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Clarification on Bar Council’s plan for junior lawyers

This is in response to Malaysiakini ’s article titled, ‘Bar Council’s plan for junior lawyers comes under fire’ of March 16, 2016

There are several key points raised in the article that require clarification:

The matter raised

(1) The proposed CPD motion is discriminatory.

The motion must be read holistically. This CPD scheme starts with 0-5 years lawyers until March 2018. At the AGM in March 2018, 0-5 year lawyers decide whether the scheme is to continue for them, and it will also be decided whether the scheme is to be extended to other parts or the whole Bar. The staggered implementation is to ensure the scheme is affordable to as many members of the Bar as possible within a manageable time period.

(2) The proposed CPD motion violates section 35 of the Legal Profession Act 1976 that provides that Members of the Bar shall have the same rights and privileges without differentiation. There is the suggestion that one section of the Bar will now be subjected to additional requirements in order to practice and cannot be said to have the same right and privilege.

Section 35 of the Legal Profession Act is encapsulated under the Part IV: Privileges of Advocates and Solicitors. The specific provision reads:

“(1) Any advocate and solicitor shall, subject to this Act and any other written law, have the exclusive right to appear and plead in all Courts of Justice in Malaysia according to the law in force in those Courts; and as between themselves shall have the same rights and privileges without differentiation.”

The provision deals with the right to appear and plead in courts in Malaysia, and is inapplicable to the implementation of the Bar’s CPD scheme.

The proposed CPD motion and the implementation will in no way impede or limit the ability of a Member of the Bar to appear in court.

Non-compliance with the scheme will not impact on the Members’ ability to continue in legal practice, and does not in any way deny existing rights and privileges to Members.

The scheme will start with a particular group and then extend to other groups, and is intended to eventually apply to the whole Bar.

(3) It is illegal for the Bar Council to make the training programme compulsory only for lawyers who have been in practice for five years of less, or those called to the Malaysian Bar from July 1, 2011, onwards. If CPD is to be implemented, it should be implemented to all Members of the Bar without discrimination at the same time.

The object and powers of the Bar in section 42(1) of the Legal Profession Act 1976 stipulate that the purpose of the Malaysian Bar shall be, inter alia,

(b) To maintain and improve the standards of conduct and learning of the legal profession in Malaysia;

(c) To facilitate the acquisition of legal knowledge by members of the legal profession and others; and

(e) To represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia.

Empowered to do all acts necessary

The Malaysian Bar is therefore empowered to do all acts necessary in support of these objects and powers, including work toward the implementation of a mandatory CPD scheme and the scheme therefore cannot be illegal.

This position is fortified by the recent judgment of the Federal Court in Bar Malaysia v Index Continent Sdn. Bhd. [2016] 2 CLJ 545 at para 34-35 where the Federal Court held: The Bar Council “is endowed with wide scope of powers for the purpose to regulate the betterment of the legal profession”.

The proposed CPD motion fulfills these requirements as:

(a) It will maintain and improve the standards of conduct and learning of the legal profession;

(b) It is in the public interest;

(c) It is not intended to be discriminatory and will apply to all Members of the Bar, in due course;

(d) It is focused on the continued self-regulation of the Bar, by the Bar and for the Bar.

(4) The proposed CPD motion violates Article 8(1) of the federal constitution, which states that all are equal before the law.

Article 8 (1) states:

“All persons are equal before the law and entitled to the equal protection of the law.”

The CPD scheme commences with a specific group because the Bar Council expects to provide financial assistance to these Members and pupils, who may face financial challenges and who may have difficulty allocating time for training. This assistance will aid these individuals to gain access to training conducted by Members of the Bar for Members of the Bar in selected training areas.

The Malaysian Bar will still continue conducting CPD programmes for the entire membership, and the scheme will eventually extend to the entire Bar.

The equality provision in Article 8(1) is not absolute. All it requires is that a person in one class be treated the same as another person in the same class (i.e all lawyers 0-5 years should be treated equally) and that there must be a rational relation or nexus to a policy or object to be achieved by a statute or statutory provision. The policy/object is to improve the knowledge and skills of this selected group based on available financial resources.

RICHARD WEE is chairperson, Professional Standards and Development Committee, Bar Council Malaysia.

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