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MALAYSIAN LAW CONFERENCE HIGHLIGHTS LEGAL REFORM

Posted on 21st August 2018

 

The International Malaysian Law Conference 2018 was held from 14th to 16th August and covered a diverse range of topics and featured many eminent speakers from around the Asia Pacific. Its first plenary session opened with an address by Malaysia’s Attorney General, Tommy Thomas who spoke about constitutionalism and the need to return to the original tenets of the Federal Constitution, too often amended for political expediency by past regimes. That said he appeared somewhat to contradict his thesis by suggesting that constitutions should not be static instruments but should be amended to keep up with changing societal expectations. How that approach could be adopted without opprobrium or political abuse was unclear from his speech.

“Constitutions are never intended to be static and frozen in time. They are living trees which must be allowed to grow expansively to their natural limits. No constitutional draftsman, however far-sighted or erudite, can be expected to provide for all contingencies that may arise in a nation’s journey into the future, extending to centuries.”

He advocated for changes to be made in 2 areas of topical concern in Malaysia: the reduction of the voting age to 18 and the separation of the public prosecutor’s role from the office of Attorney General. Perhaps what was meant was for changes to be formulated through popular acclamation rather than by political dictates of a ruling government.

The Attorney General also took a strong stand against attempts to restrict judicial review of executive action through the enactment of statutory ouster clauses, a view supported by another eminent speaker Professor Shaq Faruqi of the University of Malaya.

“Hence, access to justice, that is, to the Court, is critical, and any legislative or executive attempt to curtail it must be rejected. It follows that provisions in written law which purport to oust the jurisdiction of the court must be repealed, and I will be recommending to the Government to put the necessary legislation in place.”
Until proposed legislation has been effected, he said that his Chambers would no longer rely on ouster clauses in defence of judicial review actions but would instead object only on the merits of a case.

Emphasising the need for a strong and independent Bar, Mr. Thomas also said that he would recommend to the new Malaysian government that there should be minimal interference by the Attorney General into the regulation of the Bar and would support the redrafting of the Legal Profession Act by the Bar itself.

“Permit me to announce publicly to your Law Conference what I had privately mentioned to your office-bearers in a meeting shortly after taking office. I shall advise the new Government that the State’s intimate involvement in the governance of the legal profession is inimical to the independence of the bar which is, in turn, a vital pre-condition to true functioning democracy. The State should retreat from such involvement. At that meeting, the Bar Council was invited to present a Bill to replace the LPA. If the combined talents of some 18,000 private practitioners cannot draft in quick time a new Act for their own profession, what hope is there for law making by others in the coming years.

Other topics covered during the 3 day conference included, Artificial Intelligence, Humanity and the Law, Investigating International Financial Fraud, Investment Arbitration in the Belt and Road Initiative, The FinTech Legality, Tomorrow’s Law Firms: Innovation in the Legal Profession, and Uber-isation of the Legal Profession.

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