minutes 66th AGM of the Malaysian Bar | 10 Mar 2012

Held on 10 Mar 2012 (Saturday) at 10:00 am at the Grand Ballroom, Sunway Putra Hotel, Kuala Lumpur

The Chairman, Lim Chee Wee, called the 66th Annual (15) Nik Hashim b Nik Daud General Meeting of the Malaysian Bar (“AGM”) to order (16) Pushpam d/o Subramaniam at 10:50 am when the quorum had been reached. He (17) Raja Aziz Addruse invited Members of the Bar to rise and observe a minute (18) Ramalingam s/o Thanni Malai of silence in memory of the following Members who (19) Ramiah, Anpalagan had passed away during the term under review. The (20) Ranjit Singh s/o Jag-jit Singh Bar recorded its deepest condolences to the families (21) Sinnu s/o Marappan and loved ones of: (22) Tan Tan Bok @ Chen Chanple (23) Tay Leong Siak (1) Arifin b Haji Jaka (24) Thaiyub Khan b M M Othuman Aliar (2) Abdul Aziz b Mohd Zain (25) Yap Wai Kit (3) Badariah bt Yahya (4) Ch’ng Theam Inn Item 1 of the agenda (5) Ghandinesen s/o Kanapathi Pillai, K To consider and, if approved, to adopt the minutes of (6) Harold Livera Tennakoon the 65th AGM held on 12 Mar 2011 (7) Ho Thian Cheh (8) Lal Harcharan Singh There being no amendments, the minutes were (9) Liew Teck Keong adopted, as proposed by Baljit Singh of the Kuala (10) Mahadevi d/o Nadchatiram Lumpur (“KL”) Bar and seconded by P Arudkumaran of (11) Mat Zain b Sulaiman the Selangor Bar. (12) Narayanan s/o Sukumaran (13) Ng Fook Loy Item 2 of the agenda (14) Ng Yeong Lee To discuss matters arising from the 65th AGM

Item Subject Update (1) Role of LawyersTalk e-group Bar Council (“BC”) is considering the suggestion made by some Members that the LawyersTalk e-group be used as an official channel of communication. However, BC already has a platform for online discussion, which is the “Forum” section of the Malaysian Bar website.

As and when important issues were raised in the LawyersTalk e-group, the Secretary responded by issuing circulars to Members or providing information on the website. (2) Proposed amendment to Solicitors’ The BC Conveyancing Practice Committee recently submitted a Account Rules 1990 relating to revised proposed amendment for BC’s consideration. issuance of cash cheques from a client account

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Item Subject Update (3) Proposed amendment to section 95 Memorandum prepared by the BC Family Law Committee has been of Law Reform (Marriage & Divorce) sent to the Attorney General’s Chambers; Ministry of Women, Act 1976 to make fathers liable for Family and Community Development; Ministry of Home Affairs; maintenance of their children beyond and the Minister in the Prime Minister’s Department in charge of 18 years of age Law.

The Family Law Committee plans to launch a public campaign regarding the proposed amendment to section 95, and publicise it on the Malaysian Bar website to encourage Members of the Bar to come forward with clients who are willing to share their stories publicly. (4) Availability of manual registration at During a meeting between the BC Conveyancing Practice Stamp Offices Committee and Lembaga Hasil Dalam Negeri (“LHDN”) on 29 Sept 2011, LHDN stated that there are counters for manual registration at all its branches.

In a subsequent letter dated 30 Nov 2011, LHDN confirmed that manual registration is available at all Stamp Offices. (5) Inclusion of the attendance record of Many committee members, including those outside the Klang committee members in the reports by Valley, contribute actively to committee work through emails and/ committees or attending meetings with external parties, without attending committee meetings.

Attendance at committee meetings alone is therefore not an adequate or accurate indicator of a committee member’s level of participation or contribution. (6) Proposed committee on climate The BC Environment and Climate Change Committee was set up at change the beginning of the 2011/12 term, during which it was co-chaired by Roger Chan Weng Keng and Chew Swee Yoke. The Committee’s report is included in the 2011/12 Annual Report. (7) Balance sheet for the Discipline Fund Although the amount of fixed deposits for the Discipline Fund increased from RM2,967,385 in 2009 to RM3,191,310 in 2010, interest earned dropped from RM103,485 in 2009 to RM79,332 in 2010. This decrease was due to the decline in interest rates in 2010, as shown below:

Duration 2010 2009 12 months 2.50% 3.50% 15 months 2.50% 3.80%

6 | 2012/13 annual report Item Subject Update (8) Issues relating to the electronic filing The e-filing system was implemented in the Kuala Lumpur courts system (“e-filing”) in courts with effect from 1 Mar 2011, in respect of all filings in court for originating processes commenced on or after that date.

The Kuala Lumpur Bar Committee took the lead in assisting Members to understand and benefit from the e-filing system. Many meetings were convened with the service provider and the Judiciary to discuss and resolve Members’ complaints. Members were provided with easy-to-use information and a user-friendly step-by-step guide on the use of the e-filing system.

BC, and Chairmen of the relevant State Bar Committees, took measures to urge the Judiciary to delay the implementation of the e-filing system in courts in Shah Alam, Penang, Johor Bahru and Putrajaya, or to introduce it gradually. The e-filing system was implemented in phases in these courts beginning in late May 2011.

The BC Court Liaison Committee issued over a dozen circulars to Members, to provide information on the implementation and updates on developments. In addition, the Committee assists many Members individually, to resolve the problems they face in using the e-filing system.

The Committee continues to hold regular meetings with the service provider and the Judiciary to highlight, and seek solutions to, issues and problems that arise. (9) Motion regarding quality and (a) At the AGM held on 12 Mar 2011, the motion was amended administration of justice to state that the Malaysian Bar has no confidence in the Key Performance Indicators introduced by Chief Justice (“CJ”) YAA Tun Dato’ Seri Zaki b Tun Azmi, which do not serve the interest of justice and litigants, and calls upon him to immediately withdraw them. The amended motion was carried (285 votes in favour, one against, and two abstentions).

(b) Numerous meetings were held with the CJ and senior Members of the Judiciary to address the issues raised by Members of the Bar, such as the undue emphasis given to speedy disposal of cases, and judges’ lack of flexibility in the administration of justice. As a result, the Chief Judge of Malaya issued Practice Directions No 1 of 2011 and No 2 of 2011, dated 21 Mar and 7 Apr 2011, respectively.

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Item Subject Update The Bar and the Bench also issued a joint press release, on 7 Apr 2011, setting out a common position, the key elements of which were that:

w We must collaborate and coordinate with each other to ensure an effective and just administration of justice that inspires public confidence; w We were, and are, determined to substantially reduce the backlog of cases; and w There are no Key Performance Indicators based on quantitative measures.

Instead, reassurance was given that judges are assessed on qualitative measures such as integrity, impartiality and independence, quality of judgments, and observance of the Judges’ Code of Ethics 2009. (10) Motion regarding Advocates and (a) The motion was withdrawn, as MS Murthi agreed with BC’s Solicitors Disciplinary Board (“DB”) position that DB should not participate in appeals, and onlyBC would do so.

(b) BC has subsequently intervened in 20 appeal proceedings.

(11) Motion on inquiries into deaths (a) The motion was unanimously carried. It calls on the Government to, inter alia, introduce a Coroner’s Act and establish a Coroner’s Court, conduct a comprehensive review of the manner in which inquiries into deaths are undertaken, and take steps to ensure that full inquiries are carried out in respect of all deaths of persons in custody.

(b) BC, together with the Office Bearers of the Judiciary, visited the Coroner’s Court in Singapore on 29 Apr 2011 (during the Malaysia/ Singapore Bench and Bar Games), to learn about the Coroner’s Act and Coroner’s Court in Singapore.

BC has raised the issue of the establishment of a Coroner’s Court in Malaysia on a few occasions:

w At the Committee on the Administration of Justice’s meeting on 3 May 2011, Dato’ Seri Mohamed Nazri Abdul Aziz (Minister in the Prime Minister’s Department), who chaired the meeting, said he would raise this matter in Cabinet; and w At a meeting with Senator Dato’ G Palanivel (President of Malaysian Indian Congress, and Minister in the Prime Minister’s Department) on 4 Jan 2012.

8 | 2012/13 annual report Item Subject Update A position paper on the establishment of a Coroner’s Court in Malaysia, prepared by the proposer of the motion, Andrew Khoo Chin Hock (Chairperson of the BC Human Rights Committee), has been submitted to both Ministers. BC has requested to meet Dato’ Seri Mohamed Nazri Abdul Aziz to discuss the matter. (12) Motion calling upon the Government (a) The amended motion, calling “for the abolishment of section to regulate will-writing enterprises/ 38(2) of the Legal Profession Act 1976, effectively disallowing agencies in Malaysia unauthorised persons, as defined in the Legal Profession Act 1976, to draft wills for remuneration”, was unanimously carried.

(b) A small team led by the proposer of the motion, Richard Wee Thiam Seng, has conducted research to gather information to support the view that only advocates and solicitors should be permitted to draft wills for remuneration, but little material is available. Without specific data on complaints by consumers against will writers who are not advocates and solicitors, it may be difficult to substantiate a call to amend the Legal Profession Act 1976. The team will continue its efforts to gather sufficient information to propose an amendment to the Government. (13) Motion on Asahi Kosei (M) Sdn Bhd’s (a) The amended motion, calling on the Malaysian Bar to,inter alia, legal suit against Charles Hector “render all reasonable assistance and support to Charles Hector Fernandez, Member of the Bar Fernandez, as deemed fit by the Bar Council”, was unanimously carried.

(b) On 16 Aug 2011, BC representatives (including the President and Vice-President) held a meeting with representatives from the Embassy of Japan to discuss the matter.

The suit ended in a settlement on 25 Aug 2011, whereby Charles Hector Fernandez had to pay RM1 in damages to the company and RM1 in costs, and publish a half-page apology in two daily newspapers (The Star and Nanyang Siang Pau).

Date: 24 Feb 2012

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Item 3 of the agenda of the Annual Report made him appear dictatorial, and To consider the President’s and committees’ reports re: was not representative of the President’s leadership of Activities of the Malaysian Bar for the year 2011/2012 BC and the Bar, which had been most democratic and comprehensive. 3.1 President’s Report 3.1.4 Defamation suit against Charles Hector 3.1.1 Liberalisation of the legal profession Fernandez

The Chairman said that the Government would, in all Charles Hector Fernandez of the Selangor Bar expressed likelihood, table the amendments to the Legal Profession his sincere thanks to Members of the Bar, as well as BC, Act 1976 (“LPA”), to allow foreign lawyers to practise for their support in respect of the suit instituted against foreign law in Malaysia, in the March/April 2012 sitting him by Asahi Kosei (M) Sdn Bhd. of Parliament. There will be a Selection Committee, which will comprise largely of Members of the Bar, as The Chairman said that this had been done for a good well as the Attorney General (“AG”) and a Government cause. representative. The Selection Committee will look at applications from foreign lawyers wishing to practise 3.1.5 Common Bar Course (“CBC”) through a qualified foreign law firm (“standalone firm”), an international law partnership with a local law firm, The Chairman said that the Legal Profession Qualifying or by way of employment/recruitment in a local law Board has set up a CBC Committee headed by him, and firm. Emphasis will be given to foreign lawyers who expressed his confidence that the CBC will become a specialise in international Islamic finance, in light of reality in the near future. Bank Negara Malaysia’s objective to promote Malaysia as an international Islamic finance centre. BC is stepping 3.1.6 Tun Dato’ Seri Zaki Tun Azmi, former CJ up efforts to take legal action against unauthorised persons, one of whom is a foreign lawyer who is alleged N Surendran s/o K Nagarajan of the KL Bar highlighted to be practising local/foreign law in Malaysia. the President’s note of thanks to Tun Dato’ Seri Zaki Tun Azmi, the immediate past CJ, at page 56: “We thank 3.1.2 Group practice Tun Dato’ Seri Zaki Tun Azmi for his leadership and for leaving an improved Judiciary, and wish him a happy The Chairman said that the Small Firms Committee retirement.” chaired by George Varughese will, in the new term, put in place a group practice regime whereby sole N Surendran s/o K Nagarajan raised the issue pertaining proprietorships and small partnerships can come to the RM2.2 billion highway concession that the together to share facilities such as premises, backroom Government had awarded to a company linked to support, library and meeting rooms. The regime is akin Tun Dato’ Seri Zaki Tun Azmi’s wife, who is one of its to the English chamber system, except that local lawyers directors. He said that whilst the matter had been will not be permitted to market, project or promote the taken up by politicians and activists, the Bar had been concept. slow in its reaction. He asked BC to take a serious look at the matter, which concerned the fundamental 3.1.3 Photograph of the President independence of the Judiciary, and to push for a proper inquiry to determine under what circumstances the Sulaiman Abdullah of the Selangor Bar remarked that contract had been awarded. He further asked BC to the pose of the President in the photograph at page 52 treat the matter as one of great urgency and priority.

10 | 2012/13 annual report The Chairman said that the incoming Council would position by having to issue a press statement criticising look into the issue. the severity of the sentence and asking the court to show mercy to the former imam. The Chairman said 3.1.7 Custodial sentence imposed on Hoslan Hussin, he had sought further clarification from counsel as former imam to what had taken place in the court of first instance, where the former imam had purportedly been denied N Surendran s/o K Nagarajan referred to the one-year the opportunity to apply for an extension of time to jail sentence handed down by the Federal Court on 8 file his affidavit in reply. In any event, courts would Mar 2012 to a former imam, Hoslan Hussin, who had traditionally grant leeway to unrepresented lay litigants been found guilty of contempt of court for throwing in court proceedings. The Chairman said that BC would a shoe at a panel of Judges the previous month. He look into the matter. said that although no person would ever condone such an act, the court ought to have taken into account the Tommy Thomas of the KL Bar asked the Chairman circumstances that led the former imam, a struggling to address the issues concerning the RM2.2 billion father of seven children, to commit the act. It appeared contract award, and the severity of the sentence, at that the former imam had not been represented and the press conference scheduled to take place after the had been very emotional that day. According to a first BC meeting after the AGM. He said that it would news report, counsel who held a watching brief for the have been unimaginable for a retired CJ of England, Malaysian Bar, had allegedly told the court that the case Australia or India to have received a contract award did not merit leniency and had asked that a deterrent after retirement. Hence, what happened in Malaysia sentence be imposed. was extraordinary. He cited the case of the former prominent Lord President, Tun Mohamed Suffian N Surendran s/o K Nagarajan disagreed with counsel’s Hashim, who had been offered the post of non- stand as he felt that counsel ought to have condemned executive Chairman of Standard Chartered Bank Berhad the act, but at the same time pleaded for mercy. The upon his retirement in 1982, but who had quietly retired sentence led to the issuance of a public statement by BC following heavy criticism. Tommy Thomas recalled the criticising its severity, but this had given the impression close relationship between a former CJ and a senior that the Malaysian Bar’s stand was contradictory. N court practitioner, both of whom had gone on a holiday Surendran s/o K Nagarajan remarked that it would in New Zealand, and said that court-going lawyers have been better for BC not to have sent any counsel to must always be careful not to socialise with Judges, hold the watching brief, and asked that BC review the because of public perception. However, the position incident to find out how the episode had occurred. of corporate lawyers who do not attend court is quite different. Tommy Thomas asked the Chairman to make The Chairman said that following the incident, he a strong statement on the issue. had sought clarification from counsel, who had been appointed by BC following an invitation from the Tommy Thomas said that when the occasion presented Federal Court. The counsel said that prior to the finding itself, the Judges of the Federal Court ought to have of contempt, when the Federal Court had asked the treated the case as one of contempt in the face of the former imam to explain his conduct, the latter, instead court and punished the former imam accordingly, but of being contrite, told the court that he was entitled to they had been afraid to do so, due to racial and religious do what he had done. As a result, counsel asked for a reasons. That was the reality. Instead of being blind deterrent sentence. However, the pronouncement of to race and religion, the court over-reacted. It also the one-year custodial sentence by the Federal Court failed to appoint a separate panel to hear the contempt had stunned everyone who was present. The Chairman matter, and instead reappointed the same panel of admitted that BC had been caught in an awkward three Judges who had heard the former imam’s appeal.

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Tommy Thomas asked the Chairman to highlight this supposed to consider the complaint. BC had held a point at the press conference. He proposed that the watching brief in the proceedings and supported Karpal Judiciary call for a review of rule 137, relating to the Singh’s position. The Chairman said that the Malaysian inherent jurisdiction of the Federal Court. In his view, Bar had, during Tun Dato’ Seri Zaki Tun Azmi’s tenure, the Federal Court should have set up a new panel expressed its disappointment with the stand taken by of Judges, and excluded the three Judges. There is the courts on human rights and constitutional cases, a precedent in General Pinochet v House of Lords, by way of press statements issued by the immediate whereby General Pinochet’s legal team attempted to past President and himself. He explained that his reverse the decision of the original panel of Law Lords note of thanks to the former CJ had been in relation headed by Lord Hoffman. The new panel that had been to the improvements that had taken place in the subsequently set up had not consisted of any Law Lords administration and efficiency of the courts. Hesaid who had sat with Lord Hoffman. that BC will look into Charles Hector Fernandez’s other proposals. The Chairman said that more than 10 years ago, BC had prepared a paper on the proposed reform of the law To Charles Hector Fernandez’s request that the note on contempt of court, with the recommendation that of thanks be deleted from the President’s Report, the a different panel of Judges should be appointed to hear Chairman said that he could not do so, because of the and determine an act of contempt. fact that the improvements did take place, although Tun Dato’ Seri Zaki Tun Azmi may have had his flaws. Charles Hector Fernandez said that BC ought not to have recorded its thanks to Tun Dato’ Seri Zaki Tun Chew Swee Yoke of the Selangor Bar suggested that BC Azmi for his leadership of the Judiciary. BC should should, in future, brief counsel on what to say in court. have confined its acknowledgment to the former CJ’s She said that the deterrent sentence sought by counsel position as leader of the Judiciary and just wished him that turned out to be an imprisonment of one year had a happy retirement. Charles Hector Fernandez said made BC look really bad. Chew Swee Yoke proposed that the note of thanks did not reflect well on the Bar that N Surendran s/o K Nagarajan consider starting a because, during the former CJ’s tenure, the Bar had fund for the former imam’s family, as lawyers might faced a lot of problems with the courts. With regard to want to contribute, and show the Judges what they the admission by the former CJ, after his appointment as think of the sentence. head of the Judiciary, that he had bribed court officials as a practitioner, Charles Hector Fernandez asked Sulaiman Abdullah said that while he had the greatest BC to urge the relevant authorities to investigate the respect for Tommy Thomas as the voice and conscience former CJ’s statement and take action against him if the of the Malaysian Bar, he disagreed with Tommy allegation were proven to be true. He also suggested Thomas’s dispensation to corporate lawyers to have that BC or DB take up the matter because the former social relationships with Judges. He said that the whole CJ is no longer immune from being investigated for a Bar should oppose the concept of Judges socialising criminal offence of corruption. He proposed that the with any practising lawyer. Bar’s previous resolution on the cooling-off period for former Judges be extended to include the prohibition 3.1.8 Amendments concerning criminal procedure of post-retirement awards or privileges to Judges or any member of their families. The Chairman said that BC is following up with the AG on the effective date of implementation of the The Chairman said that the allegation of bribery was amendments to the criminal laws. He informed pending appeal, in respect of Karpal Singh’s application Members that the Criminal Law Committee would for a review by the Judges’ Ethics Committee that was organise a forum on issues of criminal justice soon, and

12 | 2012/13 annual report urged them to participate. He added that a number six local universities, the AG had made it clear, in his of complaints had been received recently, concerning speech during a Certificate in Legal Practice convocation the manner in which courts of the first instance and ceremony held the previous year, that the CBC would the appellate courts had handled criminal trials and apply to all graduates, regardless of their university. appeals. A circular will be sent to Members of the Bar on this issue. 3.1.12 MyConstitution (“MyConsti”) Campaign

3.1.9 Implementation of the electronic filing Sulaiman Abdullah said he felt extremely proud of (“e-filing”) system the work done by members of the Constitutional Law Committee. He noted that though the Chairman had Charles Hector Fernandez noted that although sent a letter of congratulations to the Committee, the numerous complaints had been posted and discussions Chairman had not taken the opportunity that morning held on this issue through various e-groups, no Member to enlighten the Bar about the compliments given had raised the issue during the AGM. He asked fellow by representatives of foreign Bars at the LAWASIA Members who had faced problems arising from the Conference in Seoul the previous year, over the e-filing system to come forward and speak up. Committee’s magnificent MyConsti Campaign.

The Chairman said that BC had organised a few forums The Chairman apologised for the inadvertent oversight and also prepared a memorandum that had been and informed the House that at the LAWASIA handed to the Judiciary. A meeting had been held Conference, he had not only talked about the Malaysian recently with the Judiciary to resolve issues relating to Bar’s work, but had distributed the MyConsti Campaign’s the e-filing system that was being implemented across nine Rakyat Guide booklets to conference delegates, the nation. The Chairman asked Members to bear with and also screened the Rakyat Service Advertisement BC, which is trying its best to address the issues raised video clips. The delegates had been astounded at in the memorandum, a copy of which could be accessed the Campaign, which aimed to raise awareness on on the Bar website. Another forum may need to be constitutional issues among citizens of Malaysia. The held. Chairman expressed his thanks to the hardworking members of the Constitutional Law Committee for the 3.1.10 Construction Industry Payment and good work they were doing. Adjudication (“CIPA”) Bill 3.1.13 Bar Resolutions The Chairman said that the CIPA Bill imposes the requirement of statutory adjudication for certain Charles Hector Fernandez proposed that BC compile contracts in the construction industry. BC and the KL the follow-up actions that had been taken in respect Regional Centre for Arbitration (“KLRCA”) are organising of all resolutions passed by the Malaysian Bar over the a number of courses on this new and interesting area years, and publish the compilation in the AGM Update of practice, which is expected to generate a lot of work Sheet next year. for Members. The Chairman said that the incoming Council would 3.1.11 Common Bar Course take note of this suggestion.

The Chairman said that the CBC will help to address 3.1.14 Amendments to the LPA the issues of quality and standards of the Bar, since it will serve as the single point of entry into the legal Charles Hector Fernandez enquired about the status of profession. Despite the strong resistance put up by the the proposed amendments to the LPA and, in particular,

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the House’s request for a repeal of the provision that 3.4 Report on 2nd Asian Mediation Association sought to remove the right to judicial review. Conference

The Chairman apologised for the oversight in not having The Chairman said that the Conference had been an updated Members, via circular, on the progress of the astounding success, and one of the best the Bar had amendments to the LPA. He said that the report by the ever organised. committee chaired by VC George had been adopted and incorporated into the LPA Amendment Act, except 3.5 Report on 5th China–ASEAN Forum on Legal for a few minor amendments. The Amendment Act was Cooperation and Development expected to be tabled in the March/April 2012 sitting of Parliament, together with the amendments relating to The Chairman related how a Member of the Bar, a sole the liberalisation of the legal profession. proprietor, had, as a result of attending the Forum in China about two years earlier with sponsorship by the 3.2 Secretariat’s Report Malaysia External Trade Development Corporation (“MATRADE”), successfully established a network with 3.2.1 Shorter processing time for Sijil Annual and lawyers there. The Chairman encouraged Members to Practising Certificate applications look towards China, an interesting market with a great deal of two-way trade, and the ASEAN region, if they The Chairman reported that the issuance of Sijil Annual wished to expand their legal services. by the Secretariat has become speedier, with a shorter processing time averaging 12 days. Members can 3.6 Committees’ reports now check online for the status of their Sijil Annual applications. A project that is in the pipeline is a major 3.6.1 Ad Hoc Committee on Conditional Fee Rules revamp of the Secretariat’s IT infrastructure to allow the Secretariat to email relevant particulars to Members for Su Tiang Joo of the KL Bar noted with disappointment the purpose of verification. that the Conditional Fee Rules, which had been adopted by BC, would be confined to third-party accident cases, Charles Hector Fernandez placed on record his thanks despite the assurance that had been given at the 65th to the Secretariat for its improved performance this AGM by the former President, Ragunath Kesavan, that year. the Conditional Fee Rules would be open to all other areas. He quoted the following extracts of the minutes: 3.3 Advocates and Solicitors Disciplinary Board’s Report Pages 11 to 12: Su Tiang Joo of the KL Bar said that according The Chairman said that BC and DB have jointly produced to the circular received the previous day, the a “Frequently-Asked-Questions” pamphlet that will Contingency Fee Rules were approved only for assist Members to better understand the disciplinary running down cases. He recalled having written process, as some Members did not know why they to BC asking for the Rules to be open to all areas had been called upon to provide explanations in of practice. . . . The Chairman assured Su Tiang Joo complaints brought against them before DB. This may that BC will take note of his comments to open have been due to the fact that they had not read the the Contingency Fee Rules to all other areas in LPA. He advised Members who had any concerns about future. DB to email a note to him or the Vice-President. He mentioned that copies of the pamphlet were available at the registration counter outside the meeting hall.

14 | 2012/13 annual report Pages 14 to 15: assurance sought, because the incoming Council would The Chairman said that the Malacca Bar need to look at the matter afresh. Committee, though a small Bar, has formed a subcommittee to take on the huge task and 3.6.2 Dissemination of BC decisions to Members of responsibility of looking into the amendments the Bar to the LPA. The Contingency Fee Rules will be incorporated as part of the amendments. Charles Hector Fernandez proposed that BC issue a General Statement to Members of the Bar regarding Su Tiang Joo said that because Members practise in very main issues that are being discussed with external wide areas of law, there should be no discrimination. bodies such as AGC and Bank Negara Malaysia, to keep He asked that the Conditional Fee Rules be opened them abreast of issues that BC is pushing for and the to all areas of practice, except for criminal law and objectives behind them. In this manner, Members family law, which involve public policy, and the fact can intervene as soon as they become aware that BC that maintenance fees should not go into the pockets is about to take a position that is contrary to what the of solicitors. He questioned why the Conditional Fee general membership wishes. Presently, Members are Rules had been given limited application and asked BC informed about issues and positions only after they had to explain what it had been doing for the last year. been agreed upon between BC and an external body, by way of the Annual Report and at general meetings. The Chairman said that the Conditional Fee Rules By that time, it was too late to change anything, and all were still being discussed with the Attorney General’s Members could do was voice their dissatisfaction. Chambers (“AGC”). The Rules were also being discussed with Bank Negara Malaysia, through its Joint Working The Chairman said that BC always issues a General Committee. Technically, under the LPA, the making of Statement after every Council meeting, which sets rules for the legal profession falls within the jurisdiction out the important decisions taken. In addition, ad hoc of the Bar and the AGC. BC has taken the stand that at reports on meetings with outside bodies such as the the initial stage, the Rules be made applicable only to Judiciary and AGC were published on the Bar website. personal injury cases. If they are workable, the Rules However, for ongoing discussions, it would not be would be expanded to other areas, except criminal law practical to disseminate every decision made regarding and family law. an issue, unless a certain milestone had been attained or BC needed to seek directions from Members, by Su Tiang Joo said that the previous Ad Hoc Committee way of a forum or dialogue session. The Chairman said on Amendments to the LPA, headed by Peter Mooney, that although four dialogue sessions had been held on had studied the Conditional Fee Rules thoroughly issues concerning liberalisation and Islamic finance, over four years before recommending that the Rules each session had been attended by fewer than 30 be made applicable to all areas of practice other than participants. The problem was that despite BC’s efforts criminal law and family law. The Ad Hoc Committee had to engage with Members, very few had responded. The submitted its report to BC about two years earlier. Su Chairman pleaded with Members to read all of BC’s Tiang Joo sought a fresh assurance from BC that there materials that are circulated and to give their feedback would be no discrimination, and that the Rules would on any issue that might affect them. be open to all areas of practice other than criminal law and family law. Charles Hector Fernandez suggested that BC make use of the various e-groups to engage Members to get their The Chairman said that the outgoing Council had held feedback. two meetings to discuss the Ad Hoc Committee’s report. He regretted that he could not give Su Tiang Joo the

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The Chairman said that the Bar is now 13,800 in special fund that had been set up by BC to finance the number, and about 8,000 email blasts need to be sent litigation of cases, research on entitlement of land titles, to Members for every circular that is disseminated. and engagement of experts to give evidence. Thus, Charles Hector Fernandez’s suggestion would not be practical. 3.6.6 Constitutional Law Committee

3.6.2 Ad Hoc Committee on National Legal Aid The Chairman said that, with respect to BC’s campaign Foundation on Article 121(1) of the Federal Constitution, to restore judicial powers in the courts, a letter had been sent to The Chairman said that the date that the Foundation the AG to pursue the amendments being sought. The would commence operation would fall either in March Chairman had also met with the AG, who was receptive or April of 2012. BC had already trained about 700 to the idea, but unfortunately, the AG’s hands were tied Members, and was aiming for 1,000 Members. Training due to certain policy decisions made by the Executive. sessions were still ongoing, with a session held in KL about two weeks earlier and another scheduled to be 3.6.7 Conveyancing Practice Committee held in Ipoh the following week. The Chairman acknowledged the good work of the 3.6.3 Arbitration and Alternative Dispute Resolution Conveyancing Practice Committee. He said that the Committee Government had adopted BC’s proposal to amend the laws relating to conveyancing matters almost in toto. The Chairman acknowledged the good work done by One serious issue that had recently been brought to Sundra Rajoo, Director of KLRCA, who had put in a BC’s attention was the allegedly forged, fraudulent or tremendous amount of effort to revive and improve fake acknowledgment of payment of stamp duty. The the efficiency of KLRCA, which was now in the process Chairman warned Members who hired runners to carry of tracking down all arbitration disputes that had gone out stamping of documents to be careful, because a elsewhere over the years. It was hoped that KLRCA few Members had been victims of the fraud. Based on would be able to bring back all these cases so that the modus operandi of the runners, money intended Members of the Bar would have the opportunity to for the stamping of Sale and Purchase Agreements had advise more clients. BC had been working very closely not in fact been paid to the Stamp Duty Office, but had with KLRCA, to promote the latter through roadshows, been passed from hand to hand. One of the runners such as those that had been held in China, Korea and might be prosecuted in the next one to two weeks. India over the last term. A few roadshows would be The Chairman said that the Conveyancing Practice held in Malaysia and Indonesia in the new term. Committee is looking into this issue.

3.6.4 Subcommittee on Construction Law 3.6.8 Corporate and Commercial Law Committee

The Chairman said that BC would pursue the issue of The Chairman said that the Limited Liability Partnership the establishment of a Construction Court, with the (“LLP”) Act would come into force soon but the LPA Minister of Works and the CJ. needed to be amended to cater for LLPs in the legal profession. One other amendment that BC must look 3.6.5 Committee on Orang Asli Rights at was the need for a provision to allow vesting of court files belonging to law firms that intended to become The Chairman that the issue of illegal encroachment LLPs, in order to do away with the requirement of into Orang Asli lands had come to the forefront in the filing a notice of change of solicitors for every file. The last year. He invited Members to contribute to the Committee would organise roadshows once the LLP Act came into force.

16 | 2012/13 annual report 3.6.9 Court Liaison Committee Some Judges were fortunate to have secretaries whose proficiency of English was good. However, for Judges The Chairman said that the Court Liaison Committee whose secretaries were not proficient in English, they had drawn up guidelines for scheduling of Court of would pass on the task of transcribing, to the lawyers. Appeal matters. Brendan Navin Siva (Chairman of A temporary solution is for BC to distribute a list of the KL Bar Committee, and Chairperson of the Court private transcribers to Members. Liaison Committee) and the Office Bearers had met the President of the Court of Appeal to try and resolve DP Vijandran said that the problem relating to the the issue. The guidelines will be published on the Bar transcription of notes of evidence is an old one, and website. demonstrates malaise in the court system. Lawyers for plaintiffs or defendants were now required to give DP Vijandran of the KL Bar enquired why the an undertaking to provide courts with transcripts. Committee’s report was very short and asked the This meant that lawyers had to do the transcription Chairman to enlighten him on the following issues that themselves. There was no particular way of gaining were not amplified therein: mutual agreement on the veracity of the transcripts. When disputes arose, Judges would ask the parties Some of the issues being considered by these concerned to carry on with the transcripts on the basis working groups include guidelines on the award that they would deal with the issue at the end of the of costs, the proper quantum increase of filing trial. DP Vijandran said that it would be too late by that fees, and those in relation to electronic filing stage to raise issues concerning the discrepancies. There (“e-filing”) and court recording and transcription should be an official record of the notes of evidence, services (“CRT”).... Many other issues were raised which must be done by Judges and not anybody else. throughout the course of the term, including... DP Vijandran said he did not wish to quibble about the problems relating to the use of the court recording e-filing system, but the notes should be done with the transcription (“CRT”)… stamp of the courts.

The Chairman said that some committee reports had The Chairman said that BC would take note of DP been deliberately kept brief because certain materials Vijandran’s suggestion, and asked Members to bear like memoranda had already been published on the Bar with BC as it was working with the Judiciary to put in website. With respect to CRT, BC had written to Bahagian place guidelines and a uniform procedure for preparing Hal Ehwal Undang-Undang and the Minister of Law notes of evidence. with the proposal that CRT services be provided by the courts, based on the models of other jurisdictions such DP Vijandran, in appreciating BC’s efforts, asked BC as Singapore, Hong Kong, the UK and Australia, whereby to take note of the vitality and urgency of the matter lawyers hire a private service provider of transcription because CRT was causing a lot of problems for lawyers, services such as Merrill Legal Solutions, at a fee. This is and the ongoing discussions and dialogues with akin to our previous practice of lawyers paying a service Judges did not seem to produce any results. Although fee to Judges’ secretaries to type out notes of evidence the problem had been going on for more than two on a folio basis. The Chairman said that discussions years, there was still no solution in sight, despite the had been held with the courts over the past two years Chairman’s well-intentioned assurance that the issue and were still ongoing. The courts had undertaken a would be looked into. Both the legal profession as well recruitment drive to hire transcribers but this had as the administration of justice were suffering, because not been successful, due to the transcribers’ poor notes of evidence formed a fundamental part of the command of English. That was why there was presently judicial system. Amidst this confusion, some Judges no uniformity in the transcription process in the courts. hardly looked at notes of evidence, and consequently

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produced unsatisfactory judgments. DP Vijandran The Chairman thanked GK Ganesan for highlighting asked BC to take a stand on the issue and not merely the issue and urged Members who had encountered give assurances. problems with Appellate Court Judges to respond to BC’s periodic circulars seeking feedback. Members The Chairman explained that based on the Bar’s stand, could also call him or Brendan Navin Siva, Chairperson it is the courts that ought to provide the notes of of the Court Liaison Committee, directly. If Members evidence. BC was working with the courts on how best wished to make anonymous complaints, BC would still to achieve this. The situation was different in Sabah raise the same with the CJ despite the fact that the and Sarawak where the caseload was much less, and latter had expressed his wish to know the names of their transcribers generally had a good command of Judges who had been rude or refused to accord counsel English. He assured Members that BC would look into sufficient time for submissions. The Chairman cited the the issue urgently. case of a Court of Appeal Judge who appeared to have improved after a complaint had been lodged by BC, but GK Ganesan of the KL Bar put forward two complaints, had sadly reverted to his old habits. BC needed specific the first of which concerned the e-filing system. He instances of complaints, to compile the information in informed the House that courts do e-filing more quickly BC’s database so that a systematic and documented only if a lawyer pays the charge of RM10. He could approach could be adopted, which would enable BC provide evidence of this, and asked BC to look into the to identify individual Judges who were recalcitrant. matter. The second complaint concerned the continuing A report card for each Judge would be prepared and rudeness of some Judges of the Court of Appeal and the handed to the leaders of the Judiciary when BC met Federal Court, who abruptly stop counsel, including them. Presently, BC received complaints on an ad hoc himself, while they were in the midst of submitting. GK basis from Members. Ganesan said that this was a very serious issue, because counsel would have, prior to appearing in court, put in Charles Hector Fernandez brought up the problem of a lot of work for their brief, with the aim of putting their lack of chairs in certain courts, including the Shah Alam best foot forward for their clients in court. Naturally, High Court, thereby forcing lawyers to stand and wait they expected a reasonable time of 25 to 30 minutes for their turn. He asked if the Court Liaison Committee to put their arguments across. A pattern had emerged could look into this. over the past two years, whereby Judges of the High Court and Sessions Court, as well as Magistrates, were To the Chairman’s reply that this issue had been raised allowed to decide on a set of facts, and their findings with the courts a few months earlier by G Kanarasan, were preserved by Appellate Judges who did not want Chairman of the Selangor Bar, Charles Hector Fernandez to write their own judgments. Appellate Judges also remarked that this was an old problem that had yet to treated lawyers who appeared before them like idiots. be resolved. GK Ganesan said that it was pointless for counsel to study their cases late into the night because when they The Chairman said that these problems were not the went to court the next morning, the Judges refused to fault of the Judiciary. Since 2003, courts no longer had listen to their submissions. He said that Judges ought a say in decisions affecting them because their control not to act in this manner, because counsel were paid to over the management of allocations for construction go to court to argue on behalf of their clients and should, of courts had been transferred to the Prime Minister’s therefore, rightly be heard. Judges were also cutting Department. The design and layout of courts were down on applications for leave, where there were valid now the responsibility of people who were clueless as questions of law. GK Ganesan said that something must to how court rooms should look like. Hopefully, this be done about this serious problem; otherwise, there problem could be addressed at the regular meetings would be no development of law in the country. being conducted by the Deputy Minister of Law with the various stakeholders.

18 | 2012/13 annual report Charles Hector Fernandez related his experience of immediately, but the Registrar would not entertain going to the Shah Alam High Court one morning, only him. One day, he simply walked into the chambers of to have been told that the Judge in charge of his case a Judge whose door happened to be ajar. SI Rajah said had gone for umrah. He said it was very frustrating he was not afraid if Judges reported him to DB, as it because he had stayed up the night before to study his would give him the opportunity to subpoena them to case and had come fully prepared for the full hearing. the disciplinary inquiry. He asked BC to find a practical The frequent failure of Judges to notify counsel was and urgent solution to all these problems, as such due to their lack of respect for lawyers. Charles Hector things should not be allowed to go on. He agreed with Fernandez asked BC to raise this issue with the Judiciary. the previous speakers that some Judges did not comply with the fundamental rules of court and had refused The Chairman said that G Kanarasan would take note of to allow counsel to speak or make written submissions. Charles Hector Fernandez’s complaint. He questioned the purpose of having court rules if counsel were not allowed to appear with decorum to Charles Hector Fernandez then touched on the issue of present their cases. SI Rajah expressed his frustration oral submissions, which, in his view, was a right that can at Judges who are ever ready to strike off cases at every only be removed by mutual consent of the parties. He opportunity because of the Key Performance Indicators said that there had been instances of Judges directing system. He sympathised with young lawyers and pupils counsel to put in written submissions despite counsel’s who are being harassed by the courts. insistence on making oral submissions. Judges came to court with their minds already made up, and proceeded SI Rajah informed the House about how he had, on one to read out the decisions without giving counsel any occasion, contacted the Chairman’s assistant at the opportunity to clarify or rebut. Even worse, Judges asked Secretariat to borrow a wig, but regrettably she did not counsel for both parties to present contemporaneous return his call. He expressed his disappointment at this submissions, thereby denying them their right of reply. lack of action because BC always fights for the human rights of other people but neglects Members of the The Chairman advised Charles Hector Fernandez to Bar. He suggested that a wig be kept in the library for provide details pertaining to complaints against Judges, Members to borrow in case of emergency. Magistrates or Registrars who do not comply with the courts’ Practice Directions, to the Chairman of the State The Chairman said that it has been the tradition of the Bar Committee concerned, so that the information Bar that junior Members of the Bar usually give up their could be collated in the central database maintained by seats in court to senior Members as a mark of respect. BC. He asked SI Rajah to provide G Kanarasan and Brendan Navin Siva with details so that the issue could be raised SI Rajah of the KL Bar complained about the poor with the Judiciary. treatment he had received at the hands of the courts. A simple request from him to be allowed to sit in the front Brendan Navin Siva said that most Members of the Bar row of seats had been refused. This was in contrast to would have at least one or two issues with the court the position in England, whereby senior Members of system. He informed the House that BC and the CJ the Bar are accorded this privilege. In the past, courts in had reached common ground on certain issues, one of Malaysia were courteous to lawyers, but over the years, which is the Judiciary’s Standard Operating Procedure the respect for lawyers had gradually eroded. Courts, (“SOP”) that requires Judges to give at least three including their staff, now treat lawyers like dogs. SI months’ notice to parties before they go on leave. Rajah said that whenever he came across any instance If a complaint is brought to BC’s attention, BC can of a serious mistake committed by a Judge, he would immediately communicate with the CJ via email and ask seek the permission of the Registrar to see the Judge him to look into it. Regarding the rudeness of Judges,

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this happens everywhere, but with the CRT system in contradicting himself. Suddenly, the presiding Judge place, Judges can no longer attempt a denial, because became very angry because he could not understand everything is recorded. Brendan Navin Siva said that the plans, and proceeded to throw them on the floor. although anonymous complaints are accepted, it is DP Vijandran said he subsequently asked the senior time for Members to stop hiding behind the cloak of Member to pursue the matter at the highest level of anonymity and come forward with specific details the Judiciary, but the latter declined, for fear of being of their complaints. This would enable BC to seek a regarded unfavourably by the Judge before whom he, meeting with the President of the Court of Appeal, who as a practitioner, would have to appear almost every will then verify the facts of the complaints through the other day. DP Vijandran said that the senior Member’s recording. If several Members make similar complaints explanation struck a chord with him. DP Vijandran against a particular Judge, it will show that the said that Judges nowadays are not as upright as their allegation is not an isolated one. Brendan Navin Siva predecessors, who were able take criticism in the said that although he had taken up many issues raised proper spirit. Hence, it is very difficult for Members by Members with the Judiciary, the CJ and the Registrar to come forward with specific details of complaints insisted on being furnished with specific details so that unless they are at the tail-end of their practice. This they could look into the complaints. group — including himself — which makes up about 1% of the Bar, dares to stand up to Judges, but the As for e-filing, Brendan Navin Siva said that a circular majority of the Bar, comprising young lawyers who had been issued by BC in December 2011 providing have a long future ahead of them, will not dare take Members with a list of email addresses of Registrars the risk of arguing with Judges, as this could jeopardise in charge of e-filing in the various states. He asked their future. The problem is akin to a “chicken-or-egg” Members who encounter problems with e-filing to situation. DP Vijandran said that BC needs to think of email their complaints directly to the Registrar. The a way of finding out what is going on in the courts and court will look into the problems and try to resolve how Judges behave, and suggested that BC appoint an them within two to three working days. Brendan Navin independent investigator to sit in the court to record Siva noted that since the issuance of that circular, very what is happening since the investigator would have no few complaints had been received from Members. All fear of being singled out by Judges. DP Vijandran asked Registrars have been directed by the CJ to attend to BC not to insist that Members lodge specific complaints. lawyers’ complaints promptly. Members need to come If many Members lodge complaints — whether general forward with their complaints either by way of email or specific — it means that something is wrong with the or telephone. If no details are provided regarding the courts. name of the Judge and the court where the incident took place, BC will not be able to pursue the complaint. Mark Ho Hing Kheong of the KL Bar complained about Members cannot then complain that BC did nothing the ridiculous obstacles created by security guards or is useless. Although BC cannot cover all complaints stationed at the entrance to Jalan Duta Court Complex. against the courts, it can act as a channel between the As the driveway leading to the entrance — where CJ and Judges, to address the issues. Only if no action lawyers were previously allowed to drive through — is taken by BC in respect of specific complaints from is now blocked, lawyers are forced to drive around Members, are Members then at liberty to complain the front area before they can find an empty car park, loudly against BC at its General Meetings. thereby aggravating the bad traffic there. Whenever it rains, lawyers have to wait for one of the guards to DP Vijandran related an incident that had taken place remove the road barriers to let their cars pass through. in court the previous week, when he and a very senior In terms of security and traffic control, the guards were Member were both submitting in respect of some not doing a good job, as evidenced by the bomb that plans, with the aim of cornering a witness who was had gone off at the court complex a few months earlier.

20 | 2012/13 annual report Furthermore, many lawyers’ cars were subjected to it had been implemented. Telling Members to move knocks and scratches caused by cars parked behind with the times, while courts themselves are impeding them. Mark Ho Hing Kheong asked BC to take up this lawyers in their daily work, is not sufficient. issue with the Judiciary, so that lawyers can have easy access to the courts. Muralee s/o YS Menon proceeded to raise an issue concerning the CRT system. Courts provide lawyers with Muralee s/o YS Menon of the KL Bar related his a CD-ROM at the conclusion of a trial, with directions experience in furnishing details of complaints against that lawyers file a written submission within two weeks. Judges. He said that when he had first lodged a Lawyers face numerous problems with transcription, complaint against a particular Judge regarding the way because this is a time-consuming task. A period of at she had handled his client’s highly contested injunction, least 30 days is needed to transcribe proceedings for he had not disclosed her name. Following a written a one-week trial. Lawyers also face difficulty when request from BC for details, he provided the relevant trying to engage competent transcribers, and cannot information and also identified the Judge as YA Datuk expect their own staff to undertake the task. In fact, Rohana Yusuf. The immediate past CJ, Tun Zaki Tun Judges’ secretaries, who used to type notes of evidence Azmi, forwarded the full complaint to the Judge to for a fee of RM5 per page, were disappointed that this seek her explanation. Muralee s/o YS Menon said that source of income had been taken away. a week later, when he appeared before the Judge, her opening remark was a query as to why he had lodged Muralee s/o YS Menon also spoke about the disrespect a complaint against her. As a result of this, his client’s shown to him by Justice Low Hop Bing, who had right was prejudiced. Muralee s/o YS Menon vowed ordered him, during submission on four occasions, to that he would never again provide any details in future. shut up and sit down. On the fourth occasion, when he refused to sit down, the Judge first stared at him, In respect of the fixing of very short dates by Judges, and then punished him by making him wait in the court Muralee s/o YS Menon said that this was due to from 10:00 am until 5:30 pm. Muralee s/o YS Menon, the requirement imposed on Judges to dispose of a senior Member who had previously handled some matters within nine months, to comply with the matters with the Judge when the latter had beena Key Performance Indicators system. There are many practising lawyer, added that he had lost respect for important interlocutory applications like discoveries certain members of the Judiciary because they did not and interrogatories that need to be heard, but are being know how to treat lawyers with respect. If he were thrown out by Judges on grounds that these could be about to conclude his years of practice, he would have taken up at the trial stage. Muralee s/o YS Menon thrown his shoes at the Judge and asked BC’s counsel questioned the purpose of having legal procedures to plead for a deterrent sentence against him. Muralee and remedies if Judges do not make these available to s/o YS Menon concluded by asking BC to address all the litigants. He said that this is an important issue that issues he had raised. needs to be addressed. Concerning the e-filing system, Muralee s/o YS Menon said that lawyers face many The Chairman remarked that no Member of the Bar problems, such as long queues at service bureaus. The should be treated badly by a Judge, regardless of problematic e-filing system is proof that courts had not seniority. given proper thought to it, thus putting lawyers through endless trouble. Lawyers had tried their level best to Brendan Navin Siva said that BC had tried various ways get things done by way of e-filing, and BC had done a lot of standing up to the Judiciary. He had seen problems to mitigate the problems, but these measures were not resolved when BC raised specific complaints with the enough. BC should have taken a more pro-active and Judiciary. Therefore, the only solution he could see positive role in streamlining the e-filing system when was that every lawyer, regardless of seniority or stage

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of practice, must stand up and raise issues, and not Srimurugan s/o Alagan said that in the past, once expect only the senior Members to do so. They should lawyers filed a draft order in court, nothing further was not, after being treated poorly by Judges, keep quiet required. Now they must not only to pay a charge of and then wait until the AGM to complain about Judges’ RM10 for the draft order, but also queue up to make bad behaviour or that BC had not done anything. If payment and get documents scanned. He related how Members keep saying that they will not come forward he had been a victim of the e-filing system on 8 Mar with specifics because their livelihood will be put at risk, 2012. Although he had arrived early — 9:00 am — at then he, as the Bar’s liaison, could do very little to help the KL High Court to do e-filing, he was only able to leave them. This mindset has to change. BC cannot complain around 3:30 pm. He further complained about the high about Judges in general, as the majority of them are fee of RM50 for filing and scanning a fresh summons doing their job properly. He cited, as an example, for the first time, and wondered how the Judiciary the most basic complaint — voiced by Charles Hector had arrived at this figure, which was unacceptable to Fernandez —regarding the Judge who had gone on lawyers, and particularly to sole proprietors like him. umrah without notifying the parties concerned about The Bar had obviously not been consulted. Srimurugan the intended leave. Lawyers who were affected by s/o Alagan expressed his frustration that lawyers still the Judge’s attitude ought to have complained directly had to wait for long periods of time to do e-filing, to the CJ, President of the Court of Appeal, Managing despite the complaint having been ventilated over the Judge, or BC, so that the Judiciary would know that this past one-and-half years. He asked that action be taken was not an isolated incident. Brendan Navin Siva asked quickly to resolve this old complaint. Members to email their complaints directly to the CJ’s email address. Srimurugan s/o Alagan said that based on personal experience, confidentiality of names of complainants MS Murthi of the KL Bar referred to the practical who lodge complaints with authorities cannot be realities of life mentioned by DP Vijandran, whereby assured. There is a very strong likelihood that names will Members who are at the tail-end of practice can afford be leaked, thus exposing complainants to defamation to speak freely about the Judiciary. He said that junior suits. He said that it was not practical to expect junior Members are not able to do that, as they recognise that Members to come forward to complain about Judges, their ricebowl is more important. He supported DP because they are not courageous enough to do so at Vijandran’s proposal that BC appoint an independent the early stage of their career. The problem is that it is person to sit in the court and report on what goes on the junior Members who appear in court most of the there, which might be the solution that will also protect time on behalf of their senior lawyers. Srimurugan s/o Members. Alagan asked BC to look into all these issues.

Srimurugan s/o Alagan of the Selangor Bar recalled that The Chairman said that the complaints about long he had, at the previous AGM, raised the issue of e-filing, queues at the courts’ service counters and the fee and questioned whether the CJ’s notification to Members structure had been addressed in BC’s memorandum about the commencement of the implementation of the and that BC is in the midst of sorting them out. The e-filing system on 1 Mar 2011 had been legal, because incoming Council will look into the issues raised by the Rules of the High Court had not been amended at Srimurugan s/o Alagan. that point in time. Although nothing had happened since the last AGM, the Rules of the High Court had suddenly Balakrishna Balaravi Pillai of the Perak Bar complained been amended late in 2011, to facilitate the e-filing about the way the court staff treated lawyers. He said system. Srimurugan s/o Alagan sought clarification from that on a few occasions when he had wanted to use the the Chairman as to what action BC had taken between court amenities such as the lift or the washroom, he the last AGM and the time the amendments to the Rules had been stopped by court staff on grounds that the of the High Court had been passed. amenities were meant for court staff only. He then had

22 | 2012/13 annual report to explain to them that lawyers were also officers of the Malaysian Anti-Corruption Commission, as he had the court and constituted part of the court system. He evidence to show that the Judicial Commissioner had asked that this issue be explained to all court staff. given preferential treatment to certain lawyers. He said he was giving notice of this at the AGM so that The Chairman said that BC will look into all issues if something were to happen in June, BC would then and suggestions raised. He reiterated his request to know who was responsible. Members to raise issues as and when they occur. BC will respect Members who wish to maintain confidentiality The Chairman said that the issue of quality of court- when making complaints. assigned counsel had been raised not only by Judges, but also lawyers, because some court-assigned cases 3.6.10 Criminal Law Committee changed hands midway and certain court-assigned counsel did not raise specific issues, either in cross- RSN Rayer of the Penang Bar thanked BC and the examination or submission at the appellate level. Criminal Law Committee for having done a good With respect to the trend of higher conviction and job. However, he took objection to the Criminal Law sentencing rates for drug cases, the Chairman said that Committee’s report regarding court-assigned counsel, BC had received merely anecdotal evidence, which was which included this sentence: “At the same time, CLC not helpful in terms of documenting such instances. will continue to work with the Professional Standards Criminal Law Committee will organise a criminal justice and Development Committee to develop and improve forum for criminal law practitioners to discuss issues the quality of court-assigned counsel.” affecting them.

In his view, every lawyer is a good lawyer in his own RSN Rayer said that the Criminal Law Committee right. He said senior lawyers declined to do capital ought to have been aware of the recent trend of punishment cases because of the decline in the higher convictions, because people are being hanged quality of Judges hearing cases. In drug trials, Judges throughout the country. He added that he goes to seemed inclined to accept the evidence presented by the Pokok Sena prison regularly because almost all his agents provocateurs or undercover policemen as the clients are detained there, waiting to attend hearing of gospel truth, without the former having to show any their appeals in the Court of Appeal. There were 98 documentary evidence. As a result, senior lawyers like convictions in 2011, compared to 22 in 2007. Based him, who do criminal trials, became frustrated. RSN on the statistics, Judges are basically “slaughtering” Rayer related his experience when he appeared before people, and something has to be done about it. Many a Judicial Commissioner, Tuan Mohd Amin Firdaus junior lawyers are keen to take up criminal law practice, Abdullah, in a drug case. Instead of taking down notes and cannot be blamed if frustration sets in very quickly. while RSN Rayer was making his submission, the Judicial RSN Rayer took objection to the phrase “professional Commissioner played with his handphone, as he knew standards and development” in the committee report, that the proceedings were being recorded via CRT. Ten and said that junior lawyers should not be penalised, minutes into the submission, the Judicial Commissioner because they are doing their work. told RSN Rayer that he would call for the defence, and asked RSN Rayer’s client to take the stand. That was The Chairman said that the phrase was not meant to when RSN Rayer blew his top. Subsequently, he took up penalise junior lawyers, as the collaboration with the the matter with the Managing Judge, YA Tan Sri James Professional Standards and Development Committee Foong. RSN Rayer said that upon learning that the was aimed at assisting them. same Judicial Commissioner would be hearing criminal trials in Penang from June 2012 onwards, he placed his Baljit Singh suggested that RSN Rayer had taken the objection on record with the Registrar and told her that phrase out of context, and requested that it be retained. if she pushed him, he would lodge a complaint with He said that since many junior lawyers are interested in

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doing criminal law work, the Criminal Law Committee is P Arudkumaran concurred with the views of the earlier setting up a mentoring system, whereby junior lawyers speakers concerning the poor treatment of lawyers, and will accompany senior counsel to court, to observe and asked the Bar to take a stand and support the motion learn from them, in preparation for taking on assigned by a vote of show of hands, with the aim of sending a cases independently. Presently, there is a shortage of message to the Judiciary that Judges ought to respect lawyers taking up assigned cases. lawyers. This should also be mentioned at the press conference. Rajpal Singh s/o Mukhtiar Singh of the Selangor Bar, Chairperson of the Criminal Law Committee, said that The Chairman said he saw no necessity for the vote, the report was meant to encourage more young lawyers as it is the norm for lawyers, who appear in court as to take up court-assigned work, through the mentoring counsel, to be given due respect by members of the system. He invited RSN Rayer to come forward to assist Judiciary. Nevertheless, he would mention this at the in this regard, and to train junior lawyers. He said that press conference. the increase in the conviction rate had been raised with the CJ at the meeting with 25 Members of the Bar in the Charles Hector Fernandez noted that many of the issues previous year. Rajpal Singh s/o Mukhtiar Singh invited raised by the House had already been dealt with in the Members to attend the criminal law forum, with a view Criminal Law Committee’s report, and enquired what to preparing a working paper. the responses were.

In response to RSN Rayer, Gnasegaran s/o Egamparam, The Chairman said that the issues would be considered Chairman of the Penang Bar Committee, said that by by the incoming Council at its next meeting. and large, Judges in Penang do follow the applicable Practice Direction, except the Judicial Commissioner 3.6.11 Family Law Committee that RSN Rayer had referred to. The Penang Bar Committee and the Managing Judge had viewed The Chairman said that a circular will be sent to the video recording of the relevant proceedings, but Members seeking their feedback regarding the public unfortunately, the recording had not captured any campaign to amend section 95 of the Law Reform footage of the Judicial Commissioner playing with (Marriage and Divorce) Act 1976, to push for an his handphone, due to the size and structure of the amendment to extend the legal obligation of parents court. The crux of the complaint was that the Judicial to maintain their children, who are still pursuing their Commissioner had called for the defence immediately studies, beyond the age of 18 years. Senator Heng after RSN Rayer had completed his submission, without Seai Kie, the Deputy Minister of Women, Family and considering the submission in full. The Managing Judge Community Development, is agreeable, but BC needs agreed with the Bar’s view and issued a warning to more facts and figures to continue its push for change. the Judicial Commissioner, who was given two weeks from the date of completion of the submission to come 3.6.12 Human Rights Committee back with a proper decision. Subsequently, the Judicial Commissioner’s attitude in conducting trials improved. Ambiga Sreenevasan of the KL Bar placed on record However, the Judicial Commissioner’s decorum in civil society’s thanks to Members of the Bar for their handling trials was still problematic, which the Penang sterling job in having monitored the BERSIH 2.0 rally Bar Committee was aware of. This issue had been raised on 9 July 2011, at potential risk to their own safety. with the Judiciary, and hopefully the problem would be She said that the proposed legislation to replace the solved soon. Internal Security Act would come up soon, and asked the Chairman to demand a copy of the Bill, at the press

24 | 2012/13 annual report conference. She added that it was wholly unacceptable to applications for leave, either at the press conference for the Government to keep pushing the new legislation or at a more appropriate time. BC will have to compile forward without consulting anyone. This was what a list of such occurrences first. happened to the Peaceful Assembly Act before it was gazetted. Ambiga Sreenevasan said that BC must raise 3.6.13 Environment and Climate Change Committee a huge fuss about how legislation was being passed by Parliament without copies being made available to the Roger Chan Weng Keng of the KL Bar, and Co- stakeholders. Chairperson of the Environment and Climate Change Committee, thanked Members, particularly those With respect to the issue of judicial review, Ambiga from Selangor, Malacca and Pahang Bars, for their Sreenevasan observed that leave applications that used participation together with the rakyat, in the Himpunan to take only about five minutes now take hours to be Hijau 1.0 and Himpunan Hijau 2.0 public assemblies that heard. This was due to the numerous objections raised had taken place in October 2011 and February 2012, by the AG, particularly in applications involving the respectively. He acknowledged the improvements in Government and abuses of power. Ambiga Sreenevasan the judicial system in terms of double-sided printing of said that the AG was not acting in the public interest, cause papers, but observed that single-sided printing but against it, because the Government wanted to was still being done for certain cause papers. He said suppress facts. She asked BC to take a strong stand on that it was time that court staff be advised to do double- this serious issue and seek the removal of the necessity sided printing for all cause papers, which he had been for leave so that hearing of applications for leave could requesting for a long time. proceed straight to the merits. The Chairman said that this problem will be taken care The Chairman said that the assistance rendered by the of by the Task Force on Combined Rules of Court. police at the BERSIH 2.0 rally ought to be acknowledged. BC’s monitoring team, comprising about 100 to 150 Roger Chan Weng Keng said that there is no need to Members of the Bar, worked closely with the police and include a provision to cater for double-sided printing of took many photographs that were subsequently made cause papers in the Combined Rules of Court, as court available at the SUHAKAM inquiry, and are accessible staff had already been advised of the proper wayof via social media. The police were embarrassed when printing a long time ago. To his request that BC follow the Polis DiRaja Malaysia’s statements, issued a few days up on the proposed setting up of a Green Court, based after the BERSIH 2.0 rally, turned out to be diametrically on the CJ’s recent statement, the Chairman said that BC opposite to what was produced at the SUHAKAM will call for a meeting with the CJ. inquiry. This might explain the change of culture within the police force. Honey Tan Lay Ean of the KL Bar said that there is an increasing number of cases for judicial review pertaining Concerning the anti-terrorism legislation that will to the issue of rights. She expressed her shock that the replace the Internal Security Act, the Chairman said AG had asked for costs of RM10,000 in an application for that he had asked the AG for a copy of the Bill, but the leave that had been heard in chambers. The problem AG could not accede to the request because of policy is that Judges refuse to sit in open court to hear these issues with the Executive. It is expected that the Bill will applications. Honey Tan Lay Ean said that the Judiciary be tabled at the March/April 2012 sitting of Parliament. should allow BC’s watching brief counsel to sit in for all applications for leave that are being heard in chambers. On the issue of judicial review, the Chairman said that She asked BC to bring these two issues up with the BC will comment on the pattern of the AG’s objections Judiciary.

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The Chairman acknowledged that BC had received a meeting held between BC, the Inspector General of Honey Tan Lay Ean’s letter on the second issue. Police and heads of districts, and asked if this could be re-established. 3.6.14 Human Rights Committee The Chairman said that a hotline of some form does Latheefa Beebi Koya of the Selangor Bar commented exist. As for the BERSIH 2.0 rally, he had called the that it was premature for the Bar to praise the police Inspector General of Police to complain about police or assume that they had been embarrassed by their brutality, but unfortunately, instructions had not been actions, since the ongoing SUHAKAM inquiry has yet conveyed to the rank and file. to clear any misgivings regarding the conduct of the police in the BERSIH 2.0 rally. Further, many complaints Sulaiman Abdullah suggested that the Chairman lodged by Members against the police have yet to be mention, at the press conference, that since the attended to by BC as well as the police. She did not comforts of the courts rest with the Prime Minister’s believe that a change of culture had taken place among Department, the Department should be asked to take the police, or that the police were behaving as they note of the many complaints regarding the conduct of ought to. Young lawyers, especially those doing urgent the police. Otherwise, when the police find themselves arrest matters, were still being treated badly at police sitting in court and facing criminal and civil proceedings, stations. If the police had performed their job properly Members of the Bar may not be able to assist them. at the Himpunan Hijau 2.0 public assembly, it should not be something out of the ordinary, since it was their 3.6.15 International Malaysia Law Conference 2012 duty to do so in the first place. The Bar should not bend over backwards to praise them, or give them credit too The Chairman urged Members to attend the conference, quickly. as a number of good speakers had confirmed their participation. Latheefa Beebi Koya then spoke about the how police obstruct lawyers from meeting their clients to obtain 3.6.16 LawCare Committee basic information regarding their arrests and what they are being investigated for. She also said that no The Chairman asked Members to notify BC if they are hotline for this exists at the BC Secretariat. BC had been aware of a fellow Member whose health is poor, and asked to do this some time ago after the arrest of the who is facing financial difficulty. five BC Legal Aid Centre (KL) lawyers by the police at the Brickfields Police Station. Latheefa Beebi Koya said 3.6.17 Legal Profession Committee that despite the ongoing negotiations between BC and the Inspector General of Police, and the latter’s several The Chairman said that BC is looking into updating the assurances, Investigating Officers and Officers in Charge compilation of BC rulings. Once this compilation has of Police District were still treating lawyers badly and been approved, it will be available on the Bar website. undermining them in front of their clients. She asked the Chairman to withdraw the Bar’s praise to the police. 3.6.18 Professional Indemnity Insurance Committee

The Chairman took note of Latheefa Beebi Koya’s The Chairman said that attendance at Getting Started! reservations and said that the incoming Council will Workshops has not been encouraging, despite the look into the suggestion of the hotline. positive feedback from Members who had attended it. He urged Members to take advantage of the workshop, Chew Swee Yoke recalled that in the 1970s, a hotline had as well as “START”, the legal starter kit given to Members been established between BC and the police following who want to start their own practice.

26 | 2012/13 annual report 3.6.19 Syariah Law Committee Tommy Thomas said that regardless of the Task Force’s recommendation, BC must remove the leave process. SI Rajah, who holds a Diploma in Syariah Law and The removal would solve the immediate problem and Practice, said that the late Tan Sri Professor Ahmad enable judicial review to be treated like every other Ibrahim had once declared that non-Muslims could system. practise Syariah law in certain states. He referred to the suit filed by a non-Muslim lawyer against the Fatwa Brendan Navin Siva said that the final draft of the Committee of the National Council for Islamic Religious Combined Rules of Court would be circulated to Affairs, and the ruling that non-Muslims cannot be Members of the Bar in a week’s time, and comments appointed as Syariah lawyers. By this rule, all non- must be received within a month. Unfortunately, it Muslim lawyers cannot practise Syariah law for the time would be too late to include Tommy Thomas’s proposed being, pending the outcome of the court’s decision. amendment in the Combined Rules of Court, as doing SI Rajah noted that this fundamental issue was not so would cause a delay of six months or so, on the covered in the Syariah Law Committee’s report, and AGC’s end. Brendan Navin Siva said that any change sought clarification on whether non-Muslim lawyers not requiring a legislative amendment can be effected are barred from advising clients on aspects of Syariah through the Rules Committee. Accordingly, Tommy law in other areas of practice such as conveyancing. Thomas’s proposal can be dealt with separately in that manner. The Task Force had already made some The Chairman clarified that the outgoing Council had changes to Order 53. not had the opportunity to address this issue, and said that it would be looked into by the incoming Council. The President’s Report and committees’ reports were adopted by the House. 3.6.20 Task Force on Combined Rules of Court Item 4 of the agenda Tommy Thomas referred to the issue concerning the To consider and, if approved, to adopt the Audited abuse of the ex parte leave stage in judicial review, Accounts of the Malaysian Bar for the year ended 31 which had been highlighted by Ambiga Sreenevasan Dec 2011 and Honey Tan Lay Ean earlier. He suggested that BC put forward its version of the Combined Rules, with the The Audited Accounts were adopted by the House, proposal that the provision regarding leave in Order 53 subject to amendment of the item “Other operating be removed, which would resolve the problem. Judicial expenses” at page 368 of the 2011/12 Annual review should be treated like any other initiating Report, whereby the expenses for the Legal Aid Fund proceedings, because no other proceeding in the civil (RM30,127), LawCare Fund (RM1,700) and Sports Fund system has a leave process. (RM588), which were incorrectly attributed to “Council Members”, should be attributed to “Committee The Chairman said that BC’s request to do away with meeting” instead. the leave process had been discussed with the Task Force, but he could not recall why the request had been left out of BC’s proposal.

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Item 5 of the agenda To consider any motions proposed in accordance with section 64(6) of the LPA

5.1 Motion no 5.1

“Motion regarding mandatory Continuing Professional Development Scheme”, proposed by Dipendra Harshad Rai (Chairperson, Bar Council Professional Standards and Development Committee), on behalf of Bar Council, dated 27 Feb 2012 WHEREAS: (a) the Bar Council Professional Standards and Development Committee (the “Committee”) has considered whether there is a need for the implementation of a mandatory Continuing Professional Development (“CPD”) Scheme for the Malaysian Bar;

(b) having considered international trends in favour of the implementation of such programmes for the purpose of practitioners of law and the context of, and circumstances relevant to, the Malaysian Bar, the Committee has come to the conclusion that the implementation of a mandatory CPD Scheme would be to the benefit of the Members of the Malaysian Bar; and

(c) the Committee has considered all the reservations or objections raised against the implementation ofa mandatory CPD Scheme, and has prepared the CPD Guidelines (herein attached as Appendix A);

IT IS HEREBY RESOLVED THAT: (a) the Malaysian Bar recognises the need for the implementation of a mandatory CPD Scheme;

(b) to facilitate the transition for Members of the Malaysian Bar, the mandatory CPD Scheme will be implemented on a voluntary basis for the first two years;

(c) the minimum number of CPD hours is 16 hours (units) in a 24-month cycle, obtainable by a variety of ways as listed in the CPD Guidelines; and

(d) Bar Council be authorised to take all necessary steps, after the pilot two-year voluntary programme, towards the implementation of the CPD Scheme including, if considered necessary:

(i) adopting the CPD Guidelines;

(ii) accrediting courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iii) organising courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iv) putting in place measures to ensure participation in the CPD Scheme and to inculcate acultureof continuing professional development amongst Members; and

(v) doing all such other things that are incidental or conducive to the successful achievement or betterment of the mandatory CPD Scheme.

28 | 2012/13 annual report The Chairman said that the motion provides an these. The solution is for all Members to take part in opportunity for a debate on whether there is a need to the change. The Chairman asked Members to give their set up a Continuing Professional Development (“CPD”) feedback on the CPD Scheme, and invited Dipendra regime in the Malaysian Bar, in view of numerous Harshad Rai of the KL Bar to move the motion. complaints about the declining quality of lawyers. The question is whether the problem could be dealt with Dipendra Harshad Rai said that all comments received through the CBC, which will act as the gatekeeper to from Members relating to the CPD motion had been the legal profession, or through CPD for practising taken into account. The motion reflects the collective Members, with the aim of bridging the gap between voice of the Malaysian Bar. He pointed out the senior Members who have the requisite skills and amendments BC had made to the motion, as indicated experience, and younger Members who generally lack below:

(a) the Malaysian Bar recognises the need for the implementation of shall implement a mandatory CPD Scheme;

(b) to facilitate the transition to the mandatory CPD Scheme for Members of the Malaysian Bar, the mandatory CPD Scheme will be implemented on a voluntary basis for the first two years;

(c) the minimum number of CPD hours is 16 hours (units) in a 24-month cycle, obtainable by a variety of ways as listed in the CPD Guidelines; and

(d) Bar Council be authorised to take all necessary steps, after the pilot two-year voluntary programme, towards the implementation of the CPD Scheme including, if considered necessary:

(i) adopting the CPD Guidelines;

(ii) accrediting courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iii) organising courses, seminars, workshops, conferences and other appropriate events, for the purpose of ensuring programmes for the CPD Scheme;

(iv) putting in place measures to ensure participation in the CPD Scheme and to inculcate acultureof continuing professional development amongst Members; and

(v) doing all such other things that are incidental or conducive to the successful achievement or betterment of the mandatory CPD Scheme; and

(e) upon the completion of the two-year voluntary CPD Scheme, the Malaysian Bar is to decide the effective date of the implementation of the mandatory CPD Scheme.

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Dipendra Harshad Rai hoped that the amendments with the problem of CPD. Members cannot operate in would dispel any notion, rumour or spin that the CPD a vacuum or argue that, as lawyers, they do not need motion was designed to deprive an advocate and to develop themselves continually. The CPD Scheme is solicitor of the ability to practise. He said that the not intended to judge Members; it allows Members to Malaysian Bar recognises the need for a mandatory develop professionally and to become better lawyers. CPD Scheme, and asked that BC be given a period of two years to put the nuts and bolts of the CPD Scheme Dipendra Harshad Rai explained that the CPD Scheme — as set out in the guidelines — into place. After the is divided into cycles. Each cycle runs for 24 months, transition period, BC will update the Members on what commencing from July 2012 until June 2014. The has been done, and Members will then decide on objective of the CPD Scheme is for an advocate and whether there would be any sanctions associated with solicitor to accumulate 16 CPD points over a cycle of 24 the mandatory CPD Scheme. Hence, there is no risk of months, or eight CPD points over 12 months. He said any Member losing his Practising Certificate or being that there will be no sanctions at the moment, and any referred to the DB. sanction the House consents to would only come into effect in 2017. Dipendra Harshad Rai said that after having spoken to a number of Members and having read their comments, Dipendra Harshad Rai explained that Members would he found a common thread in Members’ views — that be voting for the motion only, and not for the Guidelines, CPD is an important feature of a person’s career. So far, which is a work-in-progress. There is confusion no Member had said he or she did not believe in CPD, regarding the Guidelines, which some Members felt are or that a lawyer should stop learning the moment he or difficult to comprehend and onerous. BC can choose she is called to the Bar. The CPD programme had been not to adopt the Guidelines, depending on what the in existence, in some form or other, for about 10 years, House decides in two years’ time. The Guidelines with courses organised by BC, State Bar Committees, or provide very broad options for earning CPD points, and a third party. Many Members had attended courses that cater for all Members and their needs. Members are would now be recognised as part of the proposed CPD not limited only to courses organised by BC or State Bar Scheme on a regular basis. BC feels that it is time to make Committees, as conferences and seminars organised by CPD an integral component of the legal profession. The third parties, either domestically or abroad, can also CPD Scheme would provide systematic maintenance, qualify for CPD points. It is up to Members to choose improvement and broadening of knowledge and skills the programmes they wish to attend. If they want to for an advocate and solicitor’s professional career, and teach, write or do research, they can do so and gain would allow him or her to take ownership of his or her CPD points, as long as they can show that these are professional career. aimed at professional development. Senior Members will not be required to sit through a basic course, which Dipendra Harshad Rai outlined the aims of CPD, and said might be disrespectful to their level of knowledge and that quality is something that BC takes very seriously. experience. Instead, they could impart their knowledge The goal is not so much about arresting the decline, but and experience through teaching. more about looking into how to constantly improve the standards of the profession. People look up to lawyers Dipendra Harshad Rai said that the legal profession more than they look up to accountants, doctors, needs a CPD Scheme. This will be made mandatory at engineers and other professionals. Consequently, a later stage, in order to give BC sufficient time to put in lawyers owe it to themselves to exhibit that quality and place a detailed mechanism and invest in programmes, take CPD seriously. The Bar has the mechanism in place seminars, workshops and courses. It will also enable BC to support this. The inherent demand of liberalisation to collate the necessary information and data, in terms of the legal services sector forces Members to deal of which courses are preferred or regularly attended,

30 | 2012/13 annual report and who the good speakers are, in order to structure an Julie Thomas of CrimsonLogic Malaysia conducted a effective and comprehensive CPD Scheme. four-minute demonstration on how a webinar works, as a method of teaching via the Internet, based on Dipendra Harshad Rai said that foreign jurisdictions that the sample module of BC’s Professional Standards and have a mandatory CPD Scheme are Australia, Canada, Ethics Course for pupils in chambers. Hong Kong, Ireland, Kenya, Singapore, South Africa, the United Kingdom (“UK”) and the United States of The Chairman thanked Julie Thomas and invited America. Many Members have confidence in these Members to express their views on the motion. countries’ legal systems, judging by the number of cases regularly quoted. Their requisite number of CPD hours SI Rajah expressed his full support of the CPD varies. BC chose eight CPD hours in a calendar year Programme. He said that the quality of Members of because this number is reasonable to achieve, since it the Bar, and of graduates being produced by local is essentially one day in a whole year. Since members universities, is deteriorating. He added that BChad of other professions in Malaysia — such as architects, failed in its many attempts to have a common entry company secretaries, engineers, estate agents, financial point into the legal profession. The CPD Programme, planners, public accountants and surveyors — have a which is being promoted by BC, is an excellent idea that mandatory CPD Scheme, there is no reason why the can raise the quality of up-and-coming lawyers, either legal profession should be different. If Members say directly or indirectly. SI Rajah related his personal that lawyers are special, but the profession does not experience on how he upgraded his knowledge by have a mandatory CPD Scheme, they will look silly in the taking up a Master of Business Administration course. eyes of the other professions. Lawyers regularly hold Thereafter, he applied to become a member of the UK themselves out to be better than other professionals, Chartered Institute of Marketing. After he passed, the and champion a whole host of issues, including the rule Institute advised him to pursue a CPD programme, and of law and human rights. accorded him CPD points for legal talks he had given to the various institutions of learning in Malaysia. After Dipendra Harshad Rai said that the CPD Guidelines completing the CPD programme, he became a Fellow adopt a “trust the Member” approach. BC does not of the Institute. SI Rajah said that BC’s CPD Programme want to impose any obligation on Members on how to will facilitate Members to attain the 16 CPD points earn CPD points, but will leave it to them to determine required. their own professional development and to tell BC how many points they have earned. BC expects Members The Chairman corrected SI Rajah’s statement about the to do the right thing. The Frequently-Asked-Questions CBC and said that BC has not failed in putting in place a (“FAQ”) section in the Guidelines sets out the mechanics single entry point into the legal profession, as the CBC of earning CPD points. will definitely be implemented in the near future.

Dipendra Harshad Rai said that through the motion, Naranya Singh s/o Asa Singh of the Perak Bar suggested BC is seeking a commitment from the Malaysian Bar that all Members above the age of 30 be exempted that CPD will be taken very seriously. In future, this from the CPD Programme. He then asked Members mandatory CPD Scheme must contain sanctions to make who are approaching the end of their years of practice it work effectively, but BC will come back to the House not to speak in favour of the motion. before any sanctions are imposed. In the meantime, a voluntary period is necessary to enable BC to finetune Srimurugan s/o Alagan expressed his full support of the programme and make it workable for Members, the motion, but with the qualification that no feebe which is the aim of the motion. BC needs the support imposed on Members who want to attend any CPD of Members for the mandatory CPD Scheme. courses in the initial years, since Members, particularly

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sole proprietors, are financially stretched by having Leonard Teoh Hooi Leong further questioned the to pay not only their BC subscription, but also the PII rationale for including attendance at AGMs for CPD premium, e-filing fees, etc. Srimurugan s/o Alagan said purposes because he had observed that some Members that whatever knowledge a Member had acquired in of the Bar registered their attendance for the AGM and law school would be obsolete by now because much had then left. He said that Members in their twilight years, changed, and continued to change. Hence, it is in the like him, needed to sign up for CPD but the programme interest of the Bar and Members to continually upgrade must relate to the latest developments in law, so that it themselves by learning new skills and knowledge. benefits such Members. The proposed exemption of a Regarding the question of whether sanctions ought category of Members based on age and seniority at the to be imposed on Members who do not comply with Bar is not good enough. The Law Society of Hong Kong the CPD requirement, Srimurugan s/o Alagan said that imposes a strict exemption for Members who are above no Member likes to be compelled. He suggested that 75 years old and have more than 40 years of practice. BC use a “soft” approach to encourage Members to They are required to give an undertaking to the Law participate in the CPD Scheme voluntarily during the Society that they will not be in active practice except to initial stage, and sanctions can be gradually imposed affirm affidavits and attest signatures. when Members are ready. Leonard Teoh Hooi Leong referred to the article on CPD The Chairman said that the issue of sanctions is in The Star by Roger Tan Kor Mee (of the Johore Bar), addressed in the motion. He added that most events who had expressed his reservations concerning the organised by BC and State Bar Committees cost only conflict with the LPA and the Federal Constitution. Roger about RM50 to RM100 each. Tan Kor Mee had mentioned that the Law Society of Singapore has a special department that conducts CPD Srimurugan s/o Alagan said that the CPD programme courses and ensures the availability of good speakers. should not be confined to law-related courses, but Leonard Teoh Hooi Leong said he would not support the should cover any skill that may be relevant to a Member’s motion in its present form because he resents anything practice. He cited the case of a South African lawyer that is mandatory, and added that it is the duty of who attended a course on wine production because the every lawyer to upgrade his legal knowledge, without knowledge was relevant to the case he was handling on compulsion. behalf of his client. The course was recognised by the South African Bar for the purpose of CPD points. The Chairman pointed out that Leonard Teoh Hooi Leong’s comments related to the Guidelines. According Leonard Teoh Hooi Leong of the KL Bar questioned what to the motion, there is no compulsion on Members BC had done since the scheme was first introduced nine during the two-year trial period, as the scheme is years ago, since the latest motion is BC’s fourth attempt. voluntary. The motion provides that BC must come back He commented that the Guidelines were drawn up in a to the House after the trial period is over, to obtain the slipshod manner, although he meant no disrespect to House’s consent to make the CPD Scheme mandatory. Dipendra Harshad Rai who had done some good work. He said that the recent article in The Star by Shaila Leonard Teoh Hooi Leong remarked that although BC Koshy did not provide statistics relating to the vote had been given nine years to set up the CPD Scheme, taken on the CPD motion in 2003. In 2005, based on the yet it was asking for another two years. quorum then of one-fifth of the Membership of the Bar — ie about 2,000 Members — fewer than 500 Members GK Ganesan expressed his unreserved and unqualified supported the CPD motion. This was due to the fact support for the motion, because the CPD Scheme that under the LPA, the quorum for general meetings cannot become mandatory unless the House gives its is required only at the commencement of the meeting. consent and an appropriate amendment is made to the

32 | 2012/13 annual report LPA. GK Ganesan asked BC to set up a CPD Committee political office, thereby rendering them ineligible to to look into a number of suggestions: serve as Council members. This was because BC had (a) An appeal mechanism be made available not spoken up on the issue. Now BC is different because to Members whose CPD credits may not be it makes a stand and calls for change for the better. recognised by BC; (b) CPD courses must be run by BC around the time Ngan Siong Hing said that England’s CPD programme when Members apply to renew their Sijil Annual, is something that cannot be taken lightly. If a person so that Members who do not meet the CPD wants to organise a course, he or she must communicate requirements can make up for the deficiency; with the relevant statutory body to obtain recognition (c) Members who earn more than the required for the course so that CPD credits can be accorded to number of CPD points in one cycle should be attendees. BC could consider applying this approach allowed to accumulate the excess point(s) for the in Malaysia during the two-year trial period. In our following cycle; country, unlike in England or Hong Kong, the legal (d) There must be sufficient staff support in terms profession is fused. When a person who qualifies as a of looking for suitable lecturers and organising barrister in England returns to Malaysia, and spends the appropriate courses; rest of his or her career doing conveyancing work, that (e) Octogenarians should not be exempted because Member needs to undergo CPD to change his or her they are the very ones who need to attend CPD mindset. If a person qualifies from a local university, courses, as some of them might suffer from a he or she can practise both conveyancing and court lapse of memory; work, but if he or she chooses to practise his or her own (f) There must be an independent standards body to law, then the CPD should apply to him or her. The CPD maintain standards for the CPD Scheme; and Programme should change the minds of attendees and (g) The CPD Programme should be open, and BC broaden their thinking. should not have a monopoly over the courses approved for CPD points. Ngan Siong Hing recalled how naïve he had been when he first started practice, as he had wrongly addressed a Jason Kay Kit Leon of the Malacca Bar said that his sole simple letter to a bank using the article “the” preceding intention in attending the AGM that morning was to the bank’s name. The bank’s regional manager pointed oppose the motion, but he had a change of mind after out the error to him in a diplomatic manner, and he BC amended the motion, particularly with the addition took it as a form of professional education. Sometimes, of paragraph (e). He asked that BC be given the people do not understand the importance of small opportunity to try out the Scheme during the two-year things that can be learned through CPD. Ngan Siong trial period. If it does not work, the House can reject it. Hing said that if doctors around the age of 65 and above Jason Kay Kit Leon expressed his support of the motion who practise occupational medicine are required to since it does not have a mandatory element. undergo CPD, then BC should not exempt octogenarians because, by attending CPD courses, they will receive Ngan Siong Hing of the Perak Bar said that although he new ideas that will help them to advance in this modern had not attended the AGM over the last three years, he computer-savvy age. He hoped that many Members had made a special effort this year solely to support the would support the motion. motion, because he believed that BC had really changed for the better, compared to the Council of 1974, the Jeremiah Ravindran Gurusamy of the KL Bar said year he joined the Bar. He recalled that Karpal Singh that there are two types of courses: Professional and he had struggled in Parliament during those days Standards and Development courses and Continuing in relation to the debate on the proposed amendments Legal Education courses. BC also recognises other to the LPA to impose restrictions on Members who held courses — such as “How to Start Your Office” — which

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are not strictly limited to legal education. Some of Richard Wee Thiam Seng of the KL Bar said that the the programmes run by the KL Bar Committee have a National Young Lawyers Committee (“NYLC”) had minimal fee of RM30 for pupils, and RM50 for lawyers, debated this issue during its last few meetings. He was to cover the cost of refreshments and materials. The pleased to inform the House that NYLC fully supports KL Bar Committee had decided, two days earlier, to the motion, even before BC’s amendment. Concerning organise at least one course free of charge each month. the basis for computing CPD points, he asked if articles written on law blogs by practitioners in small law DP Vijandran said that while participating in this AGM, firms would qualify for CPD points. If the answer is he had unwittingly gained some form of professional yes, he would urge Members to write and have their development because he realised that he had mistakenly articles published in Praxis and Relevan — BC and KL stated that he was at the tail-end of his practice. He Bar Committee’s publications, respectively— as these acknowledged the valid point made, that octogenarians would be avenues open to Members to earn CPD should not be given an exemption, because it is true points. Richard Wee Thiam Seng asked BC to look at the that as one ages in the profession, one gets set in one’s possibility of recognising articles written by Members ways. One then thinks one already knows what one and posted on Facebook and Twitter, for CPD purposes, ought to know, and one then becomes complacent. because many lawyers prefer to tweet each other Complacency is a dangerous thing and should be rather than communicate on a face-to-face basis. Social rectified at every stage of one’s profession, and not only media has become a part of modern life and BC must at the junior level. DP Vijandran said that new lawyers adapt and bring it into the Bar’s system. Another issue who enter the profession are familiar with the latest is how to ensure full attendance by Members at CPD developments in the law and have the most advanced programmes. Richard Wee Thiam Seng urged BC to topics under their belt, whereas senior Members have stop trying to find ways to regulate Members’ conduct, more or less settled down on the basis of what they had because Members should be left to regulate their own learned a long time ago. Hence, junior Members may conduct. Members should be honest, and not merely not need CPD as much as senior Members. sign up for a CPD course, without attending it, and later claim CPD points. DP Vijandran proposed that the exemption be removed and that CPD be made applicable to all Members of the Saravanabavan s/o Mathialagan of the Perak Bar said Bar, because learning should never stop. The moment that the CPD Scheme should not be mandatory. He one stops learning, one will reach one’s actual age. said Dipendra Harshad Rai’s comparative study of the Members have to continue to learn because there are mandatory CPD schemes in various foreign jurisdictions too many areas of law to cover. It is just impossible had not specified whether those CPD schemes had for an individual lawyer to cover all aspects of law on produced the desired effect. BC’s CPD Guidelines a continual basis, amidst the endless changes that are contain only raw data, not empirical evidence. According taking place. Hence, a CPD Scheme is necessary, as to the statistics on the UK CPD scheme, published in it will provide Members with the impetus to improve a recent article by Aldrich in 2011, a large number of themselves. Members have to recognise the principle barristers who did not collect sufficient CPD points that they need CPD. The two-year trial period is a good were unable to renew their Practising Certificates, move as it will help BC and Members to work things out. and were left fuming. The Bar Standards Board of the Although BC does not need the consent of Members to UK conducted interviews with these angry barristers. have the trial period, a long-term commitment for CPD Saravanabavan s/o Mathialagan questioned whether needs to be obtained from the House. DP Vijandran Members wanted to experience such an outcome here. said he would vote in favour of the motion subject to He asked if more research could be done regarding the removal of the exemption for octogenarians. the other jurisdictions, and proposed that if Members’

34 | 2012/13 annual report right to practice is dependent on accumulating points, under the heading “Advisory and support service for BC should consider reducing the subscription rate for Members” in the LawCare Committee’s report, wherein all Members. it is stated:

V Vishnu Kumar of the Selangor Bar expressed his Stress, depression, health problems and concern over the possibility that Members who fail addictive illnesses can affect the careers to collect sufficient CPD points may resort to the High and practices of Members, cause misery to Court remedy for leave to apply for a court order to afflicted Members and their family members, compel BC to issue their Sijil Annual. He pointed out and may even lead to suicide. that the Guidelines did not take into consideration the fact that many solicitors are involved in social and RSN Rayer said that instead of doing something to cultural work, and retained as secretaries by several help Members in their practice, BC is taking steps to societies, although the work may not be connected impede Members’ progress by imposing a mandatory with their legal practice. CPD Scheme on them. He admitted that he does make mistakes, and tries to improve himself by reading up The Chairman said that BC discussed the issue of CPD judgments and books on cross-examination. He asked sanctions the previous day and decided that the CPD BC not to make the CPD Scheme compulsory or treat Scheme will not be tied to the issuance of Sijil Annual. Members like schoolchildren. If Council members have nothing better to do than to make such proposals, he RSN Rayer said he had concerns as to whether the CPD would put forward other suggestions. Scheme would help to enhance his skills as a criminal law practitioner. He would oppose the Scheme if it is RSN Rayer criticised paragraph 2.3(e) of the Guidelines, mandatory and linked with the issuance of Sijil Annual. which states: He questioned if BC was deliberately whittling down the effect of the motion because BC knew that if CPD The course must be presented in a suitable was made mandatory, the House would oppose it. He setting conducive to a good educational recollected that BC had agreed with the AGC regarding experience. The course must be scheduled certain important amendments to the LPA concerning at a time and location so as to be free from DB, rulings and disciplinary procedures the previous interruption from telephone calls and other year, without consulting the Bar. The Bar then took the office matters. former President to task at the last AGM for not having sought feedback from Members. RSN Rayer said that RSN Rayer said that the paragraph would restrict him unless BC can give Members a clear blueprint regarding from answering his wife’s telephone call, should she CPD, he was not prepared to support the motion. call him in the midst of a CPD course. He asked BC to go back to the drawing board and come up with a RSN Rayer informed the House that lawyers in Penang proper blueprint and not force the CPD Scheme upon go to court on Sundays. Hence, Saturday is the only free Members. day for them to spend time with their families. He said he had serious concerns because Members in Penang The Chairman remarked that it was unfair of RSN Rayer would now have to spend their free time attending CPD to make such comments. The amount of work done by courses. Lawyers practise throughout Malaysia, but the BC during the year is reflected in the Annual Report. problem is that courses are frequently conducted by BC in KL. He asked BC to explain why this was so. He drew P Jeyakumar of the KL Bar said that the motion is Members’ attention to page 208 of the Annual Report, mandatory in nature, as evidenced by the wording

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of paragraph (a) of the resolution, which states that injunctions when they commenced practice, as such “the Malaysian Bar shall implement a mandatory CPD injunctions were not in existence then. He said that Scheme”. He said that BC was trying to whittle down criminal law practitioners, himself included, who had the effect of the motion by amending paragraph (e), lost in a number of cases and whose clients had been regarding the effective date of the implementation of sent to prison or were on death row, need to attend the mandatory CPD Scheme. lectures conducted by criminal law experts such as Baljit Singh. Regardless of whether Members win or P Jeyakumar said that the motion imposes an obligation lose cases, or whether they practise criminal or other on BC to come back to Members for a date to put the areas of law, the CPD Scheme will benefit them in scheme into effect, but the CPD Scheme would still be the long run. While it is true that nobody likes to be mandatory. He said that personally, he does not like compelled, the time has come when the Malaysian anything that is mandatory in nature, and prefers the Bar must become a mature Bar and look at the issue usual manner of learning things. positively. Jagjit Singh said that since he had spoken to the Chairman privately about the Guidelines, he would Rathakrishna Shanmugam of the Perak Bar, a former BC not raise that matter at the meeting. He asked that the employee in the continuing legal education department, motion be put to a vote. said that in 1997/98, the department recorded a surplus of RM30,000. The surplus increased to RM200,000 Tommy Thomas said that it is a truism that a lawyer’s the following year, during the economic downturn. real education begins on the date of his or her call to the The registration fees then were RM30, and RM50 to Bar. Whatever education he or she had received before RM100, for pupils and lawyers, respectively. He said that date, whether at Oxbridge or any other university, that when he began practice, he used to frequent the or during the nine months of pupillage, had merely Bar library every fortnight, with the aim of improving been preparatory. The late Justice Harun Hashim was himself professionally. In his view, BC should not force absolutely correct when he reminded Members that CPD on Members or treat them like schoolchildren. He their date of admission was the beginning of their said that he had been in criminal practice for 10 years, education. Tommy Thomas said he would like to inspire and if he did not know something, he would consult and encourage Members of this honourable profession his good friends, which was the trick of the trade. He to note that public interest places a demand on them questioned the type of lecturers BC would engage for to perform their services as competently as possible. the CPD programmes, and anticipated that BC would Lawyers must live up to that high standard on a day-to- engage “friends” because BC is out to make money day basis. He cited the shining examples of two great from Members. He concluded by saying that he would and illustrious lawyers — Peter Mooney and Mahadev oppose the motion. Shankar — that Malaysia has produced. What distinguishes them from the other 13,500 Members The Chairman commented that Rathakrishna is the single important factor of self-education, arising Shanmugam’s comments were untrue and unfair, and from their diligence, industry and hard work. Tommy assured Members that BC has no intention of making Thomas urged Members to try and improve themselves money out of them. in order to be the best and the brightest in their daily practice, which would require self-education. If Jagjit Singh of the KL Bar expressed his full support for Members do not possess the discipline to self-educate, the motion despite the fact that he had been vocal on eventually Parliament will intervene and tell lawyers the issue over the last few occasions. He said that the that they are no different from the other professions. CPD Scheme is a good idea and will certainly benefit He said he was delighted with the humility shown by all Members, especially the senior ones, who would DP Vijandran and Jagjit Singh, two outstanding senior not have known about Anton Piller orders or Mareva Members, who admitted that they need to be taught

36 | 2012/13 annual report daily. Tommy Thomas proposed that there be no Members’ daily practice. He said that the CPD scheme exemption from the CPD Scheme for any category of needs to be mandatory, but the word “mandatory” is Members. basically an idea. If Members can accept that CPD is an important part of their professional career, mandatory Ambiga Sreenevasan said that she was delighted to is really a mind-over-matter issue. The CPD Scheme hear, from a consumer’s public interest point of view, will not affect how Members operate as advocates that doctors are keeping themselves up to date through and solicitors. If Members want Malaysia to be a good the medical profession’s compulsory CPD programme. and preferred legal destination when liberalisation of She said that she is still learning, even after completing the legal services sector takes place, they must show almost 30 years of practice. The problem with lawyers that professional development is an integral part of is that most of the time, they do not know what they their career. It is really an ideological argument. The do not know. Hence, the CPD Scheme is the only way mandatory element is related to reporting of CPD to find this out. Lawyers should have the humility to compliance when Members apply to renew their Sijil accept the proposed CPD Scheme and give it a try. In Annual. Even if Members have zero attendance, it does her view, the CPD requirements are not difficult to not matter, as the aim of reporting is to enable BC to comply with, and ought to be made mandatory right know what courses appeal to Members, what should from the start, and not voluntary for the first two years. be avoided, and who the good teachers are. Dipendra She asked BC to make the Scheme as easy as possible Harshad Rai concluded by quoting the late Steve Jobs, for all Members, so that their minds will be open to it. who had said, “Be a yardstick of quality. Some people She said she would be very happy to learn as well as aren’t used to an environment where excellence is teach. Members who do not want to learn can teach, expected”, and urged Members to vote on the motion provided they are capable of teaching. The CPD Scheme with open eyes. will raise the standards of the Bar and make Members look good in the eyes of the public, because it will show Voting on the motion took place by a show of hands. that they want to keep learning and to become better lawyers. Resolution:

Dipendra Harshad Rai noted that most of the comments The motion, as amended, was put to a vote and was that had been raised concerned the Guidelines, which carried: 321 votes in favour, 137 against, and nine is a work in progress. Over the next two years, BC will abstentions. work very hard to finetune and make the Guidelines as seamless as possible, to ensure minimal disruption to The Chairman said that BC will take note of all comments made and do its best.

5.2 Motion no 5.2

Motion regarding the Advocates and Solicitors Disciplinary Board, jointly proposed by MS Murthi, Kumar Thangaraju, Sundaresan Krishnan and Thanalakshmi G, dated 1 Mar 2012 (a) Whereas the Advocates and Solicitors Disciplinary Board [Disciplinary Board] is a constituent part of the Legal Profession and reports to the Supreme Body of the Profession being the General Meeting of the members.

(b) Whereas the Disciplinary Board has a duty to act without fear or favour and to uphold the charter of the Profession which is the Legal Profession Act 1976 and in particular the fundamental doctrine as spelt out in section 42 (1) (a) “to uphold the cause of Justice without regard to its own interest and uninfluenced by fear or favour.”

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(c) Whereas it has been admitted publicly by its members that the Disciplinary Board is continuously under pressure from disgruntled complainants whose complaints were not decided in their favour.

(d) Whereas it has been perceived to be a fact by some Members that the Disciplinary Board errs in favour and on the side of the complainants and against the members, even when the scales of justice are evenly balanced.

(e) Whereas as a result of this trend, the complainants have resorted to the Disciplinary Board on frivolous complaints and admittedly abused the legal process by filing complaints with the ulterior motive to pressurise the members to submit to the complainants’ unreasonable demands on the threat of being hauled up before the Disciplinary Board. Now it is hereby Resolved that: (1) The Disciplinary Board be and is hereby censured for injuring the interest of the members by suffering some complainants to abuse the legal process of filing complaints, and on some occasions erring in favour of the complainants when the scales of Justice are evenly balanced.

(2) The Disciplinary Board is directed to exercise its discretion without regard to its own interest, uninfluenced by fear and summarily dismiss any complaints by any present or ex-employees of any members employed directly or through their partnership firm or nominee companies, when the complaint is grounded on the terms and conditions of employment, termination or dismissal thereof.

MS Murthi said that due to time constraints, he would as a pressure tactic against lawyers, but that DB is concentrate only on the first part of the motion, relating powerless because if it took a strong position and to censure. He then highlighted the grounds for the summarily dismissed the complaints, it would have to motion. He said that the fundamental object of DB is face the wrath of complainants. On the other hand, DB to provide speedy redress to legitimate complaints. The wields draconian powers against lawyers. MS Murthi Tun Hussein Onn Committee Report had recommended quoted the statement made by the former President of two safeguards for complaints to be vetted by an the Bar at the 64th AGM held on 13 Mar 2010, under Investigating Tribunal (“IT”). Only complaints that had the heading “Motion against the Advocates & Solicitors been filtered could be tried, and such complaints could Disciplinary Board, jointly proposed by Derek Tan Boon be challenged via judicial review. Nevertheless, the Chong, MS Murthi, Lian Meng Wah and Mohamed two safeguards were summarily removed by the 2006 Nordin b Hj Mohd Yusoff, dated 18 Feb 2010” in the amendments to the LPA, on the basis that lawyers had minutes of that AGM: abused the process of judicial review and the IT process had been a waste of time. Thereafter, 3,600 lawyers The Chairman briefed Members on the assembled at an Extraordinary General Meeting, which disciplinary procedure. He said that DB looks culminated in the finetuning of the LPA amendments at complaints against respondents right up to vide the VC George Report. the end of the disciplinary process. For every complaint thrown out by DB, BC receives many Unfortunately, although six years had lapsed, the letters from complainants alleging unfairness amendments had not yet been implemented. MS by DB. These complaints are also extended Murthi stated his hope that the amendments would to the Biro Bantuan Guaman, the Ministry be tabled and passed in 2012, in light of the assurance of Justice, Consumers Association of Penang, given by the Chairman earlier that morning. He alleged etc by complainants. The impression given to that some complainants had used the DB mechanism these bodies is that all lawyers are crooks and DB acts to protect them.

38 | 2012/13 annual report MS Murthi said that since all complaints are now the money, but the seller objected, as he deemed the referred to a Disciplinary Committee, DB’s vetting sale to be still valid. The lawyer then legitimately filed process and judicial review no longer exist. Lawyers are, an interpleader summons and affidavit, which was therefore, made to go through the entire disciplinary served on the party. The purchaser filed a complaint process. The second stage is even more pernicious. to DB, alleging that the lawyer had refused to release Although the law provides that the burden of proof the stakeholder’s money. The lawyer filed a reply lies with the complainant, who is obliged to prove his enclosing exhibits of all the relevant documents in the complaint beyond any reasonable doubt, this does not interpleader summons. The lawyer was hauled up happen at DB. On the contrary, the burden of proof before DB and the complaint was dismissed after he is placed on lawyers to prove that they are innocent. gave his explanation. MS Murthi asked why the lawyer If they are unable to do that, they will be convicted or had to be subjected to the whole disciplinary process, punished. Hence, the scales of justice are not evenly since the interpleader summons had already been filed. balanced. The fact that DB errs on the side of the public DB ought to have summarily dismissed the complaint, as opposed to lawyers is borne out by the statement, but did not have the courage to do so. It was also made in 2006, by the then-President of the Bar: afraid that the complainant would, as mentioned by the former President Ragunath Kesavan, start writing to The Tun Hussein Onn Report, which reviewed everyone. the LPA regarding the discipline of Members, in its preamble, suggested that the negative MS Murthi then proceeded to describe the second perception of the public of the profession, complaint, involving Nadarajan Veraya who had been especially regarding dishonest lawyers, was employed in the firm of Messrs Bhag Sulaiman & Co. the main reason for its establishment to After Nadarajan Veraya had left the firm, a sumof consider amendments to the LPA to address RM280,000 was sent to the firm in respect of a case the sorry state of affairs. No doubt the LPA that he had previously handled. The firm withheld amendments were drafted with this primary the money, but a complaint was directed at Nadarajan purpose in mind as well. For the privilege of Veraya alleging that he had taken the money. At first, self-regulation, it can be said that one may Nadarajan Veraya was not aware of the complaint, but have to err on the side of the public interest, once he came to know about it, he met the complainant while it may conflict with the interest of the and told him that he did not want to waste his time. individual Members. If the firm did not want to release the money, he would pay the sum to the complainant, and he did MS Murthi said that in other words, if the scales are so. Thereafter, he did not bother about the matter evenly balanced, DB errs on the side of the public any further. However, DB proceeded with its inquiry interest, at Members’ expense, and asked why this into the complaint, in Nadarajan Veraya’s absence should be so when lawyers are equally entitled to the and without his knowledge, and subsequently made protection of the law. He then related three cases to an order to strike him off the Roll. Nadarajan Veraya illustrate this point. The first case involved a lawyer who only realised it when he came across a notice to that was afraid of being named. The lawyer’s counsel met effect in the press. He then went to DB to find out what MS Murthi and disclosed to him the facts relating to a had happened and thereafter filed an application for sale and purchase transaction. The Sale and Purchase an extension of time to appeal against the DB order. Agreement was signed and money was deposited with DB told him that it would grant him the extension, on the lawyer as stakeholder. When the sale was aborted, condition that he must not sue DB or the complainant. the purchaser asked for a refund of the money. The Nadarajan Veraya refused, and DB objected strenuously lawyer wrote to the seller informing him about the to his application for leave. The High Court, comprising purchaser’s request and sought his consent to release three Judges, dismissed Nadarajan Veraya’s application

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on the basis that he was out of time. In respect of of GK Ganesan said that the motion attacking the DB is his appeal to the Federal Court, he had no choice but to similar to previous motions filed by MS Murthi over agree to DB’s condition. It has been two years since he the last three years. If the Bar wants DB to function was struck off the Roll. as an independent body, Members must allow DB to do what is right. There are legal processes in place to The Chairman interrupted MS Murthi at this stage and protect practitioners. Based on the words used by MS said that he had, at the outset of discussion on the Murthi, such as “DB errs in favour and on the side of motion, given him 10 minutes to address the House, the complainants”, “trend”, “ulterior motive”, DB be and reminded him that the time limit had expired. “censured for injuring the interest of the Members” and Pursuant to the rules governing general meetings, which DB be “directed to exercise its discretion”, the Bar might empowered the Chairman to regulate the proceedings, as well not have DB, because if Members can come to the Chairman asked MS Murthi to conclude his remarks the AGM and tell DB how to do its work, then Members in one minute. can do what they like. For these reasons, GK Ganesan opposed the motion. MS Murthi refused to accede to the Chairman’s request, and remarked that there was no point in putting his Roger Tan Kor Mee said it would not be proper for the motion to the AGM if he was not allowed to move his House to adopt the motion, especially when there is a motion. He indicated that he would continue to speak process for appeal available to Members against any DB as he had a lot of issues to raise. decision that they are not happy with. If the proposers of the motion were referring to complaints that had The Chairman pointed out that MS Murthi was raising been lodged against them, it would be highly improper issues outside scope of the motion. for them use the AGM for such a purpose. He therefore opposed the motion. MS Murthi said that he wanted to elaborate on the reasons for a censure against DB. He registered S Krishnan of the KL Bar said that according to MS his protest regarding the time limit imposed by the Murthi, DB Members, who are intelligent lawyers Chairman, stating that he was entitled to present representing the Bar, should possess minds of their his motion because it concerned the livelihood of own, and not merely accept a complaint that is referred Members. He accused the Chairman of imposing the to DB. He described the case of a complainant who time limit on him, and demanded that he be given disliked a lawyer he was working for. When the lawyer another 10 minutes. terminated the complainant’s contract of employment because the work was unsatisfactory, the complainant The Chairman said that the House was anxious to move lodged a complaint at DB, when he ought to have gone on to the next motion. to the employment office instead. DB should not accept the complaint, as there is no basis to investigate such a MS Murthi said that he could not proceed if the complaint. Chairman wanted to constrain him, and would leave it to the Chairman. He then left the stage under protest. The Chairman said that in case Members were labouring under the wrong impression, statistics support the fact The Chairman said that the Malaysian Bar is a self- that there are complaints that are summarily dismissed regulated body. Paragraph (2) of the resolution by DB. concerned individual cases, whereas paragraph (1) is a statement that paints the DB with a broad brush, Resolution: without any justification. The motion was put to a vote, but was not carried: 11 votes in favour, 91 against, and 13 abstentions.

40 | 2012/13 annual report 5.3 Motion no 5.3

Motion regarding the Advocates and Solicitors Disciplinary Board, proposed by Naran Singh and jointly seconded by Pritam Singh Doal, GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012 (1) We all the members of the Bar had been forced to contribute towards the Advocates & Solicitors Disciplinary Board.

(2) We are also made the victims and scapegoats for frivolous and unnecessary complaints.

(3) At times, the Complainant simply files in a complaint and do not attend the inquiry, but the Disciplinary enquiry is conducted in the absence of the Complainant; where is the principle of natural justice and the right to cross examine the Complainant.

(4) Let it be, whatsoever the most important aspect of the Advocates & Solicitors Disciplinary Board is when a lawyer is suspended or struck off the roll and has filed an appeal to the High Court, the particular lawyer has no choice but to seek the assistance of a practicing lawyer to represent him, the question that arises who is paying the legal fees to this lawyer.

Should it not be the Bar Council, in particular the Advocates & Solicitors Disciplinary Board. NOW IT IS HEREBY RESOLVED That a Motion been taken, that the Bar Council in particular, the Advocates & Solicitors Disciplinary Board should bear all expenses incurred by a lawyer who files an appeal to the Higher Courts in respect of any adverse decision made by the Advocates & Solicitors Disciplinary Board against any lawyer.

Naran Singh said that when a lawyer, against whom disciplinary action is taken, files an appeal to the High Court and subsequently to the Federal Court, he normally engages another advocate and solicitor to act for him, and pays the latter’s expenses out of his pocket. Naran Singh proposed that such expenses be paid to the aggrieved lawyer out of the Discipline Fund.

The Chairman said that on occasions when BC had erred in its complaint and the aggrieved lawyer succeeded in his appeal to the court, with costs awarded against BC, BC had duly fulfilled its obligation. The Chairman added that since all solicitors acting for BC do so on a pro bono basis, BC had, at its meeting held the previous day, taken the view that it would not support the motion.

Resolution:

The motion was put to a vote, but was not carried: 17 votes in favour, 76 against, and 11 abstentions.

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5.4 Motion no 5.4

Motion regarding the death penalty, proposed by Naran Singh and jointly seconded by Pritam Singh Doal,GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012 (1) As we all know, passing death sentence on any person in the world is the most draconian and heinous sentence, more so in a civilised nation like ours.

(2) We are no more in the era of tooth for tooth, blood for blood, then why is there a necessity to have death sentence.

(3) For your kind information, Mr Chairman, and my fellow Members of the Bar, there are hundreds of prisoners in the Malaysian prison today having death sentence been passed on them, either, by High Court, the Court of Appeal and the Federal Court.

(4) Mr Chairman, my fellow members of the Bar, as we all know, death sentence is not a solution to stop crime, therefore, what is the necessity to have this sentence for the sake of taking a human life.

(5) In most part of the world, death sentence has been abolished because of its draconian effect.

(6) What happens after death sentence has been carried out and many years later, the truth prevails that they had been impropriates during trial, can we bring back their lives?

(7) In Malaysia today, we have two (decided) and reported cases where the court found improper conduct on the part of the police during their arrest and investigation which could have led to death sentence. — Lee Eng Kooi — Chang Kin Yin NOW IT IS HEREBY RESOLVED That the Malaysian Bar takes immediate steps including going to the streets for demonstration, sending a memorandum to His Majesty The King of Malaysia, to repeal all acts which include death sentence and to all those who are waiting for death sentence to be substituted with life imprisonment.

Naran Singh said that according to an article carried The Chairman informed Naran Singh that BC shared by The Star on 2 Mar 2012, the Minister in the Prime his view regarding the death penalty, and that Charles Minister’s Department, Dato’ Seri Mohamed Nazri Hector Fernandez, N Surendran, Amer Hamzah Arshad Abdul Aziz, had stated his opposition to the death and Sreekant Pillai had moved a similar motion in 2006. sentence and sought public support for its proposed BC had looked at Naran Singh’s motion at the Council abolition. Based on statistics compiled by the Prisons meeting held the previous day, and took the view that Department, the number of people waiting to be it should not be adopted. The Chairman then invited hanged is alarming. Members must accept the fact that Andrew Khoo Chin Hock, Chairperson of the Human the criminal justice system in Malaysia is not perfect. Rights Committee (“HRC”), to explain the reasons He said that his motion calls for the Bar to take all behind BC’s stand. measures to stop the death penalty.

42 | 2012/13 annual report Andrew Khoo Chin Hock of the Selangor Bar said that into account the following: what BC and HRC are doing; BC fully supports the principle that the death penalty the press statement entitled “Abolish the death penalty should be abolished. The resolution calling for the now”, dated 13 Oct 2011, reproduced at page 311 of abolition of the death penalty that was passed by the the Annual Report; and his assurance that HRC is very House in 2006 with a substantial majority, is still binding involved in campaigns and programmes to educate the on the Bar. The work done in this area by the Bar, and Malaysian public about the futility of the death penalty. specifically the HRC, is reflected at page 173 ofthe He urged Naran Singh to withdraw the motion rather Annual Report in the section entitled “Death Penalty”. than force it to a vote and have it misreported in the The Star article related to the press conference held by press the following day. the Minister of Law, Dato’ Seri Mohamed Nazri Abdul Aziz, on the occasion of the debate, among university Naran Singh said that he put forward the motion of his students, organised by HRC — together with the own volition after reading various newspaper articles Delegation of the European Union to Malaysia, and on the death penalty. He cited the case of a Sabahan SUHAKAM — on 1 Mar 2012, on the efficacy and need boy who was due to be hanged in Singapore, where for the death penalty. Alarmingly, quite a number of the the Malaysian Government had appealed for clemency. students were in favour of the death penalty. Andrew He asked if the Malaysian Government is making a Khoo Chin Hock said that the three bodies intended to mockery of itself because it executes its own citizens engage more specifically with the students, by holding but had made an appeal to Singapore not to hang the a series of debates and mock trials to give them a Sabahan boy. Naran Singh proposed that his motion be wider perspective on the issue. Going to the streets, as amended by deleting the phrase “going to the streets mandated by the motion, may not be the best option for demonstration, sending a memorandum to His because the Bar is not ready for this. What is needed is Majesty The King of Malaysia”, as he still wanted the an increase in the level of education and campaigning Bar to proceed with the motion. on this issue. The Chairman said that it was not correct to ask the Andrew Khoo Chin Hock said that he was not in favour Government to repeal all acts that include the death of the motion, for two reasons. Firstly, the motion talks sentence because technically, it would mean that the about repealing all legislation where the death penalty Bar is asking for the repeal of the entire Penal Code. is provided for. Taken literally, the motion seeks a repeal of the Penal Code in its entirety. This is not really what Naran Singh said that the motion affects all Acts that the House wants. Secondly, the motion requires the have the provision for a mandatory death sentence House to do certain things, but the Bar must be given for acts such as murder and kidnapping, and calls for the flexibility to decide how to go about the campaign, the penalty to be abolished and substituted with a life which will take time because the idea of the death sentence. penalty is still quite prevalent in the minds of many people, including the younger generation. Hence, this Brendan Navin Siva said that almost everyone is in may not be the appropriate time to adopt the motion. favour of abolishing the death penalty, and suggested that Naran Singh amend the motion to something that Andrew Khoo Chin Hock said that if the motion is Members could agree upon. Naran Singh agreed. not carried, all that will be reported by the press is the headline that the Malaysian Bar voted down the Discussion on the motion was adjourned to permit motion. This would make it appear that the vote result Naran Singh to formulate amendments. is contrary to what the Bar believes in, as people do not read details. He appealed to Naran Singh to take

www.malaysianbar.org.my | 43 minutes 66th AGM of the Malaysian Bar | 10 Mar 2012

5.5 Motion no 5.5

“Motion on maintaining a just employment relationship, worker and trade union rights in Malaysia”, proposed by Charles Hector and seconded by Francis Pereira, dated 1 Mar 2012 Whereas: (1) There has been a withering away of the rights of workers and/or their unions in Malaysia over the past years, and the most recent of this is the employment relationship, where Malaysia is in the process of amending (or has amended) the Employment Act 1955 vide the Employment (Amendment) Bill 2011, the result of which would be the legalization of the ‘contractor for labour’, a third party, in an employment relationship which justly should be a two-party direct relationship between owner/operators of workplaces and their workers, who reasonably must be their direct employees.

(2) What the Malaysian government has done, earlier through policy and practice and now being legalized through the amendment of the Employment Act 1955, which was passed at the Dewan Rakyat on 6/10/2011 and the Senate on 22/12/2011, goes contrary also to international standards and principles concerning Decent Work and worker rights. Avoiding employment relationship was being done by various means, agreements and contracts, which have been criticized even by the International Labour Organisation (ILO). Sadly, Malaysia goes even further by legalizing evasion of employment relationships.

(3) Employment relationship in Malaysia, as also evident in our Employment Act, prior to this new amendment, was a 2-party relationship between employer and worker (employee) between whom there will be a contract of service, whereby ‘the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and (a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) the statutory bodyor local government authority, shall be deemed to be the employer’. Sadly, the Minister had the power to create exceptions to this general principle.

(4) The current amendments to the Employment Act 1955 now statutorily recognizes a new third party in the employment relationship, being the ‘contractor for labour’, who unlike Private Employment Agencies, continue to remain the employer of workers that they supply to the principal or owner of the workplace, and as such the said principal or owner of the workplace effectively can avoid becoming employer of the workers working for them, and hence all employer obligations.

(5) This practice of using workers of third parties, without the entry of an employment relationship and/or contract of service, even though there was no provision in law that specifically allowed this, started on or about 2005 with essentially migrant workers through what was known as ‘outsourcing agents’, but as of 2010, it was no more just migrant workers but also local workers including those from Sabah and Sarawak.

(6) This new reality causes discrimination amongst workers, with regard to wages and other benefits, including also the right to join existing unions and/or to benefit from Collective Agreements, being agreements between worker-employees and their employers — the principal or owners of the workplace.

44 | 2012/13 annual report (7) In some workplaces, the workers who still are employees of the principal or owners of the workplace is about 50% or less, the rest workers there being workers supplied to work by third parties, at a workplace. This results in an effective weakening of trade unions and their bargaining powers when it comes to collective agreements, including their struggle for better wages and work conditions. The law does not provide any restrictions as to the number of non-employees at a workplace, and as such this may lead to a situation where even all workers in workplaces may one day be no more employees of the owner or principal of the workplace.

(8) Given the reality, that the workplace and all workers therein is still under the effective control and supervision of the principal or owners of the workplace, matters related to work and work condition, so many workers at the workplace, now treated as not employees of the principal or owner of the workplace, is deprived the right that any worker must have to be able to fight for better working conditions and work-related rights. The third party suppliers really have no effective control or ability when it comes to improving working conditions and matters at the workplace.

(9) The reality today is also that these principals or owners of workplaces are getting workers from not one, but many different suppliers of workers (‘contractors for labour’), which again would result in further discrimination.

(10) The reality also is that a suppliers of workers (‘Contractors for Labour’) is supplying workers to many different workplaces, in many different sectors, and as such even if the workers (now considered) employees of these suppliers were to try to form a union, it is near impossible given this reality. They also cannot join existing regional or national trade unions in Malaysia, given the fact that in Malaysia, unions are registered based on sectors, and it will be difficult for these worker/employees of the third party to form or join existing unions, given also that the flexibility of the situation that can result in overnight changing of which sectoral unions that they can join. Effectively, these workers if they are employees of these suppliers have lost their basic freedom of association and the right to form and/or join trade unions. Prior to this any new employee of the workplace can easily form/join trade unions, irrespective of whether they are local or migrant workers.

(11) The Private Employment Agency, as provided for in the Private Employment Agencies Act 1971, does the service of finding workers for workplaces, and once the workers are supplied, these workers automatically are employees of the principal or owners of the said workplace, and the private employment agency is paid a statutorily fixed rate for their services. This is certainly a better practice, not detrimental to a just employment relationship and worker rights. All suppliers of workers must be private employment agencies, confined to the providing of service of supplying workers, and not be made into employers themselves of the workers after they have supplied them to the principal or owners of workplaces.

(12) It must be pointed out that the Employment Act 1955 amendments were proceeded with and passed in both houses of Parliament, despite the fact that there was strong opposition and protest from workers, trade unions including the Malaysian Trade Union Congress and the International Trade Union Confederation (ITUC), and civil society groups.

We hereby resolve: (1) That the Malaysian government immediately repeal the amendments to the Employment Act 1955, introduced vide Employment (Amendment) Bill 2011, and pending repeal not put into effect the said amendments.

www.malaysianbar.org.my | 45 minutes 66th AGM of the Malaysian Bar | 10 Mar 2012

(2) That the Malaysian government do the needful to maintain existing 2-party employment relationships between principals or owners of workplaces as employers, and workers that work in the said workplaces as employees of the said principals and owners.

(3) That the Malaysian government promotes and protect worker and trade union rights in Malaysia, and not permit any form or discrimination at the workplace or related to work amongst workers doing the same work and/or working at workplaces of principals or owners.

(4) The Malaysian Bar takes the stand that labour suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace.

(5) That the Malaysian Bar continues to struggle for the promotion and protection of worker and trade union rights in Malaysia, including for just employment relationship, basic living wages and freedom of association consistent with the Principles of Decent Work and other universally recognized standards and principles.

The Chairman invited Charles Hector Fernandez to labour” are two different things. He said that the move his motion. resolution stresses the importance of retaining the principle of direct employment relationship, and that Charles Hector Fernandez said that based on the the contractor for labour is merely one aspect of it. feedback he had received regarding his motion, he proposed the following amendments to the resolution: The Vice-President noted that the resolution sought to repeal all provisions regarding the employment (1) That the Malaysian government relationship with the contractor for labour, and to immediately repeal the amendments to create the same with the owner of the workplace. He the Employment Act 1955, introduced vide sought clarification on whether this was the aim of the Employment (Amendment) Bill 2011, with motion. regard to the employment relationship and the contractor for labour, and pending repeal Charles Hector Fernandez explained that he did not not put into effect the said amendments. want the contractor for labour to exist.

Charles Hector Fernandez said that the additional The Vice-President asked Charles Hector Fernandez phrase would make the resolution clearer in view of to explain the evil he wished to address. He said that numerous objections to several amendments to the being a contractor for labour is a free enterprise under Employment Act, and the fact that the motion focuses the present law, except that the owner of the workplace only on the employer-employee relationship and the is deemed in law to be the employer of the employee. contractor for labour. Charles Hector Fernandez said that the term “contractor The Vice-President proposed that the word “with” for labour”, as proposed by the Malaysian Government, replace “and” appearing after “employment would create something else. It would be acceptable if relationship”. an employment agent is created. This was the reason for his choice of the word “and”. Charles Hector Fernandez disagreed, on the ground that “employment relationship” and “contractor for

46 | 2012/13 annual report Low Beng Choo of the KL Bar proposed that the issue be Bar AGM that the death penalty should be taken up by the Industrial Law Committee, because the abolished, and bearing in mind the current motion went in-depth on certain provisions. public debate on the merits of the death penalty, calls upon the Government of Malaysia The Chairman said that this issue had been discussed to take immediate steps to abolish the death by BC two meetings ago and on the previous day. penalty in any legislation providing for it, and Anand Ponnudurai, Chairperson of the Industrial Law insofar as those awaiting execution, that the Committee, had participated in the deliberation and death penalty be remitted by executive action. had given his views, and BC had agreed to adopt the motion with amendments. Naran Singh agreed to Sulaiman Abdullah’s amendments. He urged BC to ensure that action be Andrew Khoo Chin Hock proposed that the resolution taken, otherwise he would return the following year be amended by repositioning the additional phrase as with a motion to propose a street demonstration. follows: Andrew Khoo Chin Hock gave his assurance to Naran That the Malaysian government immediately Singh that if he is re-appointed as Chairperson of HRC repeal the amendments to the Employment for the next term, this issue will be an ongoing project. Act 1955 with regard to the employment relationship and the contractor for labour, The motion, as amended, was put to a vote, and was introduced vide Employment (Amendment) unanimously carried. Bill 2011, and pending repeal not put into effect the said amendments. Item 6 of the agenda 6.1 General The motion, as amended, was put to a vote, and was unanimously carried. Naran Singh, in noting that several issues had been raised that morning, informed the House that the 5.6 Motion no 5.4 (continued) Perak Bar Committee has never convened a meeting for members to discuss issues of concern. As far as Naran Singh proposed an amendment to his motion, as he knows, the Perak Bar Committee holds its regular follows: meetings without seeking members’ views or feedback. The Perak Bar Chairman and Representative to BC also That the Malaysian Bar take immediate action do not report to members about matters discussed and to call upon the Government of Malaysia to decided upon at Council meetings, so members are left abolish the death penalty with immediate in the dark. He proposed that all State Bar Committees effect. should call a meeting of members in their states at least once a fortnight in order to convey BC’s decisions Sulaiman Abdullah said that he was not happy with to them, and seek their views. This would be a more the recital, but since a motion must have a recital, and effective way of keeping members updated. taking into account what Naran Singh had in mind, he proposed that the recital from paragraphs (1) to (6) be Mad Diah Endut, Perak Bar Representative to BC for removed, and the resolution be further amended to the new term, and former Chairman of the Perak Bar read: Committee during the previous two terms, conveyed the apologies of Vivekanandan Periasamy, the current That the Malaysian Bar, taking into cognisance Chairman, for his absence from the AGM, as he was away its earlier resolution at a previous Malaysian in India. He explained that the Perak Bar Committee

www.malaysianbar.org.my | 47 minutes 66th AGM of the Malaysian Bar | 10 Mar 2012

had invited members in the state to relate their penalty to speak up. He asked Members of the Bar to problems, but not much feedback had been received take the initiative to pressure various groups to speak over the previous two terms. Hence, it was not fair for up or send letters to the Minister. Naran Singh to comment that the Perak Bar did not do enough. Mad Diah Endut said that on occasions when 6.3 Vote of thanks he had met Naran Singh and when issues had been raised, such issues had been brought to the attention On behalf of the House, Sulaiman Abdullah recorded a of the Perak Bar Committee. He assured Naran Singh vote of thanks to the BC Secretariat for the excellent that he would convey the latter’s proposal, regarding work they rendered in support of the Malaysian Bar fortnightly meetings, to the Perak Bar Committee for its over the past year. He further recorded a vote of consideration. thanks to the Chairman for the able way in which he had conducted the AGM. Naran Singh acknowledged that Mad Diah Endut had called and met him. He reiterated his proposal that The Chairman reciprocated by thanking all Members for State Bar Committees should convene fortnightly having attended the meeting, and brought the meeting meetings with members who wish to be consulted on to a close. decisions, because all this while State Bar Committees had been making decisions on their own. The Chairman requested members of the incoming BC to stay on for the first meeting of the 2012/13 term. The Chairman said that since the general body has vested in State Bar Committees and BC the power to There being no other matters, the meeting was manage the affairs of the Bar, State Bar Committees adjourned at 3:40 pm. could obtain feedback from members either by cascading up towards decision-making, or bringing For the record, a total of 878 Members attended the information down to members after decision-making. meeting.

6.2 Death penalty Tony Woon Yeow Thong Secretary Charles Hector Fernandez said that the Minister of Malaysian Bar Law had recently asked people who oppose the death

48 | 2012/13 annual report Update Sheet

Matters arising from the 66th Annual General Meeting (“AGM”) held on 10 Mar 2012

Item Subject Update (1) Court-related issues

(a) General (a) Bar Council (“BC”) representatives met the Chief Justice (“CJ”) on 15 Feb 2013, and discussed the following matters:

(i) Car park at the Palace of Justice, Putrajaya; (ii) Subordinate Courts (Amendment) Act 2010 and status of implementation of BC’s recommendations; (iii) Feedback from BC regarding the performance of judges; (iv) Complaints against judges, and members of the Judicial and Legal Service; (v) Complaints by judges and members of the Judicial and Legal Service against Members of the Bar; (vi) Assessment of courts in the various states; (vii) Need for improvement in number, and quality, of written judgments; (viii) Use of mediators from Malaysian Mediation Centre; (ix) Use of presentation slides in court submissions; (x) Duty of court to provide litigants with transcripts of the recordings from the Court Recording and Transcription system; (xi) E-filing; (xii) Judicial temperament; (xiii) Summaries prepared by junior Registrars in the Court Of Appeal; and (xiv) Steps taken by BC to improve quality of the Bar.

(b) Counsel are not being given (b) BC has brought these matters to the attention of the CJ, President enough time to submit of the Court of Appeal, and the Chief Judge of Malaya, on a number in the Court of Appeal, of occasions. and judges deny counsel the right to make oral submissions

(c) Judges’ secretaries should (c) BC has raised this matter with the CJ and the Chief Judge of Malaya. be allowed to transcribe notes of evidence, as was the practice in the past

(d) Long queues at e-filing (d) BC is looking into this issue. service bureaus

www.malaysianbar.org.my | 49 minutes 66th AGM of the Malaysian Bar | 10 Mar 2012

Update Sheet

Item Subject Update (2) Conditional Fee Rules should BC is considering the Conditional Fee Rules and the explanatory notes apply to all areas of practice, received from Su Tiang Joo. except for criminal law and family law

(3) Forums are needed to educate Criminal Law Committee organised talks in Kuala Lumpur (10 Aug 2012), Members regarding amendments Selangor (28 Aug 2012), Penang (28 Aug 2012), Johore (1 Dec 2012) and to criminal laws, particularly in Terengganu (31 Jan 2013). Similar talks will be organised in Malacca and regard to plea bargaining Negeri Sembilan.

(4) Forged acknowledgment of BC issued four circulars to inform and update Members regarding this payment of stamp duty matter:

(i) Circular No 085/2012 dated 24 Apr 2012; (ii) Circular No 151/2012, dated 11 July 2012; (iii) Circular No 164/2012, dated 30 July 2012; and (iv) Circular No 179/2012, dated 14 Aug 2012.

BC will follow up with the Attorney General regarding the status of investigations against runners and syndicate members.

(5) BC should follow up on the Members were informed in Circular No 189/2012 dated 3 Sept 2012 proposed establishment of an regarding the setting up of the Environmental Court. Environmental Court The Environment and Climate Change Committee (“ECC”) is of the view that the structure and functions of the Environmental Court should be expanded. ECC is collaborating with the Kuala Lumpur Bar Committee’s Environmental Law Committee to prepare a memorandum proposing the establishment of a joint task force, comprising representatives from the Bar and the Bench, to look into this matter.

(6) Whether non-Muslim lawyers Syariah Law Committee considered this issue on 15 June 2012, and is are prohibited from advising of the view that non-Muslim lawyers can advise clients on all matters clients on aspects of Syariah except those that fall within the jurisdiction of the Syariah courts. Law in areas of practice such as conveyancing

(7) Follow-up actions taken in The BC Secretariat has prepared the compilation, but it is too voluminous respect of resolutions of the to be included in the 2012/13 Annual Report. Bar’s AGMs should be included in the Update Sheet of the 2012/13 Annual Report

50 | 2012/13 annual report Update Sheet

Item Subject Update (8) Update to Members regarding The Legal Profession (Amendment) Act 2012 was gazetted on 20 Sept progress of amendments to the 2012 but is not yet in force. It amends provisions relating to, inter alia, Legal Profession Act 1976 disciplinary matters. These amendments had been held back in the past so that they could be tabled at the same time as the amendments pertaining to liberalisation of the legal profession. At the Chief Judge of Malaya’s request, BC is currently reviewing a clause in it that provides for suspension of an order or decision of the Advocates and Solicitors Disciplinary Board for at least 30 days, to enable an aggrieved party to seek judicial review.

(9) “Motion regarding mandatory The motion, as amended, was put to a vote and was carried: 321 votes Continuing Professional in favour, 137 against, and nine abstentions. Development Scheme”, proposed by Dipendra Harshad The CPD Department was established in October 2012 to implement and Rai (Chairperson, Bar Council manage the Scheme. Many more courses are now available — some Professional Standards and of which are free of charge — to provide Members with valuable yet Development Committee), on affordable opportunities. In 2012, 110 courses were conducted, with a behalf of Bar Council, dated 27 total number of 7,146 registered attendees. Feb 2012 The Department is setting up an independent website dedicated to the Scheme, and collaborating with local and international training providers.

For more details, please refer to the report of the Professional Standards and Development Committee. (10) Motion regarding the Advocates The motion was put to a vote, but was not carried: 11 votes in favour, 91 and Solicitors Disciplinary Board, against, and 13 abstentions. jointly proposed by MS Murthi, Kumar Thangaraju, Sundaresan Krishnan and Thanalakshmi G, dated 1 Mar 2012

(11) Motion regarding the Advocates The motion was put to a vote, but was not carried: 17 votes in favour, 76 and Solicitors Disciplinary Board, against, and 11 abstentions. proposed by Naran Singh and jointly seconded by Pritam Singh Doal, GK Sritharan, T Gunaseelan and R Kengadharan, dated 28 Feb 2012

www.malaysianbar.org.my | 51 minutes 66th AGM of the Malaysian Bar | 10 Mar 2012

Update Sheet (12) Motion regarding the death The motion, as amended, was put to a vote, and was unanimously penalty, proposed by Naran Singh carried. and jointly seconded by Pritam Singh Doal, GK Sritharan, T The resolution was brought to the attention of the Prime Minister, Gunaseelan and R Kengadharan, Attorney General’s Chambers, and Ministry of Home Affairs, byletter dated 28 Feb 2012 dated 2 Apr 2012. The Human Rights Committee organised various activities in 2012 to raise awareness regarding the death penalty:

(i) Debate on the abolition of the death penalty in Malaysia (1 Mar 2012); (ii) Talk on the death penalty in Malaysia (5 Apr 2012); (iii) Screening of documentary entitled “Death in Dilemma: The Final Curtain” and discussion on the death penalty (28 Aug 2012); and (iv) Roadshow and pleadings competition on the death penalty (September to November 2012, culminating on 10 Dec 2012).

(13) “Motion on maintaining a just The motion, as amended, was put to a vote, and was unanimously employment relationship, carried. worker and trade union rights in Malaysia”, proposed by Charles The resolution was brought to the attention of the Prime Minister, Hector and seconded by Francis Attorney General’s Chambers, Ministry of Human Resources, and Pereira, dated 1 Mar 2012 Ministry of Home Affairs, by letter dated 2 Apr 2012.

Date: 28 Feb 2013

52 | 2012/13 annual report