. Further, a breach of Sect 94(3) (on misconduct) of the LPA by members of the DB qua A & S can be canvassed. If this provision is not available, who is to “police” the policeman? Only the High Court can.

(v) In an appeal, resort to the broad remedies (declaration, injunction, mandamus, prohibition, etc) available in judicial review under Order 53 Rules of the High Court 1980 (“RHC”) is not available.

(vi) The recent introduction of important procedural tools like Discovery and Interrogatories available under Order 53 RHC in judicial review is not heard of in an appeal. Again, the “secrecy” provisions of the amendments rears its ugly head in an indirect form.

(vii) Because of dicta such as in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprises Sdn Bhd (1979) 1 MLJ 135 on dictatorship “… Unfettered discretion is a contradiction in terms…Every legal power must have legal limits, otherwise there is dictatorship…” and Minister of Labour, Malaysia v Lie Seng Fatt (1990) 2 MLJ 9 on arbitrariness, i.e. “..unfettered discretion is another name for arbitrariness..”, the Common Law had long ago introduced the Parliamentary presumption in construing ouster sections. The Courts presume that the ouster section was not meant by Parliament for inferior tribunals like the DB to act in excess of jurisdiction. The rationale is in Prof Jain’s Book “Administrative Law in Malaysia & Singapore” 3rd Ed, pg 783 “…it is against the fundamental concept of justice to prevent the Court from protecting citizens’ rights by deciding whether an administrative action is valid or invalid…”.

Are the representatives of the Bar Council dealing with these amendments to be classified as contributing to the erosion of this “fundamental concept of justice”?

(viii) The result of all this will be that an A & S, being what he is by training, will mount constitutional challenges to the decisions of the DB sheltered by sect 103E(2. The Law Reports are replete with cases successfully mounted by parties on the ouster section 33B of the Industrial Relations Act 1967. Prof Jain in his book aforementioned has therefore said “…no finality clause (ouster section) is regarded (by the Courts) as excluding certiorari on grounds of jurisdictional error…” (words in bracket are supplied).

(ix) That even senior members of the DB are unaware of these principles on judicial review is evident by the citation at the forum on 5-8-06 by Mr Mah Weng Kwai (in consultation with Ms Ambiga of Tetuan Choong & Co & Ors v Lembaga Tatatertib Peguam-peguam (2004) 1 CLJ 574. That case is not a judicial review case. The dicta from there is therefore irrelevant to justify an ouster section like sect 103E(2). Here is a case of “…blind reference to authority…” per E. Abdoolcader in JP Berthelsen’s case (1987) 1 MLJ 134.

6. Retrospective Legislation

The new sect 103G appears to be hasty. It displays the haste of the people behind the amendments to give the DB unbridled power. That new sect 103G (the first limb thereof) is contrary to Article 7 of the Federal Constitution and Section 30(1) of the Interpretation Acts 1948 and 1967.

7. The Solution

(a) It has been suggested that since Amendment Bill is already passed by Parliament, opponents of the draconian provisions should persuade the Minister to exercise his powers under sect 1(2) of the LPA to delay the operational dates of the aforementioned draconian provisions – especially those set out in paragraphs 4 to 6 above.

(b) However, advocates of “fiat accompli” position (since the Bill is already passed) say that sect 1(2) cannot be used in respect of amending Acts. The answer is a big ‘NO’ : See sections 34 & 35 of the Interpretation Acts 1948 and 1967. Those sections provide that in construing the principal act, the amending act should be treated as part of the principal act and construed together.