END OF TERM REPORT OF PERAK BAR REPRESENTATIVE TO THE BAR COUNCIL

Dear Members,

A very Happy New Year to all of you.

The current economic situation has considerably dampened the mood but like all previous downturns, I am certain we shall all not only weather it but come out more resilient.

There have been a lot of activities at the Bar Council and on the National level which you would have read in the papers. I am just highlighting some of the matters that would be of interest :-

1. Combined Rules of Court

The Rules of the High Court 1980 and the Subordinate Courts Rules 1980 are in the process of being revamped whereby they would be replaced by Combined Rules of the Court. This is based on the English Civil Procedure Rules 1999 with modifications to suit our local requirements. Both the Bar Council and the Judiciary are keen that the Rules be finalised and implemented this year.
I was assigned to give my input in respect of the following Parts:-

Part 47 - Probate & Administration (Order 71 & Order 72 RHC 1980);

Part 65 - Inheritance (Family Provisions) Act 1971 (Order 86 RHC
1980); and

Part 44 - Rateable Distribution (Order 51A RHC 1980)

and have submitted my comments on the same. The Task Force for the Combined Rules of the Court is headed by Dato’ Cecil Abraham who has done a considerable amount of work on this.


2. Mediation

Puan Hendon Mohamed has reported that the Mediation Act which is with the Attorney-General’s Chambers is likely to be submitted to Parliament in the near future which would provide for Court directed mediation so that the option for dispute resolution is backed by statute.

3. Contingency Fees Rules

A draft of this was sent to the Legal Profession Committee and is to be tabled before the Bar Council after the Bar Council office bearers’ elections. With the implementation of the Contingency Fees Rules, contingency fees would be allowed based on the scales prescribed therein.

4. Section 340 of the National Land Code 1965

4.1 There have been proposals that Section 340(3) National Land Code should be amended to protect the interest of an innocent landowner and also to overcome the undesirable decision of the Federal Court in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241 which decided immediate indefeasibility applied as opposed to deferred indefeasibility.

4.2 There have been meetings between the Conveyancing Practice Sub-Committee, the Bar Council and the relevant Authorities with no satisfactory outcome.

4.3 In Praxis July/December 2008 issue at page 19 is a brief report by Rohani Adnan (Assistant Director & Head of the Conveyancing Practice Department) on the current position.

Let us hope that we have a breakthrough this time to remedy the situation.

5. Solicitors’ Remuneration Order

Due to lack of funds, the enforcement of the Solicitors’ Remuneration Order had not been carried out for the past year. However, to ensure that enforcement is effective, powers of search and seizure and harsher penalties for violation are being drafted for approval.

6. Judicial Appointment Commission

As you would have read in the Sunday Star on 15.2.2009 at page F18 wherein the President of the Bar Council has expressed disappointment over the lack of consultation and said inter alia:
“The JAC must represent all the stakeholders; the former Attorney-General can represent the views of the Chambers but there are no lay people or lawyers when they are important stakeholders in the judicial system. And if you load the JAC with too many judges or ex-judges, it will give the impression that it is a closed shop. In other jurisdictions, the lay people exceed the others.”

It was decided at the last Bar Council meeting on 7.2.2009 that lawyers may give their views on the Judges’ performances through their respective State Chairmen who would forward the same to the Bar Council who in turn could raise them with the appropriate Authority.

7. The Human Rights Committee

The Bar Council with its Human Rights Committee headed by Edmund Bon has been very active, as you would have noted, in respect of the plight of certain people amongst us eg. the Orang Aslis, ISA detainees, immigrant workers and Refugees, and have gone a long way to highlight their predicaments and offer solutions.

8. Meeting with the Honourable Chief Justice

On 23.2.2009 at 3.00 pm., there is a meeting between the Bar Council and the Chief Justice and you are encouraged to either write directly to the Bar Council or through the Bar Committee or bring up issues that you would like to be raised for the smoother running of the Courts system.


Asbir Kaur
Perak Bar Representative to Bar Council 2008/2009