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Saturday, March 19, 2016

DAP politician criticised "Busybody" Council [Up-dated]


Critics are streaming endlessly at Bar Council for their intention to seek judicial review and to pass a motion to demand the resignation of Attorney General, Tan Sri Mohamed Apandi Ali.

One statement from a DAP state assemblyman and lawyer, RSN Rayer caught many by surprise. He criticised Bar Council's action.

Malaysiakini reported below:
Malaysian Bar ‘tainted’ by motion at AGM to remove AG

18 Mar 2016, PM 4:43

A Penang DAP backbencher said the Malaysian Bar has been “tainted” by its actions against attorney-general (AG) Mohamed Apandi Ali and his decision not to press charges against Prime Minister Najib Razak.

Seri Delima assemblyperson RSN Rayer is referring to the Bar’s plan to table a motion to seek Apandi’s removal at its AGM and the application for judicial review to challenge the AG’s decision not to prefer charges against Najib in relation to the RM2.6 billion donation.

Rayer, who is also a lawyer, said he personally felt the two issues have tainted the position of the Bar as a professional regulatory body for advocates and solicitors in Malaysia into a partisan organisation which is pro-opposition and anti-government.

“The Bar Council is urged to withdraw this action for a judicial review as it will not meet the legal pre-requisites as the Bar Council is not aggrieved by this decision of the attorney-general who decided not to prefer charges against the Prime Minister.

“It seems to me that this action of the (Malaysian) Bar Council has drawn wide criticism as being a busybody and further fuelled speculation that the Bar is now very pro-opposition and anti-government, although I personally do not subscribe to this misconception as I think the Bar still upholds law and justice in this country,” he said in a statement today.

The Malaysian Bar is holding its AGM in Kuala Lumpur tomorrow.

Rayer said Apandi Ali is the Attorney General and Article 145 of the Federal Constitution gives him the power to decide on all matters related to prosecution.

He added that moving a motion to call for his resignation or removal at the Bar AGM may not be the legally correct thing to do.

“It is wrong for the Bar Council to propose and debate a motion calling for the removal of the newly appointed AG when it is legally and constitutionally clear that the appointment of the AG is the prerogative of the Agong on the advice of the Prime Minister.

“I urge the Bar Council to abort debating this motion because the Bar cannot be seen to be doing something for the sake of doing something, although it may not have any legal impact lest we want to be the laughing stock of the entire nation,” he added.

https://m.malaysiakini.com/news/334353
 Facebooker and former DPP Tun Maharezza wrote below:
Right of AG

A. perkara 143/5 give the AG right to resign, and the right is absolute for the AG to decide for himself without having to do it for others demand.

B. no other entity can use the 143/5 right for AG to apply pressure the AG to resign.

C. the 143/5 wasnt meant for other parties than the AG himself

Other parties cannot and must not use 143/5 as a reason to demand the AG resignation.

D. whoever use any fed cons law for the ag and ydp agong for their interest are deemed to insult the ydp agong and challenge the fed cons.

145/3 clearly a prerogative privillage granted for the ag himself and not for other than him.

E. 143/5 is an absolute right of the ag , no one should use the right  to demand for his resignation.

TMX
Many more reports:
http://m.themalaymailonline.com/what-you-think/article/malaysian-bars-bid-to-seek-removal-of-ag-an-exercise-in-futility-kamarul-za
In the meanwhile, Bar Council have viral the following to its members:
Dear fellow lawyers,

There has been much discussion concerning the Motion on the Attorney General that will be discussed in the upcoming Malaysian Bar AGM. [You can view the full motion in the Malaysian Bar website..]

Relevant facts:-

1 - The Motion dated 8/3/2016, was received by the Bar on 9/3/2016.
2 - We did not know that the Malaysian Bar was going to file a case regarding the Attorney General, which was done on 15/3/2016 > I personally do not understand why it was done then, 4 days before our AGM, and having note that a Motion existed. Time bar for filing a Judicial Review is 3 months, the AG's decision was on 26/1/2016 - in short, it could very easily been filed after the AGM.

SUBJUDICE - Well, in a recent Malaysian case, Syarikat Bekalan Air Selangor Sdn Bhd V. Fadha Nur Ahmad Kamar & Anor, YA, Mohamad Ariff Yusof J[2012] 6 CLJ 93, this very question was considered... It is NOT subjudice, either was Freedom of Expression, Opinion...takes precedence of matters of public interest, and/or public concern.

'..matter of general public interest of this kind is not to be stifled merely because there is litigation pending arising out of the particular facts to which general principles discussed would be applicable. If the arousing of public opinion by this kind of discussion has the indirect effect of bringing pressure to bear on a particular litigant to abandon or settle a pending action, this must be borne because of the greater public interest in upholding freedom of discussion on matters of general public concern...."

Hence, this motion on the AG, which is really is looking at a much broader reforms that are needed...taking also into consideration the relevant duties of the AG, as provided in the Federal Constitution, and noting also 'competing' responsibilities exist. How can an AG prosecute, when he also acts as advisor of the investigated/accused > which role is more important? A choice too will make him 'guilty' of not performing his other role properly?

The motion deals with the INDEPENDENCE of the AG and prosecutors - suggesting that he should not be getting monetary gain from other sources, and/or holding positions of Directorship in legal entities (Our AG is Director of Lembaga Tabung Haji??).

We have, in the past deliberated and voiced out about the Judiciary, Judicial and Legal Officers, Police, etc - and, now it is our duty to consider AG/Public Prosecutor and Prosecutors?

Is Appandi Ali personally guilty of any wrongdoing? Well, he was appointed by the Yang Di Pertuan Agung on the advise of the Prime Minister - and we know that the King has little choice but to listen to the PM.

Note also Art. 143(2) 

(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet,...

Well, it could be said that all (if not most of what he did) was what was required of him pursuant t0 Art 143(2)...but then, we need to look at Art 143(3) being his prosecutorial powers...

The call for Apandi Ali to resign, as such is not for any wrongdoing per se, but rather for the good of Malaysia, public perception, etc.. [We did not call for the Yang DiPertuan Agung to remove him, or for the PM to advise the YDP Agung to remove Apandi Ali...]

Note Article 143(5) which states, amongst others, '...the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office...', as such, he can himself resign...and this is what we are calling him to consider and do...

A Bernama Report dated 15/3/2015 -
"berkata cadangan Badan Peguam Malaysia meminta Tan Sri Mohamed Apandi Ali meletak jawatan sebagai Peguam Negara samalah seperti mencabar prerogatif diraja Yang di-Pertuan Agong."

It is certainly not a challenge of the royal prerogative of the YDP Agung as the right for Apandi Ali to himself resign is provided for in our Federal
Looks to be more political arguments than legal.

Heard some Muslim lawyers against Bar Council fell for their argument and buy-in to the psychological argument and shallow political game without full knowledge and understanding on the reasons and details behind AG's ad rejection of MACC's IP. [Read previous posting on MACC here].

If they are too stupid to fell for it, are they worth our support now?

In the meantime, some lawyers should suggest that Bar Council re-register as political party and have different NGO or a Law Academy as the professional body for lawyers.

------------------

Update 10:00 PM

The Bar Council 70th AGM was expected to be a 'bar fight' was over more than 6 hours ago but not much news reported. The first motion which is one of the two attention attracting controversial motion, did not go down well.

The Malay Mail Online reported:
Motion on mandatory training for young lawyers passes by one vote, no recount

BY BOO SU-LYN

Saturday March 19, 2016 05:39 PM GMT+8

UPDATED:
March 19, 2016 09:12 PM GMT+8
Steven Thiru addressing the 70th annual general meeting of the Malaysian Bar at the Renaissance Kuala Lumpur Hotel, March 19, 2016. — Picture by Saw Siow Feng
KUALA LUMPUR, March 19 ― The Bar Council managed to push through by a single vote its controversial motion at the Malaysian Bar's annual general meeting (AGM) today that makes continuing professional development (CPD) compulsory for junior lawyers.

The motion was approved by 295 votes in favour versus 294 against, with sources telling Malay Mail Online that a recount was not conducted.

“President should call for recount,” said one source from the AGM.

The Malaysian Bar president told Malay Mail Online later that he did not agree to a recount.

In the press conference after the AGM, Steven explained that there was no provision for a recount and that it was also “not possible” to do so as many members had left the hall right after the voting and could not be recalled.

“But one vote in the Malaysian Bar is still a vote of the Malaysian Bar, but — and I want to be very clear about this — that does not mean that the concerns expressed by others would not be taken into account,” he told reporters here.

The Bar Council motion proposed that the CPD scheme take effect for a 24-month cycle from July 1 this year till June 30, 2018, applying to lawyers who were issued their first practising certificate on or after July 1, 2011, as well as pupils who begin their pupillage on or after this July 1.

Lawyers are required to obtain at least 16 CPD points per 24-month CPD cycle, while pupils must get a total of eight CPD points, with non-compliance punishable by fines of between RM100 and RM500.

Lawyers told Malay Mail Online recently that the proposed CPD scheme is discriminatory as it only applied to lawyers who have been in practice for five years or less.

Steven today stressed that the CPD scheme did not exclude segments of the Bar, as it will be rolled out in stages to encompass different age groups.

He also pointed out that in the first cycle starting July, older members of the Bar would still have to be involved as trainers under the CPD scheme.

“When (they) say members who are 30 years and above are excluded, they are not, because it is the members 30 years and above that contribute in terms of the lectures that are run, so they are still part of the scheme,” he said.

“It’s a one Bar scheme that is going to be implemented in stages. It is not for a particular segment of the Bar.”
It was heard to be a heated debate and substantial number of members left the meeting. Does it make the subsequent motion passed relevant?

The political script on AG went according to plan.

The motion to call for his resignation was passed. MMO report can be found here. FMT here. One source claimed 700 and another source claimed 744 voted for the motion.

The social media was circulating the membership of Bar Council of 16,535. It implies only 4.45% of members are for the motion. Hardly significant but purely political. 

Steven Thiru was reportedly defensive and diversionary as he rejected the "busybody' label. The judicial review will continue to proceed and the motion serve to endorse their political action. However, it is not only UMNO lawyer's that labelled so, but also a DAP lawyer.

But, what is the implication of the 1-vote majority on motion for the CPD on Bar Council? Knowing lawyers and their adversarial nature, it may not be the end.

5 comments:

Anonymous said...

What do you call a devious bunch of pariahs endlessly bickering and effectively the nation's biggest scumbags?

Answer : BAR COUNCIL.

Anonymous said...

Peguam tu berkhidmat dimahkamah.
Dah sampai masanya pihak mahkamah lah yg mengiktiraf mana-mana pelajar lulusan undang-undang menjadi peguam. Mungkin dengan kertas-kertas peperiksaan copentency oleh ILKAP.

Bar Council dah jadi terlalu political.

Pendapat seorang ayah yg anak berkelulusan undang-undang IPTA tapi BC tak iktiraf.

Anonymous said...

®®®®
Ada yang tak berapa faham tugas AG perihal tindakan Majlis Peguam dan bertanya cara sendirian..

Saya cuba terang sedikit manfaat kawan2 konsepnya.

Bar Council is an independent body of lawyers. They can make whatever decision and pass whatever resolutions.

They have no locus standi therefore need support and mandate from members to lend credibility fr them to seek judicial review. Hanya alasan utk menyebok.

However, the integrity of the AG and his office cannot be questioned as per the relevant provision of current and existing laws Article 145 (3) of the Constitution read with 376 of the CPC. The AG makes decision based on facts and evidence furnished.

His power to prosecute is unfettered (tak boleh disoal). Bunyi macam keras dan zalim tapi sebenarnya sangat perlu. AG does not make decisions to play to any public gallery or interest groups.

An AG can make 3 decisions based on any investigation ie. To prosecute, NFA (no further action) or to instruct fr further investigation (in this case to MACC). Walaupun NFA kalau ada evidence baru yg kredibel, masih boleh dikemukakan. Ada surat kabar yg nakal laporkan AG umum case closed. Arahan ini tidak ujud.

AG tidak bertindak seorang. Dia diapit oleh dua pegawai terkanan timbalan pendakwaraya Tun Majid (yg tiada tolok tanding credibility dan amanah anak bangsawan Perak ini) dan solicitor general. Dibawah mereka kes ditelaah oleh berpuluh manusia dgn latar pendidikan undang2.

So, if Bar Council thinks there are evidence to prosecute, they should submit those to MACC. Otherwise, they shud know that an action to question the powers of the AG is an exercise in futility

Dato Latt Shariman

Anonymous said...

Usul Majlis Peguam Mendesak Peguam Negara Meletak Jawatan

1.Usul Majlis Peguam utk peguam negara meletak jwtn telah hanya disokong oleh 740 undi shj drpd 16 ribu ahli malaysian bar.

Usul itu tdk mendapat sambutan dan tdk pun mewakili 1/3 ahli majlis itu.

Usul tersebut dilihat mencabar perlembagaan persekutuan dan satu usul yg tdk memenuhi kehendak perlembagaan spt mana pendirian parlimen yg menolak usul yg sama drpd pembangkang minggu lalu di sesi parlimen.

2.Tindakan Majlis Peguam membuat usul tersebut bersifat satu PERBUATAN MERAMPAS HAK DAN KUASA UNDG UNDG YDP AGONG dan MENCABAR DAN MENGHINA PERLEMBAGAAN PERSEKUTUAN.

Ia kerana ,

A.Perkara 130 Perlembagaan Persekutuan mewartakan adalah menjadi HAK YDP AGONG UTK MERUJUK PERKARA BERBANGKIT BERKAITAN PERLEMBAGAAN PERSEKUTUAN DRPD MAHKAMAH PERSEKUTUAN DAN MENJADI TANGGUNGJWB MAHKAMAH PERSEKUTUAN UTK MEMBUAT PENDIRIAN TTG PERKARA ITU DN IANYA HARUS DILAKUKAN DI MAHKAMAH TERBUKA.

B.Perkara 145 / 6 perlembagaan persekutuan DGN JELAS WARTAKAN ,

PEGUAM NEGARA TDK BOLEH DIPECAT DAN PEMECATAN PEGUAM NEGARA HARUS DIBUAT MENGIKUT TATACARA SPT MANA PEMECATAN HAKIM MAHKAMAH PERSEKUTUAN SPT MANA IA DIPERUNTUKAN DIBWH PERKARA 125 /3 PERLEMABAGAN PERSEKUTUAN.

Peguam Negara juga hendaklah memegang jwtn itu spt mana perlembagaan ini menetapkan.

C.Perkara 145 / 5

Mewartakan HAK MELETAK JWTN ADALAH HAK MUTLAK PEGUAM NEGARA DAN IA BUKAN HAK AWAM DN HAK PIHAK LAIN.

D.Perkara 145 / 3 pula memberikan kuasa kpd peguam negara utk menentukan prosiding sesuatu kes mengikut budi bicaranya dan ianya bersifat mutlak.

E.Perkara 4 perlembagaan persekutuan mewartakan UNDG UNDG PERLEMBAGAAN PERSEKUTUAN ADALAH UNDG UNDG UTAMA NEGARA DN TDK ADA UNDG UNDG LAIN MENGATASI UNDG UNDG INI.

MAKA ITU , TDK ADA MAHKAMAH BERKUASA UTK MENCABAR MANA MANA PERUNTUKAN UNDG UNDG PERLEMBAGAAN PERSEKUTUAN.

3.Tindkan usul majlis peguam itu bertujuan utk memohon semakan kehakiman keatas tindakan peguam negara menolak pendakwaaan keatas kes najib razak yg dibuat diatas kuasa perkara 145 /3 perlembagaan persekutuan dan mendesak peguam negara meletak jwtn TELAH SECARA LANGSUNG MENCABAR

A. KEDAULATAN PERLEMBAGAAN PERSEKUTUAN

B.MENCABAR KEDAUALATAN HAK DAN KUASA UNDG UNDG YDP AGONG

C.MENCABAR KEDAULATAN UNDG UNDG NEGARA

MAJLIS PEGUAM TELAH MELAKUKAN JENAYAH ,

A.TREASON

KERANA CUBA MERAMPAS KUASA YDP AGONG DAN PEGUAM NEGARA YG DIWARTAKAN OLEH PERLEMBAGAAN PERSEKUTUAN.

B.JENAYAH SEKSYEN 121 B AKTA SOSMA KERANA MENGUGAT DAN MENDATANGKAN KEROSAKAN KPD DEMOKRASI PARLIMEN.

TMX

Anonymous said...

Gerakan questions Bar Council’s approved motion calling for AG’s resignation

Kohilan: Bar Council should not burn bridges, important to engage with AG



Press statement by

Gerakan Vice President

Datuk A. Kohilan Pillay



22 March 2016



Gerakan Vice President, Datuk A. Kohilan Pillay expressed his disappointment with the members of Malaysian Bar who voted through a motion calling on Tan Sri Mohd Apandi Ali to resign as Attorney-General (AG) at its annual general meeting on last Saturday (19 March). Kohilan said it was appalling that the Malaysian Bar and the Bar Council has decided to engage in overtly political stunts and failed to heed the advice of various parties to engage the Attorney General.



Kohilan criticized the approved motion which he believed was politically motivated and lapsed beyond the statutory role of Bar Council as stated in the Legal Profession Act 1976. He asserted that the administration of justice in Malaysia relies on the good relationship between the Attorney General’s Chambers and Bar Council, and by poisoning this relationship, the Bar Council has damaged the administration of justice. He criticised Bar Council’s action of burning the bridges despite the available channels and options to seek for formal explanation from AG and to do so in good faith.



“Given the fact that Bar Council has continues to act like a fourth party of Pakatan Harapan, the time has come for the government to consult lawyers, other legal organisations and interest groups to consider the formation of an alternative to the Bar Council for lawyers who disagree with the way the Bar Council has conducted itself and the overreach of its statutory obligation,” suggested Kohilan.

Kohilan added, "I am certain the AG made a decision with regards to the political donation to the Prime Minister with his constitutional obligations in mind and further gave a detailed explanation to the same. Whilst not everyone agrees with the decision but it has to be accepted. The Bar Council should not abuse its statutory powers."

Kohilan said it is worth studying the Singapore model where practicing certificate for lawyers is issued by the Registrar of the Supreme Court instead of their equivalent to the Bar Council. He asserted that it is not in best interest of the country’s legal system and law fraternity to allow the infiltration of partisan politicking into Bar Council.

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