Circular No 066/2016 Dated 21 Mar 2016

To Members of the Malaysian Bar and pupils in chambers

Resolutions Adopted at the 70th Annual General Meeting of the Malaysian Bar on 19 Mar 2016

The 70th Annual General Meeting of the Malaysian Bar (“AGM”) was held at Renaissance Kuala Lumpur Hotel on 19 Mar 2016 (Saturday).

1,110 Members of the Bar registered their attendance at the AGM.

The following five resolutions, which were adopted at the AGM, are attached:

(a) Resolution Regarding the Continuing Professional Development Scheme; (b) Resolution on the Attorney General, Public Prosecutor and Improvement of Public Perspective of Administration of Justice in Malaysia; (c) Resolution to Amend Order 6, First Schedule and Third Schedule of the Solicitors’ Remuneration Order 2005; (d) Resolution on the National Security Council Bill; and (e) Resolution on Internet Censorship, The Malaysian Insider, and Freedom of Expression and Opinion.

Click here to read a brief report on the AGM, and here to view the resolutions online.

On behalf of the Bar Council, I thank all Members of the Bar and pupils in chambers who attended the AGM.

Thank you.

Karen Cheah Yee Lynn Secretary Malaysian Bar

Resolutions Adopted at the 70th Annual General Meeting of the Malaysian Bar Held at Renaissance Kuala Lumpur Hotel (Saturday, 19 March 2016)

Resolution Regarding the Continuing Professional Development Scheme

WHEREAS: (1) The object and powers of the Bar in section 42(1) of the Legal Profession Act 1976 stipulate that the purpose of the Malaysian Bar shall be, inter alia: (b) to maintain and improve the standards of conduct and learning of the legal profession in Malaysia; (c) to facilitate the acquisition of legal knowledge by members of the legal profession and others; and (e) 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; and

(2) This motion is pursuant to these objects and powers, and the need for exemplary standards of professional practice, etiquette and conduct to be achieved by Members of the Malaysian Bar (“Members”), and to inculcate a culture of continuing professional development in Members.

THEREFORE, it is hereby resolved that:

A. New Entrants: Members Admitted to the Malaysian Bar from 1 July 2011 Onwards (1) The Continuing Professional Development (“CPD”) Scheme shall take effect for a 24-month cycle from 1 July 2016 until 30 June 2018. (2) The CPD Scheme shall apply to all persons who were issued their first Practising Certificate on or after 1 July 2011 (“new entrants”). (3) All new entrants shall be required to obtain a minimum of 16 CPD points per 24-month CPD cycle, or as shall be specified thereafter, from the date their first Practising Certificate is issued (“CPD requirements”).

(4) Where the new entrant’s Practising Certificate is issued after the commencement of the CPD cycle, the CPD points to be obtained during that cycle shall be prorated based on the table below:

Prorated No Duration CPD Points

(1) 12 months or more until end of the current CPD cycle 8

(2) More than or equal to 6 months, but less than 12 4 months, until the end of the current CPD cycle

(3) More than or equal to 2 months, but less than 6 months, 2 until the end of the current CPD cycle

(4) Less than 2 months until end of the current CPD cycle Nil

(5) All new entrants shall continue in the CPD Scheme unless otherwise resolved by the Members at the Annual General Meeting of the Malaysian Bar (“AGM”) in 2018.

B. Other Members: Members Admitted to the Malaysian Bar On or Before 30 June 2011 (1) The CPD Scheme shall take effect on other Members in the manner set out in Appendix 1 annexed hereto, subject to the decision of the Members at the AGM in 2018.

C. Compliance with the CPD Requirements (1) New entrants who obtain 16 CPD points within the first 24-month cycle from 1 July 2016 until 30 June 2018 shall receive two Event Vouchers for selected Bar Council and/or State Bar Committee professional development events, which will be valid for one year from the date of issue.

D. Non-Compliance with the CPD Requirements (1) Any new entrant who fails to obtain the required CPD points in any CPD cycle shall be given: (a) an automatic six-month extension to obtain the required CPD points for that cycle; and (b) a further extension not exceeding three months may be granted by the Bar Council Professional Standards and Development Committee and/or the Bar Council, if the required CPD points are not obtained within the automatic six-month extension period. The granting of an extension will not affect the number of CPD points that the new entrant will be required to obtain in any subsequent cycle.

(2) In the event of non-compliance upon the expiry of the extension(s) granted under D(1) above, the following penalties will be applicable:

No Status of CPD Point(s) at the End Amount of of the Extension Period(s) Fine (1) From 9 to 15 CPD points (inclusive) RM100 (2) From 1 to 8 CPD points (inclusive) RM200 (3) No CPD point RM500

In this regard, the Bar Council shall be authorised to take any and all action that it deems appropriate or necessary to implement D(2) above, including through the making of Rules or Rulings, or through amendments to the Legal Profession Act 1976. E. New Pupils (1) The implementation of the CPD Scheme shall be applicable for all pupils in chambers who commence their pupillage (“new pupils”) on or after 1 July 2016. (2) All new pupils will be required to obtain a total of 8 CPD points, inclusive of 4 CPD points for the Ethics and Professional Standards Course, during their pupillage, which is the duration between the date Borang 1 is filed and the dates Borang 6, 7 and 8 are filed. (3) Any new pupil who fails to obtain the required CPD points in any CPD cycle shall be given: (a) an automatic three-month extension to obtain the required CPD points for that cycle; and (b) a further extension not exceeding three months may be granted by the Bar Council Professional Standards and Development Committee and/or the Bar Council, if the required CPD points are still not obtained within the automatic three-month extension period. The granting of an extension will not affect the number of CPD points that the new pupil will be required to obtain in any subsequent cycle. (4) In the event of non-compliance upon the expiry of the extension(s) granted under E(3) above, the following penalties will be applicable:

No Status of CPD Points at the End Amount of of the Extension Period(s) Fine (1) From 1 to 7 CPD points (inclusive) RM100 (2) No CPD point RM300

In this regard, the Bar Council shall be authorised to take any and all action that it deems appropriate or necessary to implement E(4) above, including through the making of Rules or Rulings, or through amendments to the Legal Profession Act 1976.

F. Ancillary Matters (1) The Bar Council shall be authorised to take any and all action that it deems appropriate or necessary towards the implementation and enforcement of the CPD Scheme, including, if considered necessary: (a) adopting the CPD Guidelines; (b) accrediting courses, seminars, workshops, conferences and other appropriate events for the CPD Scheme; (c) organising courses, seminars, workshops, conferences and other appropriate events for the CPD Scheme; (d) putting in place measures to ensure participation in the CPD Scheme and to inculcate a culture of continuing professional development amongst Members and pupils; and (e) doing any and all such other things that are incidental or conducive to the successful achievement or betterment of the CPD Scheme. (2) The Bar Council Professional Standards and Development Committee will report on the progress of the CPD Scheme at each subsequent AGM.

Appendix 1 Members Admitted to the Malaysian Bar On or Before 30 June 2011

Exemption for Member with CPD becomes Applicable to Members who 30 years of legal practice, who No mandatory commenced legal practice on commenced legal practice from: or after: before: (1) 1 July 2018 1 July 2008 (10 years or less) 1 July 1988

(2) 1 July 2020 1 July 2005 (15 years or less) 1 July 1990

(3) 1 July 2022 1 July 1992 (20 years or less) 1 July 1992

(4) 1 July 2024 1 July 1984 (30 years or less) 1 July 1994

Motion on the Attorney General, Public Prosecutor and Improvement of Public

Perspective of Administration of Justice in Malaysia

WHEREAS: (1) It is important that the Attorney General, who is also the Public Prosecutor, is both independent, and perceived to be independent, especially when it comes to prosecuting persons and entities that have broken Malaysian laws, irrespective of whether they are currently Ministers, holding senior positions in public service and/or legal entities owned by the government. (2) It is the Attorney General, as Public Prosecutor, who is vested with the power to prosecute persons and/or entities that have acted against the laws of Malaysia, including criminal laws. (3) Of late, there have been several allegations of corruption and/or other breaches of the law made against Najib Tun Razak, who is also the current Prime Minister of Malaysia and Minister of Finance, in connection with large amounts of monies, amounting to more than RM2 billion, that were found in the personal bank accounts of Najib Tun Razak. (4) There have been allegations of wrongdoings with regard to a Malaysian government- owned company, 1MDB, SRC International and/or other related companies, where Najib Tun Razak also sits as the Chairman of the Board of Advisors of the said 1MDB. (5) Investigations have been commenced by the relevant authorities including the Malaysian Anti-Corruption Commission (“MACC”). (6) In the midst of investigations about these alleged offences, Tan Sri Abdul Gani Patail’s services as Attorney General was suddenly terminated as of about 27 July 2015, and Tan Sri Mohamed Apandi Ali was appointed new Attorney General effective 27 July 2015. (7) Our Federal Constitution states that it is “on the advice of the Prime Minister” that the Yang Di-Pertuan Agong appoints the Attorney General. In practice, this means that the Prime Minister decides on the appointment and removal of the Attorney General. (8) Now, given the fact that this happened when there was an ongoing investigation of Najib Tun Razak personally, and also matters that concern the Minister of Finance, who is also Najib Tun Razak, there are concerns about the appointment of the new Attorney General. (9) In early December 2015, Prime Minister Najib Tun Razak was scheduled to provide an explanation to Parliament about all these allegations. However, he did not do so, apparently on the advice of the Attorney General. (10) The Malay Mail Online report dated 3 December 2015 stated, amongst others, that (emphases added): Prime Minister Datuk Seri Najib Razak was only acting on the Attorney General’s (AG) advice in declining explaining personally in

5 Parliament the RM2.6 billion donation he received, Datuk Seri Azalina Othman [Minister in the Prime Minister’s Department] said today . . . . the federal government made a collective decision to issue a ministerial statement in their response to questions after AG Tan Sri Apandi Ali said Najib may be risking “subjudice” if he attempted to answer in person with investigations into the surrounding controversy still ongoing. “The AG is the government's lawyer. We are guided by his advice”… (11) The Attorney General, whilst also acting as Public Prosecutor involved in the ongoing investigation which may lead to the prosecution of Najib Tun Razak, Government of Malaysia, Government-Owned Companies and/or GLCs, should not also be providing legal advice to those being investigated? (12) The results of the investigations of the MACC were submitted to the Public Prosecutor to consider commencement of trial, but as reported on 26 January 2016 in New Straits Times which stated, amongst others (emphasis added): …Attorney-General Tan Sri Mohamed Apandi Ali said their investigation had showed that the prime minister had committed no wrongdoing in the cases. . . . “I am satisfied that there was no evidence to show that the donation was a form of gratification given corruptly. The evidence showed that the donation was not an inducement or reward for doing or forbearing in relation to his capacity as a prime minister,” he said. He said that investigation also showed that in Aug 2013, a sum of USD620 million (RM2.03 billion) was returned by Najib to the Saudi royal family, as the sum was not utilised. No mention was made about what the monies were for, and for what were some of the monies utilised. (13) The report also stated (emphases added): The Attorney-General’s Chambers today cleared Prime Minister Datuk Seri Najib Razak of any criminal wrongdoing in the case involving a donation from the Middle East, as well as that involving SRC International. The AG’s Chambers will also return the three investigation papers on the cases, and has instructed the Malaysian Anti-Corruption Commission (MACC) to close the IPs. (14) The pronouncement of the Attorney General about the guilt/innocence of parties being investigated, may be contrary to the United Nations Guidelines on the Role of Prosecutors, in particular Article 10, which states that, “The office of prosecutors shall be strictly separated from judicial functions”. The determination of guilt or innocence is a function of the Judiciary, not the Attorney General. (15) The power to commence investigations and discontinue investigations rests with the relevant investigative authorities, and not with the Attorney General/Public Prosecutor. The duty of the Public Prosecutor is merely to determine the sufficiency or insufficiency of evidence for the purpose of prosecution, and if it is determined that

6 the evidence is insufficient, then investigation papers are returned to the investigating authorities to do further investigation. (16) On 24 February 2016, the MACC issued a statement on the advice of its Operation Review Panel concerning the case involving SRC International and allegations regarding the RM2.6 billion (“berhubung kes membabitkan SRC International dan dakwaan wang derma RM2.6 bilion”). (17) The Operation Review Panel agreed that the MACC should re-submit the investigation papers concerning SRC International to the Attorney General for his consideration. With regard to the matter of the investigation concerning the RM2.6 billion, it acknowledges that the investigation is yet to be completed, and urges the MACC to apply to the Attorney General to issue the required permission for Mutual Legal Assistance to enable the MACC to get evidence and documents from financial institutions in other countries in connection with the RM2.6 billion investigation. The relevant text from the MACC statement (which was in Bahasa Malaysia) is as follows (emphases added): …PPO bersetuju bahawa SPRM perlu mengemukakan kembali kertas siasatan berhubung SRC International kepada Peguam Negara untuk pertimbangan. Memandangkan siasatan SPRM berhubung dakwaan wang derma RM2.6 bilion masih belum lengkap, Panel telah mengesyorkan agar SPRM meneruskan siasatannya dan memohon Peguam Negara agar mengeluarkan kebenaran Bantuan Undang- undang Bersama (MLA) bagi SPRM memperoleh bukti dan dokumen- dokumen daripada institusi kewangan di luar negara sebagai sebahagian daripada siasatan ke atas isu RM2.6 bilion… (18) The MACC’s request for the necessary action by the Attorney General for Mutual Legal Assistance is not new. It was also made before, in December 2015, as reported in Bloomberg Business. Despite efforts made, the said MACC statement could not be accessed from the MACC website. …The Malaysian Anti-Corruption Commission said it made several proposals and recommendations for action in the case, according to a statement Thursday. While it has completed investigations involving witnesses in the country, the MACC said it still needs permission from the attorney general to get documents and evidence from overseas financial institutions. “This evidence can only be taken by the Mutual Legal Assistance process because it is tied to the provision of banking legislation of the country concerned,” the agency said. “MACC has made an application under the MLA to attorney general to obtain documents and evidence.” — “Malaysian Anti-Graft Agency Submits Probe Results of Najib Funds”, Bloomberg Business, 31 December 2015 (emphasis added). (19) On the face of it, it looks like the Attorney General has procrastinated in providing the necessary permission for Mutual Legal Assistance, which was essential for the completion of investigations, and this could be perceived as an act “obstructing” criminal investigations.

7 (20) It is now revealed that Mohamed Apandi Ali is a Director of the Lembaga Urusan Tabung Haji, whereby the date of appointment is uncertain. (21) An Attorney General, also the Public Prosecutor, should not be Director of any legal entity, as this would compromise his independence. (22) The Federal Constitution, in Article 145, stipulates, among others, as follows: (1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation. (2) It shall be the duty of the Attorney General to advise the Yang di- Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law. (3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial. (23) The Attorney General, as such, has many roles and responsibilities, and some of these are competing obligations and, if exercised at the same time is impossible. It is absurd when the Attorney General is considering instituting criminal proceedings, and at the same time is also seen to be personally providing legal advice to the suspect(s) or the potential accused. (24) The Federal Constitution, in Article 8, states that, “All persons are equal before the law and entitled to the equal protection of the law.” As such, it can be said that no one is above the law, even the Prime Minister or a government-owned legal entity. When a person and/or legal entity commits an offence, it is the Attorney General, without any other special consideration or treatment, to do the needful to institute, conduct or discontinue any proceedings for an offence. (25) Article 12 of the UN Guidelines on the Role of Prosecutors stipulates: “Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.” (26) Article 13(a) of the said Guidelines states (emphasis added): “In the performance of their duties, prosecutors shall carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kinds of discrimination”. (27) Prosecutors shall perform their duties without fear, favour or prejudice. Public Prosecutors’ powers should be exercised independently and be free from political interference.

8 (28) If the Attorney General is unable to act as Public Prosecutor, then rightly he should not. Malaysian law, in 376(2) of the Criminal Procedure Code (Act 593), states (emphasis added): “The Solicitor General shall have all powers of a Deputy Public Prosecutor and shall act as Public Prosecutor in case of the absence or inability to act of the Attorney General.” (29) As such, in this case involving Najib Tun Razak, the Prime Minister and Minister of Finance of Malaysia, and government-owned companies, Mohamed Apandi Ali clearly is unable to act as Public Prosecutor, and the Solicitor General should act as Public Prosecutor. (30) With reference to the abovementioned and other matters, the following points of concern, among others, have arisen concerning Attorney General Mohamed Apandi Ali: (a) The manner and timing of his appointment raises the perception that Mohamed Apandi Ali may have been appointed to speedily replace a Public Prosecutor who may have proceeded to institute criminal proceedings against Najib Tun Razak (the current Prime Minister) and/or against legal entities owned and/or controlled by the Government; (b) That there may exist a perception that Mohamed Apandi Ali may have acted to derail or delay investigations against Najib Tun Razak (the current Prime Minister) or against legal entities owned and/or controlled by the Government. The fact that the MACC, which has been asking for the required Attorney General’s permission since December 2015 for usage of the Mutual Legal Assistance that is required to obtain evidence and documents from financial institutions in other countries, has yet to be given the relevant authorisation required to complete investigation, is a matter of concern; (c) That Mohamed Apandi Ali may have failed to have acted professionally as a Public Prosecutor, when it was alleged that he had advised the Prime Minister Najib Tun Razak, the suspect and possible future accused in an ongoing criminal investigation, to not provide an explanation to Parliament; (d) That Mohamed Apandi Ali allegedly attempted to speedily clear Najib Tun Razak and SRC International of alleged crimes, including corruptions and/or other breaches of law, and to stop investigations; (e) The failure of Mohamed Apandi Ali to acknowledge that in these circumstances when the Prime Minister and Government were the subject of investigations, he would be unable to perform the duties of the Public Prosecutor as required by law, and thereby should have disqualified himself, enabling the Solicitor General to carry out the duties and obligations of the Public Prosecutor, while he as Attorney General continued to carry on his role as adviser and “government lawyer” to the Prime Minister, Cabinet and Government; and (f) The fact that he still is a Director of Lembaga Urusan Tabung Haji, and maybe also other companies and/or legal entities, raises the question of his independence, and his ability to carry out the duties of the Attorney General impartially, without fear and favour.

9 (31) As such, even if Mohamed Apandi Ali may personally not be guilty of any wrongdoing or dereliction of duties, for the good of Malaysia and for the improvement of public perception of the administration of justice, we may have to take drastic actions, including the appointment of a new Attorney General. (32) The public need to have confidence in the integrity of the criminal justice system, whereby prosecutors play a crucial role in the administration of criminal justice, and as such prosecutorial discretion should be exercised independently and be free from political interference. (33) Events of the recent past, especially concerning the RM2.6 billion, have eroded the confidence in the integrity of the criminal justice system, and immediate and even drastic steps need to be taken to restore confidence in the administration of criminal justice, for the good of Malaysia. THEREFORE, it is hereby resolved:

(A) That the Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as Attorney General, for the good of Malaysia, to restore public confidence and perception of the rule of law, in particular the administration of criminal justice in Malaysia. (B) That the Malaysian Bar calls for the Solicitor General, pursuant to section 376(2) of the Criminal Procedure Code, to assume the role and responsibilities of Public Prosecutor in the cases involving Najib Tun Razak, 1MDB, SRC International and the RM2.6 billion, considering the disability of the Attorney General to continue to act as Public Prosecutor for these cases, by reason of past conduct and the existing competing and conflicting roles of the Attorney General. (C) That the Malaysian Bar also calls on Attorney General Mohamed Apandi Ali to immediately resign as Director in Lembaga Urusan Tabung Haji, and any positions held in companies, statutory body and/or legal entities, save those positions that the law specifically requires. (D) That the Public Prosecutor and prosecutors should always not only be independent but also be seen to be independent. They should not be receiving any other income, “donations” or benefits from any other sources. They should also not be Directors of companies, or holding any other positions in legal entities, save those specifically provided for in law. (E) That the Malaysian Bar promotes and works towards the adoption and application of the principles contained in the UN Guidelines on the Role of Prosecutors, and such international standards, in Malaysia. (F) That the Malaysian Bar promotes the establishment of an independent commission or committee for the purposes of the selection and recommendation to the Yang Di- Pertuan Agong for the appointment of the Attorney General. (G) That the Malaysian Bar continues doing all that is necessary to promote the rule of law, and a just administration of justice in Malaysia.

10 Resolution to Amend Order 6, First Schedule and Third Schedule of the Solicitors’ Remuneration Order 2005

WHEREAS: (1) The remuneration of a solicitor in respect of non-contentious business is governed by the Solicitors’ Remuneration Order 2005 (“SRO 2005”).

(2) The SRO 2005 came into force on 1 January 2006, and there is to be no discount on fees specified in the SRO 2005 although a reduced rate of the scale fee is applicable for any transactions governed by the Housing Development (Control and Licensing) Act 1966.

(3) The rate of the scale of fees prescribed by the SRO 2005 was last revised by the Solicitors Costs Committee on 12 December 2005, ie more than 10 years ago.

(4) Taking into consideration:

(a) the recommendations of the Bar Council Conveyancing Practice Committee on 14 November 2015 for the Bar Council to take appropriate steps to increase the rate of the scale of fees in respect of specified non-contentious business, to enable Members of the Bar to cope with the increase in costs in conducting such non-contentious business;

(b) the Malaysian Bar at the Annual General Meetings of 13 March 2010, 14 March 2009 and 22 October 2005 rejected motions to abolish the “No Discount Rule”, although a majority of Members of the Bar who responded in a referendum1 and in a survey2 conducted by the Bar Council expressed their view that the scale of fees be maintained, but that they be allowed the discretion to give a discount on the scale of fees;

(d) the interests of members of the public;

the Bar Council has decided that the following steps be taken in respect of the scale fees for non-contentious business:

(i) that the remuneration of a solicitor in respect of non-contentious business be continued to be fixed in accordance with a scale of fees that provides for a maximum and minimum fee that can be charged;

(ii) that the rate of the scale of fees in respect of specified non- contentious business be increased; and

1 Referendum conducted in 2001 by the Bar Council. 2 Survey conducted in 2003 by the Bar Council.

(iii) that Members of the Bar be permitted to grant a discount of up to 25% on the fees for specified non-contentious business.

(5) A Schedule containing the present scale of fees chargeable by a solicitor, and the proposed new scale of fees that may be charged, is annexed herewith as APPENDIX I.

(6) Recognising that the remuneration of solicitors in respect of non-contentious matters under a scheme of scale fees is fair and workable across the board only where there is full compliance by all Members of the Bar, and recognising that the Solicitors’ Remuneration (Enforcement) Rules 2004 (“SRER 2004”) was invalidated by the High Court,3 the Bar Council is to finalise and pursue the implementation of a new set of rules for enforcement of the SRO 2005 as amended herein.

THEREFORE, it is hereby resolved that:

(1) The Bar Council shall take all necessary steps to cause the Solicitors Costs Committee to be convened pursuant to Section 113(2) of the Legal Profession Act 1976, to make the following orders pertaining to remuneration of solicitors: (a) Order 6 of the SRO 2005 is amended as follows (amendments as marked):

6. No discount Discount

(1) A solicitor may give a discount of up to 25% on fees specified in the First and Third Schedules, except for any transaction governed by the Housing Development (Control and Licensing) Act 1966 [Act 118] or any subsidiary legislation made under that Act.

(2) There shall be no discount on fees specified in this Order the Second, Fourth, Fifth and Sixth Schedules.

3 See the case of Abdul Razak bin Hashim v Badan Peguam Malaysia [Kuala Lumpur High Court Originating Summons No. R2-17-5-2006] (Unreported).

(b) The First Schedule to the principal Order is amended as follows (amendments as marked):

Consideration or Adjudicated Value Scale of Fees (whichever is higher)

For the first RM150,000 RM500,000 1.0% (subject to a minimum fee of RM300 RM500)

For the next RM850,000 RM500,000 0.7% 0.8% For the next RM2,000,000 0.6% 0.7%

For the next RM2,000,000 0.5% 0.6%

For the next RM2,500,000 0.4% 0.5%

Where the consideration or adjudicated Negotiable on the excess value is in excess of RM7,500,000 (but shall not exceed 0.4% 0.5% of such excess)

Notwithstanding the above rates, in the case of any transaction governed by the Housing Development (Control and Licensing) Act 1966 [Act 118] or any subsidiary legislation made under that Act, the remuneration of the solicitor having the conduct of and completing the transaction, whether acting for the vendor or the purchaser, shall be—

(a) RM250 RM300, if the consideration is RM45,000 RM50,000 or below;

(b) 75% of the applicable scale fee specified, if the consideration is in excess of RM45,000 RM50,000 but not more than RM100,000 RM250,000;

(c) 70% of the applicable scale fee specified, if the consideration is in excess of RM100,000 RM250,000 but not more than RM500,000; or

(d) 65% of the applicable scale fee specified, if the consideration is in excess of RM500,000.

Amount secured or financed Scale of Fees

For the first RM150,000 RM500,000 1.0% (subject to a minimum fee of RM300 RM500)

For the next RM850,000 RM500,000 0.7% 0.8%

For the next RM2,000,000 0.6% 0.7%

For the next RM2,000,000 0.5% 0.6%

For the next RM2,500,000 0.4% 0.5%

Where the amount secured or financed Negotiable on the excess is in excess of RM7,500,000 (but shall not exceed 0.4% 0.5% of such excess)

. . .

(a) RM250 RM300, if the consideration as well as the loan sum is RM45,000 RM50,000 or below;

(b) 75% of the applicable scale fee specified, if the consideration as well as the loan sum is in excess of RM45,000 RM50,000 but not more than RM100,000 RM250,000;

(c) 70% of the applicable scale fee specified, if the consideration as well as the loan sum is in excess of RM100,000 RM250,000 but not more than RM500,000; or

(d) 65% of the applicable scale fee specified, if the consideration as well as the loan sum is in excess of RM500,000.

(2) The Bar Council is hereby mandated to take any and all such further action as it deems appropriate or necessary in order to amend Order 6, the First Schedule and the Third Schedule of SRO 2005.

(3) The Bar Council is hereby further mandated to take any and all such further action as it deems appropriate or necessary to cause a revised Solicitors’ Remuneration (Enforcement) Rules to be implemented pursuant to Section 77 of the Legal Profession Act 1976, and to ensure strict compliance by all Members of the Bar.

APPENDIX I

First Schedule and Third Schedule of the Solicitors' Remuneration Order 2005

Purchase Price 2005 New Proposed Rate 25% Discount

RM100,000.00 RM1,000.00 RM1,000.00 RM750.00 RM150,000.00 RM1,500.00 RM1,500.00 RM1,125.00 RM200,000.00 RM1,850.00 RM2,000.00 RM1,500.00 RM250,000.00 RM2,200.00 RM2,500.00 RM1,875.00 RM300,000.00 RM2,550.00 RM3,000.00 RM2,250.00 RM350,000.00 RM2,900.00 RM3,500.00 RM2,625.00 RM400,000.00 RM3,250.00 RM4,000.00 RM3,000.00 RM450,000.00 RM3600.00 RM4,500.00 RM3,375.00 RM500,000.00 RM3,950.00 RM5,000.00 RM3,750.00 RM600,000.00 RM4,650.00 RM5,800.00 RM4,350.00 RM700,000.00 RM5,350.00 RM6,600.00 RM4,950.00 RM800,000.00 RM6,050.00 RM7,400.00 RM5,550.00 RM900,000.00 RM6,750.00 RM8,200.00 RM6,150.00 RM1,000,000.00 RM7,450.00 RM9,000.00 RM6,750.00 RM1,200,000.00 RM8,650.00 RM10,400.00 RM7,800.00 RM1,400,000.00 RM9,850.00 RM11,800.00 RM8,850.00 RM1,600,000.00 RM11,050.00 RM13,200.00 RM9,900.00 RM1,800,000.00 RM12,250.00 RM14,600.00 RM10,950.00 RM2,000,000.00 RM13,450.00 RM16,000.00 RM12,000.00 RM2,200,000.00 RM14,650.00 RM17,400.00 RM13,050.00 RM2,400,000.00 RM15,850.00 RM18,800.00 RM14,100.00 RM2,600,000.00 RM17,050.00 RM20,200.00 RM15,150.00 RM2,800,000.00 RM18,250.00 RM21,600.00 RM16,200.00 RM3,000,000.00 RM19,450.00 RM23,000.00 RM17,250.00 Resolution on the National Security Council Bill

Whereas:

(1) The National Security Council Bill (“NSC Bill”) had its first reading in the Dewan Rakyat on 1 December 2015 and was passed on 3 December 2015 by a voice vote, without sufficient time for public consultation and legislative scrutiny;

(2) The NSC Bill was passed on 22 December 2015 by the Dewan Negara on a voice vote;

(3) Datuk Seri Shahidan Kassim, Minister in the Prime Minister’s Department, justified its introduction as necessary to improve and strengthen national security, through the establishment of a National Security Council, the declaration of security zones, and the granting of special powers to the security forces;

(4) During the debates in the Dewan Rakyat and Dewan Negara, members from both sides of the Houses expressed deep concern about the wide-ranging nature of the NSC Bill and the extensive powers that it would confer upon the NSC. In particular, the NSC Bill raises issues regarding:

(a) the constitutionality of granting powers to the Prime Minister to declare a “security area”, when the current framework of the Federal Constitution provides only for the Yang DiPertuan Agong to declare a state of emergency under Article 150;

(b) the constitutionality of placing the security forces, which includes the armed forces, under the command and control of the NSC when Article 41 of the Federal Constitution provides that the Yang DiPertuan Agong is the Supreme Commander of the Armed Forces;

(d) the appropriateness of retrospectively legitimising the operations of the already-existing NSC, which has been functioning without any legal basis since June 2012;

(e) the extensive powers granted to the security forces to operate within security zones, including powers of search and seizure, arrest and detention, eviction from and destruction of property;

(f) the dispensation on the part of a magistrate or coroner of the need to hold a death inquiry or an inquest in relation to any deaths occurring within a security area; and

(g) extending the immunity of the security forces beyond the existing provisions of the Government Proceedings Act and the Public Authorities

17 Protection Act Malaysia to include immunity from tortious liability for any act of commission or omission done or omitted to be done in good faith;

(5) It has been reported in the media that the Majlis Raja-Raja has also expressed concern about the NSC Bill and has recommended that it be refined;1

(6) The passing of the NSC Bill represents the granting of unbridled power to the Executive, which is not matched by the enactment of any safeguards constraining the same; and

(7) The enactment of the NSCB is tantamount to reintroducing wide and arbitrary executive powers previously repealed under the Internal Security Act 1960 and enlarging the sphere of Executive authority which is immune from public accountability, in complete and utter disregard to the proper rule of law and the administration of justice.

Now it is hereby resolved that:

The Malaysian Bar:

(1) Rejects the passing of the NSC Bill, and calls upon the Government not to bring the NSC Bill into force without first making extensive revisions to its provisions, in particular:

(a) to provide for the setting-up of a purely advisory NSC that will have responsibility only for advising the Government on, and developing recommendations for, a national security policy; and

(b) to remove all provisions of the NSC Bill dealing with the operations of security forces, which should instead abide by their existing operational guidelines, procedures and in accordance with their respective chains of command and control; and

(2) Authorises the Bar Council to undertake all appropriate activities in order to give effect to this resolution.

1 “Conference of Rulers wants Security Council Bill refined”, The Star Online, 18 February 2016 (http://www.thestar.com.my/news/nation/2016/02/18/conference-of-rulers-wants- security-council-bill-refined/).

18 Resolution on Internet Censorship, The Malaysian Insider, and Freedom of Expression and Opinion

WHEREAS:

(1) Access to the website of alternative online media, The Malaysian Insider, has been denied to Malaysians by the Malaysian Communications and Multimedia Commission (“MCMC”).

(2) A visit to the said website will disclose, amongst others, the following statement: “Access to this site has been denied under Section 263(2) Communications And Multimedia Act 1998 as it violates the following Malaysian law: … Breached provision section 233 Communications and Multimedia Act 1998.”

(3) In the case of the Malaysian Chronicle website, another alternative media outlet, all that one sees is (emphasis added): “This website is not available in Malaysia as it violate(s) the National law(s).” There is even no mention of what laws have been breached and under what provision is the site blocked.

(4) A statement in Bahasa Malaysia dated 25 February 2016, which did not even indicate the name of the person who issued the statement, in the MCMC website, confirms that it is the MCMC that blocked The Malaysian Insider website.

MCMC SEKAT LAMAN THE MALAYSIAN INSIDER CYBERJAYA, 25 Februari 2016 --- Suruhanjaya Komunikasi dan Multimedia Malaysia (MCMC) telah menyekat laman The Malaysian Insider ekoran tindakan portal berkenaan yang telah mengeluarkan kandungan-kandungan yang menjurus kepada kesalahan di bawah Seksyen 233, Akta Komunikasi dan Multimedia 1998. Sekatan tersebut juga dilakukan oleh MCMC berdasarkan aduan-aduan dan maklumat yang diterima daripada orang ramai. Sehubungan itu, MCMC memperingatkan portal-portal berita agar tidak menyebarkan atau menyiarkan artikel-artikel yang tidak ditentukan kesahihannya. Ini kerana, tindakan sedemikian boleh mengundang kekeliruan dan mencetuskan situasi yang tidak diingini.

SEKIAN

(5) The reason seems that The Malaysian Insider had published contents that amount to a violation of section 233 of the Communications and Multimedia Act 1998. There are, however, no details whatsoever, as to what the alleged violation was — no mention of

19 date and time, no mention of which particular report, and no mention of the particulars of the statements that allegedly were in breach of section 233. Section 233(1) and (2), which contains the offence is as follows (emphases added): Section 233 Improper use of network facilities or network service, etc (1) A person who – (a) by means of any network facilities or network service or applications service knowingly – (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or (b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence. (2) A person who knowingly – (a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or (b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a), commits an offence. (6) A perusal of section 233(1) will see that it is just too broad and vague, and is open to abuse. For example, the highlighting of violation of human rights or laws, or facts connected to alleged violations of rights/laws, would likely “annoy” or even “harass” the wrongdoer, and for the alleged wrongdoer, it could also be said to be “menacing and offensive”. This should never be considered an offence.

(7) As such, this section deters even the highlighting of human rights abuses, breaches of law and even possible government wrongdoing. This section even deters the sharing of such relevant and important facts, and/or opinions over the internet.

(8) Section 233(1), together with section 263(2), violates even the very assurance provided for in section 3(3), which states (emphasis added), “Nothing in this Act

20 shall be construed as permitting the censorship of the Internet.” The blocking of access to websites like The Malaysian Insider, could hardly be said to be not “censoring the internet”.

(9) Section 263(2) states (emphases added): “(2) A licensee shall, upon written request by the Commission or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.”

(10) The wordings of section 263(2) suggest the ability to block website/s or website access (and/or “censor”) for the purpose of preventing a possible offence or an attempt to commit an offence — as such, it is akin to a “preventive detention” law like our former Internal Security Act 1960 (“ISA”). This means websites, blogs and other social media can be prematurely blocked even before any crime has been committed. Was The Malaysian Insider website access blocked because there was some “suspicion” that The Malaysian Insider may breach some law in the future?

(11) We remind ourselves of the legal principle that is the “presumption of innocence until proven guilty. No one can be said to have breached any law until the court, after a trial, determines whether one is guilty or not. No administrative authority and/or executive body can arbitrarily determine whether one has breached the law or not — all they can do is allege for it is the courts that determine whether a law is breached or not.

(12) The other use of section 263(2) is for the enforcing of the laws in Malaysia — and, the question is which law is it enforcing, and does the said law allow the blocking of access to the internet or any particular website, remembering the guarantee that there will be no “censoring of the internet”.

(13) What makes it even more dangerous is that, unlike the draconian ISA and Detention Without Trial laws, which require a Minister’s order, here all that is required is not even an order but merely a “written request by the Commission or any other authority” — this is unacceptable.

(14) An ISA detention order by a Minister could be subject to judicial review, but here under section 263(2), we only have a “written request”, that too directed to the licensee, which seems to be the internet service providers, and not even the affected website like The Malaysian Insider, making it even more difficult to appeal. Hence, the victim may be deeply prejudiced — not having the ability to appeal to higher authorities, let alone proceed with a judicial review.

(15) In Malaysia, when a person is deprived of his rights or freedoms, like in an arrest, the enforcement authority can only hold him/her for 24 hours, and for further detention a court remand order is required.

21 (16) However, in this case of “blocking access to internet websites”, which we now know can last indefinitely, there is no requirement for any court order, and as such this is grossly unjust.

(17) In the case of The Malaysian Insider, there were also no material particulars as to which was the “offending” article, and what was wrong with it.

(18) Even if there was some offending report, a reasonable action would have been blocking access to the particular report/article — not the blocking of the entire media website.

(19) In Parliament, the Deputy Minister of Communications and Multimedia Datuk Jailani Johari “ … said the government had on January 19 formed a special committee to monitor the use of the internet and social media platforms, with the panel chaired by minister Datuk Seri Salleh Said Keruak and comprising representatives from his ministry, the Malaysian Communications and Multimedia Commission (MCMC), the police and the Attorney-General Chambers … to ensure stern action on those using social media to plant hate against government institutions and prevent social media from becoming the cause of the incitement of discord through the propagation of lies, hatred and religious extremism …” (Malay Mail, 8 March 2016).

(20) In the said report, it also disclosed that since 19 January until February, “the MCMC has probed 22 cases of internet misuse and blocked a total of 399 websites.” The law does not give the MCMC the specific power to block access to websites.

(21) No material particulars were given as to which websites have been blocked and for what specific reason they were blocked. One could not find even on the MCMC website a listing of the websites blocked, and the reasons for the blocking of access. Hence, not only are the owner/s of the said websites deeply prejudiced, but also we who do not want internet censorship.

(22) Even if it was a pornographic or gambling website, there must be a requirement for a court order for the blocking of access. It should be noted that now many local and foreign media websites, websites/blogs of individuals and civil society organisations are also being blocked arbitrarily. In all cases, the owners of the websites must be given due notice and the opportunity to be heard.

(23) The Malaysian Bar, in its 1 March 2016 press statement, amongst others, said: “ … The right to information, or the right to know, is implicit in the guarantee of freedom of speech and expression that belongs to every citizen, as enshrined in Article 10(1)(a) of the Federal Constitution. Indeed, a true democracy envisages a meaningful right to know … The blocking of access to websites is a serious curtailment of the right to know, as it thwarts the flow or dissemination of information, thoughts and ideas. This renders the constitutional guarantee in Article 10(1)(a) vacuous or meaningless … Further, a critical and complementary aspect of the fundamental right to freedom of speech and expression is contained in Article 19 of the Universal Declaration of Human Rights, which states: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’” 22 THEREFORE, it is hereby resolved that:

(A) That we, the Members of the Malaysian Bar, and the Malaysian Bar, call on the Malaysian Government to stop censorship of the internet.

(B) That we, the Members of the Malaysian Bar, and the Malaysian Bar, call for immediate unblocking and restoring internet access to The Malaysian Insider, Malaysian Chronicle and all such media sites and blogs that publish information, opinions and views.

(C) That we, the Malaysian Bar calls for the repeal of section 263, section 233 and such vague provisions in the Communications and Multimedia Act 1998.

(D) That the Malaysian Bar calls for the repeal of all such laws that allow for the deprivation of human rights and freedoms by executive and/or administrative authorities, without the necessary requirement of a court order.

(E) That the Malaysian Bar review Malaysian laws, and highlight laws and/or provisions therein that is contrary to international human rights standards.

(F) That the Malaysian Bar uphold the rule of law, including the right to be heard and a fair trial.