Repeal s.46A and all amendments that muzzle Resolution (23/3/2002)

The 56th AGM of the Malaysian Bar held at the Crown Princess Hotel, Kuala Lumpur - Saturday, 23 March 2002

Return the Independence of Malaysian Bar to Choose Their Own Leaders and to Conduct Their Affairs – Remove the ‘Muzzles’ in the LPA

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 28 September 2001.

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

Act on Detention Without Trial Resolution (23/3/2002)

The 56th AGM of the Malaysian Bar held at the Crown Princess Hotel, Kuala Lumpur - Saturday, 23 March 2002

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.

Contempt proceeding against Malaysia's DG of Immigration by migrant workers

A group of 36 Indian migrant workers who claim to have ‘been deceived’ by the Immigration Department today appealed to the Human Rights Commission (Suhakam) to assist them in getting valid work permits.

Fourteen of the workers representing the group handed over a memorandum to commissioner Harun Hashim at the Suhakam office this morning.

They were accompanied by their lawyers Charles Hector and Roland Engan as well as the director of Central Generative Sdn Bhd, Mohd Ali Abdul Wahid.

Their memorandum stated that their rights as workers had been violated by ‘the delay and dishonesty of the Immigration Department’ which they alleged issued them with expired work permits.

“We appeal to Suhakam to help us get our permits, noting that we have already paid the necessary levy and that what we are asking for is something that has already been ordered by the Kuala Lumpur High Court,” the workers’ spokesman Rajakannu Boopathy said.

He added that the delay by the Immigration department had deprived the group of their right to work legally in the country and had also resulted in several of the workers being arrested by police and detained at illegal immigrant detention camps.

 

Temporary work permit

Harun informed the workers that he will hand over the memorandum to the other Suhakam commissioners before deciding on a course of action.

“I can’t decide on this issue on my own. This (memorandum) will go before the commission and we will conduct an initial enquiry to establish whether there should be a public enquiry,” Harun said.

A copy of the memorandum was also handed over to the Bar Council this afternoon.

The workers’ ordeal began 20 months ago when they initiated a lawsuit against their former employer, Gopis Construction Sdn Bhd, whom they alleged failed to pay them their wages.

They then applied to the Immigration Department for permission to work on their own or alternatively be transferred to another employer.

On Dec 6 last year, the High Court ordered the Immigration Department to issue temporary work permits to the workers to enable them to work legally for a construction company, Central Generative Sdn Bhd.

 

Contempt proceedings

The workers claim that the Director-General of Immigration issued permits on April 19, but 13 of the permits had lapsed in January and February this year while the rest lapsed on July 8.

The workers are now seeking leave to commence contempt proceedings against the former Director-General of Immigration Aseh Che Mat and five other Immigration Department officers for failing to comply with the High Court order.

Their application was filed at the High Court last week and will be heard on July 25.

According to Charles Hector, existing laws in the country only allow migrant workers to complain against their employers for violation of their rights but do no provide a mechanism for the worker to continue to work and earn legally in Malaysia.

“It is thus unfeasible for them to commence legal action,” he said adding there was also no clear law and penalties against employers who violated migrant workers’ rights.

“For example, an employer must provide the Immigration Department with a contract of employment as a condition for the issuance of the work permit (the expatriate identification pass), but when the employer fails to pay wages according to that contract, the department does not penalise the employer.

“There is no enforcement against employers. In fact, these workers’ former employer, despite all his violations, is not blacklisted and continues to be given permits to recruit migrant workers,” Hector said.

 

Required skills

Central Generative director Mohd Ali told malaysiakini that his company was incurring high costs due to the Immigration department’s delay in issuing the worker’s permits.

He said that the workers’ levy fees amounting to more that RM40,000 was being borne by the company as the workers had entered a two-year contract with the company on Dec 6 last year, after the High Court order.

“We can’t just leave these workers alone now after having invested so much in them. Furthermore, we have a lot of job opportunities and we need these workers who have the skills required. 

“But we are suffering together with them because they can’t work without the permits,” Mohd Ali said.- Malaysiakini, 16/7/2001, Immigration Dept cheated us, foreign workers tell Suhakam

Bar Council To ACT on Past Resolutions of the Bar (17/3/2001)

The 55th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 17 March 2001

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.

Separation of Judicial & Legal Services Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000

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 Malaysia.

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.

Freedom of Expression, Media, Press Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000

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 Malaysia.

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 Malaysia to immediately remove all conditions and restrictions presently placed on publications, especially with regard to frequency of publication and access to all Malaysians.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Right to ONE Phone Call Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000

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 Malaysia, there is no right to a phone call. The suspect cannot inform his lawyer, his family, friends and employer of the fact of his arrest and detention.

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.

Repeal Detention Without Trial Laws Resolution (10/10/98)

The EGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 10 October 1998

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.

When a lawyer gets arrested... (Motion - sentiments accepted)

The EGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 10 October 1998

Motion 4:

Whereas

1. One of the objects of the Malaysian Bar is to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia;

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 England and come up with some concrete proposals for the Bar Council to consider.