Legal changes could jeopardize independence of Malaysian bar

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There is a grave concern over a number of the proposed amendments to the Malaysian Legal Profession Act 1976 (LPA), which certainly would have the effect of severely undermining the independence of the Malaysian bar and the Bar Council and, consequently, the independence of the legal profession generally in Malaysia. As such, the proposed amendments appear to be inconsistent with international legal principles.

The independence of the legal profession – and the bodies that represent it – is essential to ensuring the rule of law, access to justice and respect for human rights. As the United Nations Special Rapporteur on the Independence of Judges and Lawyers has stated, “Associations of lawyers are created for two main purposes: safeguarding the professional interests of lawyers and protecting and strengthening the integrity and independence of the legal profession.”

The UN Human Rights Council (UNHRC) had already reaffirmed that “judges, prosecutors and lawyers play a critical role in upholding human rights.” Furthermore, it recognizes the “importance of bar associations, professional associations of judges and prosecutors …working in defense of the principle of the independence of judges and lawyers.”

Furthermore, the UN Basic Principles on the Role of Lawyers reiterate the state’s duty to promote and respect the independence of the legal profession, as follows.

Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference … and shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

The Malaysian bar has existed for more than 70 years as an independent legal association whose aim is “to uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear or favor.”

It is governed by the LPA. The proposed amendments to that law would lead to drastic changes in the leadership of the Malaysian bar, the election process for its leaders, and the organization of its annual meetings.

First, the amendments would allow the government to appoint two members to sit on the Bar Council to “represent the government.” The 24th UN Basic Principle forcefully states: “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”

The proposed law would create an unjustified infringement upon the right of association of members of the legal profession as enshrined in the Malaysian constitution

International law only permits restrictions on the right to freedom of association, including the right of lawyers to form independent associations, where such restrictions serve a legitimate purpose.

There is no justification for mandating government appointment of two members of the Bar Council, the executive body of the Malaysian bar. Such appointments would inherently undermine the independence of the Bar Association. The proposed law would therefore create an unjustified infringement upon the right of association of members of the legal profession as enshrined in the Malaysian constitution, international law, and requirements of the UN Basic Principles.

Second, the amendments would allow the minister in charge of legal affairs in Malaysia to determine the electoral rules and regulations of the Malaysian bar. The UN Special Rapporteur has emphasized the need for legal professional associations to be independent from the executive branch.

The UN Basic Principles argue for preserve the right for legal professional associations to exercise their functions without external interference; giving control over electoral rules and regulations to a member of the executive branch in Malaysia would undoubtedly be seen as exerting improper influence over this self-governing body.

Finally, among the many changes the amendments propose with relation to elections and the governing processes of the Malaysian bar, the change in quorum for general meetings would decimate the bar’s ability to conduct necessary business.

Currently the quorum is 500 members for general meetings; the amendment proposal is to increase this to 25%, or approximately 4,000 members. This increase in quorum would impose undue burdens on the Malaysian bar and effectively prohibit it from having general meetings where resolutions and policies can be debated and passed. Such a change in quorum would render the bar unable to conduct its official duties.

These proposed amendments certainly undermine the independence of lawyers in Malaysia.

As the Malaysian bar celebrates its 70th anniversary as an independent bar this year, which is an epochal moment and an opportune time to reflect on the past, to cherish the present, and to prepare for the future, it is enjoined by the Legal Profession Act 1976 to ensure professionalism, to provide service to society and to uphold the rule of law. Throughout its sterling history, it has endeavored to discharge these multifaceted functions without fear or favor.

The Malaysian bar is unique, as it has a statutorily recognized the rule-of-law mandate in Section 42(1)(a) of the LPA – “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favor” – a mandate that it has collectively possessed since its inception in 1947. It is at the core of its societal role, which it has fervently guarded and vigilantly protected.

It has now become the clear duty of Malaysian lawyers to fervently protect without fear or favor the independence of the Malaysian bar.

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