Monday, 30 May 2016

Malaysia-Proposal to Amend the Legal Profession Act 1976 is a Severe Threat to the Independence of the Malaysian Bar

Proposal to Amend the Legal Profession Act 1976 is a Severe Threat to the Independence of the Malaysian Bar







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Circular No 127/2016
Dated 27 May 2016
To Members of the Malaysian Bar

Proposal to Amend the Legal Profession Act 1976 is a Severe Threat to the Independence of the Malaysian Bar
The Bar Council has been notified by the Attorney General's Chambers that the Government intends to pursue drastic amendments to the Legal Profession Act 1976 ("LPA").  The proposed amendments are scheduled to be tabled in the Dewan Rakyat during the next Parliamentary session from 17 October to 24 November 2016.

We understand that the key features of the proposed amendments are as follows:
(1) Two Members of the Bar would be appointed — by the Minister in charge of legal affairs — as members of the Bar Council, for the purpose of representing the Government.  However, these two members would not be eligible to contest any position as Office Bearer of the Malaysian Bar (ie President, Vice-President, Secretary or Treasurer).
(2) The quorum requirement for general meetings (ie Annual General Meeting and any Extraordinary General Meeting) of the Malaysian Bar would be increased from 500 Members to 25% of the membership of the Malaysian Bar or 4,000 Members, whichever is less.  There are currently just under 17,000 Members of the Bar.
The quorum requirement for general meetings of each State Bar would also be increased, from 5% to 25% of its membership.
(3) The number of members of the Bar Council would be increased from the current 38 members, to 40 members.
(4) Annual election of Bar Council
(a) The annual election by postal ballot — currently for 12 members of the Bar Council — by Members of the Malaysian Bar would be abolished.
(b) Instead, the election would be conducted at the State Bar level once every two years.
Three members from each State Bar — the Chairmen of the State Bar Committees, and two State Bar Representatives — would be elected directly to the Bar Council by secret ballot at the State Bar's Annual General Meeting.  One of the State Bar Representatives must be a member with more than 10 years in practice, and the other must have less than 10 years in practice.  As there are 12 State Bars, this process would result in the election of 12 State Bar Committee Chairmen and 24 State Bar Representatives as members of the Bar Council, totalling 36 members.  

The remaining four members of the Bar Council would consist of the immediate past President and immediate past Vice-President of the Bar, and the two Members of the Bar appointed by the Minister in charge of legal affairs to represent the Government.
(5) Election of Officer Bearers
(a) The annual election of the Officer Bearers of the Malaysian Bar — conducted by secret ballot at the first Bar Council meeting of each term, held at the conclusion of the Annual General Meeting of the Bar — by members of the Bar Council would be abolished. 
(b) Instead, the Office Bearers would be elected directly by Members of the Bar, at the Annual General Meeting of the Bar or at the premises of the State Bar Committees.
Only the 24 members elected as State Bar Representatives at the annual general meetings of the State Bars are eligible to be elected as Office Bearers.  The immediate past President, immediate past Vice-President, and 12 Chairmen of the State Bar Committees are expressly precluded from contesting any Office Bearer position.
(6) The Office Bearers of the Bar and the members of the Bar Council would serve for a fixed term of two years, instead of the current one-year term.
(7) The Minister in charge of legal affairs would be empowered to make rules and regulations in respect of the conduct of the elections to the Bar Council and of the Office Bearers of the Bar.
The Bar Council has neither sought these proposed amendments, nor has there been any resolution by Members of the Malaysian Bar for these amendments.

In its wide sweep, the proposed amendments pose a serious threat to the independence of the Malaysian Bar, and are an unwarranted interference into the self-regulation and internal management of the Malaysian Bar.  There is presently no cogent or justifiable basis for these proposed amendments, and its underlying objective is unclear.  It has been observed that "[t]he independence of the Bar from the state in all of its pervasive manifestations is one of the hallmarks of a free society." [1]

The Bar Council has expressed grave reservations to the proposed amendments.  We have submitted a preliminary memorandum to the Attorney General's Chambers, setting out our concerns.  We have also informed the Attorney General's Chambers that we intend to consult Members of the Bar, and to submit a further memorandum.

In this regard, we have begun consulting the State Bar Committees and the members of State Bars on the proposed amendments.  The first consultative briefing was conducted in Malacca on 26 May 2016, and the next one will be conducted in Kelantan on 29 May 2016.  

The Bar Council is also formulating a broad-based plan of action to address the proposed amendments.  We will notify Members as and when there are developments.

Thank you. 

Steven Thiru
President
Malaysian Bar
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[1] Canada (Attorney General) v Law Society of British Columbia [1982] 2 SCR 307 at 335, 137 DLR (3d).

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