To YLC or Not to YLC, that is the Question.
(From KL Bar's Relevan)
article 19 - August 2006
On 4th October 1975, the Government of Malaysia introduced ESCAR, Essential (Security Cases) Regulations. hat day was the beginning of a massive struggle by the Bar Council, which culminated in the addition of a new provision, the infamous Section 46A in the Legal Profession Act. The ESCAR was seen to be oppressive and had little respect to human rights. The case of a 14 year old boy in Penang found guilty and sentenced to be hung in 1978 became the focal point of a major protest by lawyers back then. The boy was not charged in a juvenile court, and was treated as a normal adult. He was sentenced to death for being in a possession of a pistol. The High Court Judge in that matter, had no choice but to pass that sentence, as it is required so in the ESCAR.
That 14 year old boy’s case caused a massive uproar, and the Bar Council made an appeal to the then Prime Minister, Tun Hussein Onn that the sentence is absolutely against basic human rights. Whilst the Bar Council acknowledge that the need to maintain security in the country was paramount, but that need for security should never compromise the basic civil liberties of fair punishment for offences under the law. That case became a world renowned case, and gave ESCAR world wide publicity. The Malaysian Bar had also passed resolutions to boycott all cases involving ESCAR on the basis that the provision is unconstitutional.
Instead of amending ESCAR, the government saw it fit then to add in S46A.
That infamous provision prohibits 3 groups of lawyers from being part of the Bar Council or State Bar Committees:-
(From KL Bar's Relevan)
article 19 - August 2006
On 4th October 1975, the Government of Malaysia introduced ESCAR, Essential (Security Cases) Regulations. hat day was the beginning of a massive struggle by the Bar Council, which culminated in the addition of a new provision, the infamous Section 46A in the Legal Profession Act. The ESCAR was seen to be oppressive and had little respect to human rights. The case of a 14 year old boy in Penang found guilty and sentenced to be hung in 1978 became the focal point of a major protest by lawyers back then. The boy was not charged in a juvenile court, and was treated as a normal adult. He was sentenced to death for being in a possession of a pistol. The High Court Judge in that matter, had no choice but to pass that sentence, as it is required so in the ESCAR.
That 14 year old boy’s case caused a massive uproar, and the Bar Council made an appeal to the then Prime Minister, Tun Hussein Onn that the sentence is absolutely against basic human rights. Whilst the Bar Council acknowledge that the need to maintain security in the country was paramount, but that need for security should never compromise the basic civil liberties of fair punishment for offences under the law. That case became a world renowned case, and gave ESCAR world wide publicity. The Malaysian Bar had also passed resolutions to boycott all cases involving ESCAR on the basis that the provision is unconstitutional.
Instead of amending ESCAR, the government saw it fit then to add in S46A.
That infamous provision prohibits 3 groups of lawyers from being part of the Bar Council or State Bar Committees:-
a. lawyers in practise less than seven years
b. members of Parliament or State Legislative
c. Lawyers who were holding office in :-
(i.) trade unions;
(ii.) political parties, or
(iii.) any other organisations which is political in nature.
Recently on 5th July 2006, after almost 30 years of struggle, Dewan Rakyat passed the Legal Profession (Amendments) Bill 2006. In Paragraph 10, para (a) of S46A, which prohibits the involvement of lawyers less than seven years in practise, is abolished. In due time, the Bill will be passed and gazetted.
This marks a new era for the Bar. Finally any lawyer, at any age is not prohibited to offer oneself as a candidate for election to the Bar Council or State Bars. However it is still regretful that the members of the Bar involved in politics or trade unions continue to be sidelined. This separation is discriminatory against lawyers who just happened to have political and union affinities.
Whilst the continued prohibition of lawyers involved in politics and unions is frowned upon, the abolishment of the superficial prohibition of younger lawyers to be part of the Bar Council and State Bars is extremely welcomed and will definitely be received warmly by the legal profession. The Bar has evolved since the insertion of S46A in 1978. Initially the Bar had passed resolutions condemning the provision and eventually challenged the constitutionality of the S46A in Court, which culminated in the matter of Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165. By a majority of 2-1, the Supreme Court held that S46A was constitutional.
In the late 1990s, the Bar Council formed the National Young Lawyers Committee. The Kuala Lumpur Bar had a Junior Lawyers Representative under the Junior Lawyers Liaison Committee which then evolved into its current form of Young Lawyers Committee (YLC).
The YLC at KL Bar is given observer status in its’ monthly meetings, wherein the Chair and Secretary of the YLC are invited to be part of the meetings.
With the abolishment of that provision, the Bar Council and State Bars have to face different challenges with the YLC. Continuing the operation of the YLC in its current format, will mean that the Bar continues to separate the lawyers by their years in practise. We will look rather hypocritical. On one hand we criticised the government for imposing such a provision on us, and on the other hand (if we continue to form the YLC after this 2006 amendments) we may be seen to have internal discrimination.
The YLC of KL Bar in its current format is dynamic and proactive. Some of our more famous members like Ragunath Kesavan and Edmund Bon have gone on to be council members of the Bar Council. KL’s YLC is definitely the bedrock to many future leaders of the Bar. The activities of the YLC cater to the interest of many lawyers. Training on Corporate Law, targets the young
corporate lawyers. Lawyers who have welfare in their heart, join the Welfare Committee of YLC. The Human Rights Committee provide the platform for many aspiring Human Rights Lawyers.
Views of the YLC are seriously taken into account by the current KL Bar Committee, and many decision making process includes discussion with the YLC. Can we do away with the YLC? Should we close the YLC? What do we do with YLC?
These new and novel issues of the YLC have to be addressed.
I am of the view that the YLC must stay. YLC should be permitted in as part of the mainstream KL Bar Committee. The Chair of YLC should now be selected from one of the Committee Members of KL Bar. Perhaps a new convention and practice be formed wherein the youngest committee member is selected as the Chair of YLC.
Membership to YLC should be open to all lawyers irrespective of how long one has practised, but the Bar Council or State Bar can encourage the participation of the younger lawyers who just stepped into practice.
The YLC is an important committee to prepare future leaders of the Bar and also become a soft landing spot for younger lawyers who aspire to be active in the Bar Council or State Bars. To close it would be a shame.
The new YLC should be empowered to assist the younger lawyers who are more often than not, lost in the legal daily juggernauts. It should be the lubricant to ease lawyers into practice, and the no. 1 associate to all younger lawyers when they join the profession.
We must no more divide the membership of the Bar based on our years in practice. We are now a new Bar, stepping into a new era. We must do new things!
Richard Wee Thiam Seng
Chairman
Young Lawyers Committee
2006/07
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