LEGAL PROFESSION

The legal service

Attorney General Appointed by YDPA on the advice of the prime Minister, a person who is qualified to be a judge of

the Federal Court advise the YDPA 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.

Can be invited to Parliament to give advice

Attorney General’s Chambers A number of divisions: Civil Prosecution Advisory International affairs Drafting Law reform

Officers: Federal Counsel, Senior Federal Counsel, Deputy Public Prosecutor

Criminal powers of AG

A 145(3) FC shall have power, exercisable at his discretion, to institute, conduct or

discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

His absolute discretion

S 376(1) Criminal Procedure Code: AG shall be the Public Prosecutor

S 376(3) allows AG to appoint DPP who shall be under the control of PP.

Legal Aid

LEGAL AID DEPARTMENT(run by the government)

LEGAL AID provided by the Bar Council

Legal Aid Department

Run by the State Funding by government To assist people who cannot afford

the cost of legal advice and action Registration fee RM 2.00

Eligibility – The Means Test Apply the means test Financial resources:

Does not exceed RM 25000 per annum Does not exceed RM 30000 per annum Qualified but have to contribute RM 300 Income more than RM 30000 not

qualified

Mandatory Means Test

Income minus expenditure. Expenditure includes: rental, utility

bills, medical bills, personal expenses, monies given to support parents/family etc.

Must provide proof of income and expenses.

Legal aid by the Bar Council Bar Council lawyers provide their

services for free. Also subject to the means test.

Advocate and Solicitor

Qualifications for admission

Pupillage (Chambering)

One of the requirements to be admitted to the Bar.

Completed pupillage with a master having at least 7 years standing in practice as an Advocate and Solicitor.

Chambering period: 9 months.

Exclusive right of advocate and solicitor to appear in court

S35. (1) LPA 1976 Any advocate and solicitor shall, subject

to this Act and any other written law, have the exclusive right to appear and plead in all Courts of Justice in Malaysia according to the law in force in those Courts.

However, to practice, he must have his name on the Roll and a valid practicing certificate, or else he will be committing an offence.

S 36. (1) Subject to this section, no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practising certificate authorizing him to do the act; a person who is not so qualified is in this Act referred to as an “unauthorized person”

S 37 An “unauthorized person” shall be guilty of an offence and shall

on conviction be liable to a fine not exceeding two thousand five hundred ringgit or to imprisonment for a term not exceeding six months or to both

Peguam Syarie

Qualification Peguam Syarie Rules 1993 (Federal Territories) Rule 10: A person may be admitted to be a Peguam Syarie if he-

(a) (i) is a Muslim and has passed the final examinations which

leads to the certificate of a bachelor's degree in Syariah from any university or any Islamic educational institution recognised by the Government of Malaysia; or

(ii) is a Muslim member of the judicial and legal service of the Federation; or

(iii) is a Muslim advocate and solicitor enrolled under the Legal Profession Act 1976; or

(iv) has served as a Syariah Judge or as a Kathi with any State Government in Malaysia for a period of not less than seven years;

(b) has attained the age of twenty-one years;

(c) is of good behaviour and- (i) has never been convicted in Malaysia or

in any other place of any criminal offence; (ii) has never been adjudged a bankrupt;

(d) is a Malaysian citizen; and (e) as an advocate and solicitor, has

passed the Sijil Peguam Syarie examination.

Victoria Jayaseelee Martin v Majlis Agama Islam Wilayah Persekutuan 2011 9 MLJ 194 Applicant’s application to be a

peguam syarie was denied by the Peguam Syarie Committee on the grounds that the applicant did not fulfill the qualification, i.e. the applicant was not a person who professed Islam.

Alternative Dispute Resolution

Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom.

ADR typically includes negotiation, conciliation, mediation, and arbitration. 

Widely accepted alternative to the formal legal process.

Mediation / Conciliation

A neutral third party (mediator/conciliator) will assist the parties in reaching a settlement (facilitative approach).

Generally, the mediator has no power to compel or even recommend a resolution or settlement.

The process works because the parties are given the power and obligation to seek solutions that meet their own needs and interests.

May be opted for in a wide range of subject matters eg, civil and commercial disputes, matrimonial, personal injury, environmental and labour disputes, among others.

Conciliation

Conciliation in Industrial Relations Department.

Conciliation in marital disputes – conciliatory body

Arbitration

A means by which parties to a dispute get the same settled through the intervention of a third person but without having recourse to a court of law.

When two persons agree to have their differences settles through arbitration, the actual decision of the dispute will rest with a third person called an ‘arbitrator’.

Merits of ADR save a lot of time by allowing resolution in weeks

or months, compared to court, which can take years. save a lot of money, including fees for lawyers and

experts, and work time lost. put the parties in control (instead of their lawyers

or the court) by giving them an opportunity to tell their side of the story and have a say in the final decision.

may choose to have a mediator who is an expert in the area related to the dispute.

Private setting or ‘behind closed doors’ preserved secrecy and confidentiality of information.

focus on the issues that are important to the people in dispute instead of just their legal rights and obligations.

Flexibility of process that suits the needs and requirements of the parties.

help the people involved come up with flexible and creative options by exploring what each of them wants to achieve and why.

preserve relationships by helping people co-operate instead of creating one winner and one loser e.g. in marital or labour disputes.