Tuesday, August 02, 2016

Malaysian Bar stands firm in opposition to proposed amendments to LPA - news reports misleading?

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 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

Azalina: Talks still ongoing on Legal Profession Act revision
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 MayAzalina 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 

Expressions of Support for the Independence of the Malaysian Bar

Friday, 29 July 2016 10:45am
Bar Council Malaysia is grateful for the letters, press statements and other expressions of support by foreign bars, law societies, and civil society organisations for the independence of the Malaysian Bar, with regard to the proposed amendments to the Legal Profession Act 1976, including the following:

1. Message from the IBA President | Lawyers under attack (27 July 2016)
(External Link)
2. Statement by Commonwealth Lawyers Association | Supports Opposition to Proposed Changes to Malaysian Legal Profession Act (22 July 2016)
(External Link)
3. Press Statement by Gabungan Bertindak Malaysia | Amendments to the 1976 Legal Profession Act: An open attack on the independence of the Malaysian Bar (21 July 2016)
(External Link)
4. Statement by  Human RightsWatch | Malaysia: Don’t Undercut Independence of the Bar - Withdraw Proposed Amendments to Legal Profession Act (19 July 2016)
(External Link)
5. Letter to from Human Rights Watch to the Prime Minister of Malaysia | Proposed Amendments to the Legal Profession Act (19 July 2016)
(External Link)
6. Media Release by the Law Council of Australia | Law Council Backs Malaysian Bar Council over Attacks on Independence (19 July 2016)
(External Link)
7. Letter from the Law Council of Australia to the Prime Minister of Malaysia | Amendments to the Legal Profession Act 1976 (Malaysia) and Threats to the Independence of the Malaysian Bar Council (19 July 2016)
(External Link)
8. Media Release by the Australian Bar Association | Independence of the Malaysian Bar Under Threat (19 July 2016)
(External Link)
9. Letter from the Australian Bar Association to the Prime Minister of Malaysia | Threat to the Independence of the Malaysian Bar (19 July 2016)
(External Link)
10. Media Statement by Bersih 2.0 | Withdraw Amendments to the Legal Profession Act Immediately (19 July 2016)
(External Link)
11. Statement by G25 | Gov't must not compromise autonomy of Malaysian Bar (18 July 2016)
12. Letter from Hong Kong Bar Association to the Prime Minister of Malaysia | The Proposed Amendments to the Malaysian Legal Profession Act 1976 (15 July 2016)
13. Letter from President of the Law Society of England and Wales to the Prime Minister of Malaysia | The Future of the Malaysian Legal Profession (5 July 2016)
14. Joint Letter to the Prime Minister of Malaysia from Bar of England and Wales, Bar of Northern Ireland, Faculty of Advocates and Bar Human Rights Committee (4 July 2016)
15. Open Letter from LAWASIA to the Prime Minister of Malaysia | Proposal to Amend the Legal Profession Act 1976 (27 June 2016)
(External Link)
16. Message from President of the Law Society of New South Wales | Concern for the Malaysian Legal Profession (27 June 2016)
(External Link)
17. Media Statement by Centre to Combat Corruption & Cronyism (C4) | Proposed Amendments To The Legal Profession Act An Act Of Cowardice (1 June 2016)
18. Press Statement by Lawyers for Liberty | Independence of the Malaysian Bar Under Serious Threat from Proposed Amendments to the Legal Profession Act (1 June 2016)
(External Link)
Source: Malaysian Bar Website

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