Proposed amendments to the Legal Profession Act 1976 (LPA) and future for young lawyers — Khaizan Sharizad Ab Razak

JULY 25 — We write in response to the article by Kee Mohd Thariq, as published by the Malay Mail Online on July 19, 2016.

We regret Mr Kee’s unnecessary personal attacks against the Bar Council and its incumbent president, Mr Steven Thiru.

The Bar Council National Young Lawyers Committee (NYLC) is constrained to believe that his misconceptions — which pertain to the role/functions of the Malaysian Bar, its elections, and the CPD scheme — border on misinformation, and may mislead the public.

We present our response to correct his assertions/issues:

1.     The Bar has no interest in partisan politics: it upholds the Constitution, and has done so and continues to do so. The views that Mr Kee maintains of the Bar’s public perception are speculative, and in no small part due to the continued allegations of those such as Mr Kee himself.

2.     Mr Kee states that Mr Steven Thiru was making a “preposterous claim that the Bar Council will cease to function if the quorum for the Bar’s Annual General Meetings (AGMs) was hiked up from the current 500 to the more representative 25 per cent of the total membership of the Bar due to supposed inability to encourage the participation 4,000 or so members to attend such AGMs, thus severely hampering the annual business of the Malaysian Bar.” This reveals a lack of understanding of the history and the running of Bar AGMs. With the amendments making a required quorum of 4,000, the fear that for many years to come the AGM will lack quorum and therefore cannot be held, is not unfounded. With the AGM unable to be held, what would be the implications on financial accounts, election of Officer Bearers, the issuance of practising certificates, and other matters that relate very closely to the members of the profession? Therefore is saying the Malaysian Bar will cease to exist merely a fearmongering tactic or a possible eventuality?

3.     Mr Kee’s comment that “investors don’t usually give two hoots whether a Bar is independent or otherwise” is devoid of reality. Investors closely monitor adherence and compliance to due process before investing, as these relate closely to state economic/political stability and public trust in government. Lawyers, and the Bar, help public observance and appreciation of due process and promote the honesty of governments by holding them to account. The absence, or hampering, of a fully-functioning Bar leads to a dysfunctional democracy, where the law may be unduly fashioned to public disadvantage. Mr Kee’s statements thus do not seem to weigh the due diligence process conducted by investors.

4.     In relation to postal voting, the Malaysian Bar supported the abolition of postal votes when it came to the general election because of the way in which it is implemented in Malaysia. Rather than using postal votes to enable more people to participate in general elections, the Election Commission made the criteria for eligibility unduly narrow, and overly bureaucratic. Many Malaysians who wanted to vote in the general election by postal ballot faced continuous difficulties and challenges, which restricted instead of widened, the franchise. There was also deep mistrust surrounding postal votes in that there were legitimate suspicions that the veracity of postal votes had been compromised. However when it comes to the Malaysian Bar election, every member is automatically given a postal vote, thus permitting every member to participate in the electoral process should he/she want to. Instead of restricting voting to one day, members of the Malaysian Bar have one whole calendar month to return their postal ballots, thus maximising participation for all those who wish to take part in the electoral process. As such, there is no reason to abolish postal voting, and it is misleading to equate the two in one discourse.

5.     Secondly, by removing postal voting for the Bar Council elections, and with it the ability to vote for 12 national candidates in addition to the State Bar Chair and the State Bar Representative, a member will now have even LESS influence on the outcome of the elections. A member will now only be able to vote for 3 candidates to the Bar Council (all from the state level), instead of 14 (2 at state level and 12 at national level) under the present system. Therefore, for free and fair elections, the present system should be retained, whereby all members of the Malaysian Bar are able to vote in a nationwide election, which is only possible with postal votes, unless we implement a system of voting stations as per the general election, which clearly is a much more costly affair.

6.     Mr Kee wrongly suggests that the Bar Council disfavours its younger members. To this, and notwithstanding Mr Kee’s contentions, he would best be reminded of Section 46(A)(1)(a) of the LPA, which disqualified all members of the Bar of less than seven years’ standing from being a member of the Bar Council or the State Bar Committee. It was the young lawyers, together with the support from the senior members of the Bar, who fought for decades to have this provision repealed. Their position was supported and carried at the 52^nd Bar Council AGM in 1998; consequently, after years of raising this issue with the Government, the provision was deleted by Act A1269, with effect from 2 October 2006. Post-amendment, many young lawyers of merit and grit have since been voted in as members of the Bar Council as well as the state bar committees. Young lawyers are the vanguard of the Malaysian Bar and stand at every significant turn in its distinguished history, and will remain so.

7.     Mr Kee suggests that the recent proposed amendments to the LPA benefits the Bar and so too younger lawyers. We disagree. The amendments water down the representation of young lawyers, and implies that young lawyers may achieve office by designated quota, dispensing with merit or a passionate intent to serve. Instead of running for office purely on the basis of merit as now, there is to be an arbitrary division between those with less or more than 10 years’ practice. Further, states do not all have equal numbers of lawyers with less than 10 years’ practice, and the implementation of the amendment can be questioned in that regard.

8.     The Continuing Professional Development (CPD) scheme is not a unilateral decision by the Bar Council or Mr Steven Thiru. The motion was passed through a democratic vote and the majority (even if by a 1-vote majority) voted in favour of the scheme to bring it to life during the last Malaysian Bar AGM. All members of the Bar were aware of the AGM, for which due notice was given, and all members of the Bar had the right to attend and vote. If they chose not to do so, their right to not vote was equally respected because this is the democratic process of the Bar Council. Even when an individual member of the Bar feels personally aggrieved, there already exists a mechanism where the member can raise her/his concerns. Although those who came and voted on that day at the AGM were not all young lawyers, pursuant to the LPA any member of the Malaysian Bar can at any time requisition for an extraordinary general meeting to review the mandatory CPD Scheme. This also applies to any issue which were raised in the article. Mr Kee could have done either in relation to his earlier contentions, but has not.

9.     There are more than 60 per cent of the Malaysian Bar practitioners of less than seven years’ standing. The Bar Council has always supported the young lawyers whether at national level through the NYLC, or at various Young Lawyers Committee at the State Bar Committee level. The Malaysian Bar, through various sub-committees either at the national or state level, has continuously engaged with members on issues regarding the needs and treatment of pupils, requirements for admission to the Bar, and compulsory tests and courses before gaining admission to the Bar to assist and ensure high professional standards of lawyers called to the Malaysian Bar. NYLC welcomes the support from the Bar for continuing professional development courses, such as the mandatory ethics courses for pupils which reflects the efforts that the Bar is taking to ensure high professional standards, and will continue to do so for its members. Furthermore, Mr Kee is welcome to join and participate in any of the various committees under the Malaysian Bar and State Bars to provide suggestions and input to address the issues faced by members of the Bar.

10. The issues that Mr Kee cite, such as “the well-being of the people such as high fuel prices, high food prices and defending employees as well as consumer rights” are party political issues. These are the duties (or failings) of the people’s elected representatives and the Government, not the Bar, which under the LPA, is concerned with the administration of law and justice at large, and which it has always championed.

11. Mr Kee uses the phrase “independence of the Bar” liberally, without adequate appreciation. The Malaysian Bar must function independently without any external influence. Such influence includes, but is not limited to, executive interference. The law affirms this: Section 42 of the LPA charges the Bar with the duty to act without fear or favour with matters concerning administration of justice. A similar position was also affirmed by the United Nations Human Rights Council in 2015. Yet the Government attempts to foist its two (2) representatives upon the Bar Council, unelected as they are by the Bar’s members. This is a direct interference with the Bar’s independence.

12. We fail to see how the proposed amendments to the LPA essentially address the concerns raised by Mr Kee in his article or even assist young lawyers in the future. The Bar Council neither sought the amendments, nor have the members of the Bar resolved in favour of them. And since the amendments affect members directly, they must be discussed and debated upon by the members, more so the young lawyers whose future in the Bar will be set by it. The NYLC therefore stands against the recent proposed amendment to the LPA, and seeks all affected parties to oppose the reforms.

* Khaizan Sharizad Ab Razak is a lawyer and the chairperson of the Bar Council National Young Lawyers Committee (NYLC).

** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail Online.