By Roger Chin
KOTA KINABALU: The Sabah Law Society (SLS) became a statutory bar on July 2017 upon the coming into force of the Advocates Ordinance (Sabah) (Amendment) Act 2016 which amended the Advocates Ordinance of Sabah (the Ordinance). In the four years that SLS has been established, it became all too apparent that the Ordinance required enhancements.
On 28 October 2021, a Bill described as the Advocates Ordinance (Sabah) (Amendment) Act 2021 (the Bill) was tabled at the Dewan Rakyat by the Minister in the Prime Minister’s Department in Charge of Legal Affairs, Datuk Seri Wan Junaidi. The debate over the Bill continued and was subsequently passed by the Dewan Rakyat on the same day. The Bill seeks miscellaneous amendments to update and streamline the Ordinance to improve the legislation to become more effective and efficient in controlling and regulating the practice of lawyers in Sabah.
The present provisions dealing with disciplinary matters are both cumbersome and time-consuming. As a result, many disciplinary cases have not been satisfactorily dealt with swiftly.
Chief amongst the amendments under the Bill is to the rules regulating the Disciplinary Board which deals with disciplinary proceedings against errant lawyers. With the modifications, the disciplinary process will be more efficient to investigate and decide on public complaints. A conclusion whether to strike off the roll, suspend or fine a lawyer over ethical or behavioural disputes will be able to be able to be arrived at expeditiously and this will help the public who can be reassured by tighter regulations.
Amongst the amendments are:
1. Empowering the Disciplinary Board to dismiss summarily any complaint which has no merit or is frivolous or vexatious, and to provide that if the complaint has merit the Disciplinary Board shall proceed to hear the complaint.
2. New provision to empower the Disciplinary Board to award costs to be paid by the complainant or by lawyer concerned in such manner as the Board may deem fit.
3. Removing the compulsory presence of the Chairman and the President of Law Society to form the quorum as this is often difficult to achieve.
4. Providing that in the event of the disqualification or absence of the alternate of the President of the Law Society, the Board may elect one of its members to preside at the meeting of the Board.
5. Empowering the Disciplinary Board to sit in two or more panels provided each panel shall have sufficient quorum so as to speed up the hearing of complaints.
Another amendment sought is the extension of the ability of SLS to not only operate bank accounts of deceased lawyer’s clients and to allow SLS to take possession of the property of a lawyer who has been declared bankrupt or is a lunatic etc. in accordance with the provision in the Second Schedule of the Ordinance but to also include a sole proprietor lawyer who is incapacitated due to illness or any other cause. This would obviously be beneficial to clients and lawyers.
Now, as a result of the World Trade Organisation requirements as specified under the General Agreement of Trade and Services and ASEAN Framework Agreement on Services, the Federal Cabinet was committed to provide for the liberalisation of legal services. The Legal Profession Act 1976 was amended and came into force on 23 June 2014 to introduce provisions to provide for liberalisation of legal practice in Malaysia with the aim to develop Malaysia into an international Islamic hub and to expand the work, expertise and specialisation of the legal profession in Malaysia.
Since the Legal Profession Act 1976 does not apply to Sabah, similar provisions needed to be introduced into the Ordinance so as to give effect to Malaysia’s liberalisation obligations.
So, back in 2016 and pursuant to the earlier Advocates Ordinance (Sabah) (Amendment) Act 2016 the Ordinance was amended to provide for liberalisation of legal practice in Sabah by the insertion of Section 23 in line with the amendments made to the Legal Profession Act 1976 (which applies to Peninsular Malaysia only).
Item 4 of Annex A to the Inter-Governmental Committee Report (“IGC”) (which contains the Legislative Lists, Administrative Arrangements and Assurances) deals with:
Civil and Criminal Law and procedure and the administration of Justice including, inter alia, (a) Constitution and administration of Justice; (b) Jurisdiction and powers of all such Courts; (c) Remuneration and other privileges of the judges and officers presiding over such courts; and (d) Persons entitled to practise before such Courts. In respect of item (d), there is an assurance that: “Restriction on the lines of the existing Borneo legislation should be continued, so that practice at the local Bar would, subject to certain exceptions be restricted to resident advocates, until otherwise agreed by the Borneo Legislatures.
Arising from the above assurance in item 4(d) of Annex A to the IGC, it is provided in section 63 of the Malaysia Act as follows:
(1) In so far as any provision made by or under an Act of Parliament, by removing or altering a residence qualification, confers a right to practise before a court in the Borneo States or either of them on persons not previously having the right, that provision shall not come into operation until adopted in the States or State in question by an enactment of the Legislature.
(2) This Article shall apply to the right to practise before the Federal Court when sitting in the Borneo States and entertaining proceedings on appeal from the High Court in Borneo or a judge thereof or proceedings under Clause (2) of Article 128 for the determination of a question which has arisen in proceedings before the High Court in Borneo or a subordinate court in a Borneo State.
Subsequently, this provision in the Malaysia Agreement was incorporated into the Federal Constitution as Article 161B.
In line with the protection given to Sabah lawyers under this Article, Section 23 of the Ordinance dealing with foreign lawyers in Sabah will only come into operation on a date to be appointed after the same has been adopted in the State of Sabah by an Enactment of the Legislature of the State, that is, when and if Sabah is ready for liberalisation.
Liberalisation will only allow foreign firms to practise in Sabah in permitted practice areas as determined by SLS through international partnerships, qualified foreign firms or registered foreign lawyers working in local firm subject to certain conditions and restrictions and upon the granting of a licence by SLS as recommended by selection committee of which the State-Attorney General and the President of SLS are Co-Chairmen. This will not infringe upon domestic practice as it is only “foreign law” that such firms will be allowed to practice.
SLS stresses that it has and will always look out for the best interest of the Sabah Bar and only takes positions which solidify the stand of allowing only residents of Sabah and those with clear Sabah connections as defined in the Ordinance to practice in the state. Certainly, amendments in both the Advocates Ordinance (Sabah) (Amendment) Act 2016 and the Advocates Ordinance (Sabah) (Amendment) Act 2021 were brought to the attention of members and duly passed at Annual General as well as Extraordinary Meetings.
It must be clarified that the amendment sought for Section 23 in the Bill merely enables the provisions on liberalisation of legal practice to be brought into force in Sabah and FT Labuan on different dates. This is to cater for the possible need to allow foreign lawyers into Labuan to help realise the Malaysian Government’s objective of turning Labuan into an offshore financial centre.
One more important amendment under the Bill is the provision for the method of voting for the election of members of Executive Committee including empowering the Law Society to make rules to provide for and to regulate voting by postal ballot. This will go a long way to ensure every SLS member will have a voice regardless of where the member may be and whether or not that member is able to attend a General Meeting physically.
Other amendments include those aimed at the better functioning of the Executive Committee of SLS such as:
1. Increasing the number of committee members of the Executive Committee from six to eight in view of the increasing volume of work.
2. Providing for election of members of Executive Committee once in two years or biennially instead of annually.
The passing the Bill maintains autonomy for Sabah’s legal industry, timely when the state has been pushing for more devolution of powers the amendments will grant the body greater powers to regulate the practice with more provisions.
SLS is extremely grateful and deeply appreciative of the bipartisan support received in the passing of this Bill before the Dewan Rakyat and especially to the various stakeholders that have supported the passage of this Bill namely, the Sabah Federal Ministers, the Federal Attorney General Chambers, the Minister in charge of Legal Affairs, the Sabah State Attorney General Chambers, the Sabah State Cabinet and the Members of Parliament from Sabah.
Sabah Law Society