Background

The Sabah Law Society is the statutory body established pursuant to section 7A of the Advocates Ordinance (Sabah Cap. 2) which was amended by the Advocates (Sabah)(Amendment) Act 2016 which was in effect since 1 July 2017.

 

Advocates Ordinance

The Advocates Ordinance (Sabah Cap. 2) is a federal law under Item 4 (d) of the Federal List, 9th Schedule of the Federal Constitution. The Federal Parliament has the power to pass law to control and regulate persons entitled to practise before the courts.

However, Item 4(d) of the Annexure A to the Inter-Governmental Committee Report 1962 stated 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.”

Article 161B(1) of the Federal Constitution states that “any law passed by Parliament ot remove or alter the residence qualification by conferring right to practice before a court in Sabah on persons previously not having such right shall not come into force until adopted by an enactment passed by the State Legislature.

161B.    Restriction on extension to non-residents of right to practise before courts in State of Sabah and Sarawak

 (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 States of Sabah and Sarawak 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 or the Court of Appeal when sitting in the States of Sabah and Sarawak and entertaining proceedings on appeal from the High Court in Sabah and Sarawak 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 Sabah and Sarawak or a subordinate court in the State of Sabah or Sarawak.

 

Amendments to the Advocates Ordinance 

The Advocates Ordinance is an old law passed in 1953 by the British Colonial Government. Sometime in 1997, the Sabah Law Association began its efforts to propose comprehensive amendments to improve the Advocates Ordinance. In 2012, Sabah Law Association’s efforts gathered further pace when the Federal Attorney-General’s Chambers intended to amend the Advocates Ordinance to introduce provisions on liberalising legal services.

On 18 October 2016, after much debate the Advocates (Sabah)(Amendment) Bill 2016 was passed in the Dewan Rakyat. On 20 December 2016, the Dewan Negara had passed the Bill as well. The Bill received Royal Assent and was published in the Federal Gazette on 20 March 2017.

Pursuant to the Federal Gazette PN (U2) 2894/II] dated 2 June 2017, the amendments to the Advocates Ordinance (except Part VII – Liberalisation of Legal Practice for Foreign Lawyers) would be in force from 1 July 2017.

Major Amendments to Advocates Ordinance (w.e.f. 1 July 2017)

  • 1

    Sabah Law Society (ss. 7A – 7F)

    One of the major amendments is the establishment of a body corporate called “the Sabah Law Society” to control and regulate legal practice in Sabah in Part III (consisting of sections 7A to 7F) of the amended Ordinance. The Sabah Law Society is empowered to issue Annual Certificates to advocates and to maintain a register of firm names. The objects and other powers of the Sabah Law are provided in section 13A which forms part of the Constitution and Rules of the Sabah Law Society found in Part VI (consisting of sections 13A to 13Q) of the amended Ordinance.

  • 2

    Disciplinary Board, Discipline Fund & Procedure for Disciplinary Proceedings (Part V)

    The next major amendment is the introduction of section 12A which provides for the setting a Disciplinary Board for purpose of dealing with disciplinary proceedings against errant advocates. The introduction of sections 12A to 12M provides for the procedure in dealing with advocates subject to disciplinary actions, for the definition of “misconduct”, for the penalties or punishments to imposed if found guilty of misconduct, for appeal from the decision of Disciplinary Board and for empowering the Board to make its own rules.

  • 3

    Establishment of Compensation Fund (s. 16E)

    To establish a Compensation Fund consisting of contributions (amount of which is to be determined by the Sabah Law Society) made by every advocate on each occasion he applies for Annual Certificate from the Sabah Law Society through the introduction of section 16E.

    The moneys from Fund will be mainly utilised, apart from defraying costs of maintaining and administering the Fund, to make a grant to any person to relieve or to mitigate any loss sustained by that person in consequence of the dishonesty on the part of any advocate or his clerk or servant in connection with his practice as an advocate in Sabah or in connection with any trust of which he is a trustee.

    If in any year, no grant is made from the Fund, the moneys may be used for setting up a library for the use of the members of the Sabah Bar and for the purpose of legal aid such as that provided by Yayasan Bantuan Guaman Kebangsaan (section 16E)

  • 4

    Liberalisation of Legal Practice for Foreign Lawyers (Part VII)

    The third major amendment is to introduce a new Part VII incorporating sections 14A to 14O into the Ordinance to provide for liberalisation of legal practice in Sabah in line with the amendments made to the Legal Profession Act 1976.

    However, this Part on liberalisation will only come into force by way of an Enactment passed by the State Legislature in line with the protection under Article 161 B of the Federal Constitution.

    Generally, the aim of liberalisation is to expand the work, expertise and specialisation of legal profession in Malaysia. The liberalisation is to allow foreign firms to practise in Sabah in permitted practice areas as determined by the Sabah Law Society through international partnerships, qualified foreign firms or registered foreign lawyers working in local firm subject to certain conditions and restrictions.

Other Amendments 

  • 5

    Advocates must be Malaysian citizens or permanent residents (s. 2(2))

    Only persons who are Malaysian citizens or permanent residents in Sabah can be admitted as advocates in Sabah.

  • 6

    Definition of “Sabah connections” to include those born in Labuan F.T (s. 2(2)(a))

    The definition of “Sabah connections” was amended to include persons born in Labuan F.T.

  • 7

    Service in Federal Judicial and Legal Service in Sabah to be treated as having served the required period of pupillage (s. 4(1A))

    Any duly qualified person who has served in the Judicial and Legal Service in Sabah for period of not less than twelve months shall be treated as having served the required period of pupillage to qualify for admission as advocate.

  • 8

    Increase of qualified period to be a pupil’s master (s 4(1A))

    The qualifying period as a pupil’s master is increased from five (5) years to seven (7) years.

  • 9

    Pupils’ right to appear in cases in chambers while serving pupillage (s. 4A)

    Introduction of short-call provision to enable pupils to appear on behalf of the master or the master’s firm before the Courts to conduct an action, suit or matter in Chambers or before Registrar of the Subordinate Courts.

  • 10

    Registration of firm names and restriction on the use names as firm names (s. 7F)

    Introduction of a provision to require the Sabah Law Society to maintain a register of firms under which advocates practise and to provide that a firm name must be his own name or initials of his own name or names or initials of advocates who are or were his partners or names or initials of his predecessors whose goodwill he has or his partners have acquired or any combination of the names or initials specified above.

  • 11

    Right of Sabah advocates to appear before Court of Appeal and Federal Court sitting outside Sabah to hear cases on matters arising from Sabah (s. 8(1))

    To provide for the right of Sabah advocates to appear before Court of Appeal and Federal Court hearing cases outside Sabah on matters arising from Sabah (section 8(1);

  • 12

    New definition of “unauthorised person” (ss. 15 – 16)

    Introduction of a new and wider definition of “unauthorised person”.

  • 13

    Clearer definition of areas where only advocates can practise and to enhance penalties for breach (s. 16)

    Broadening of the category of offences that may be committed by persons not authorised to practise in areas of practice which only advocates have exclusive right to practise and to increase the penalties for offences committed.

  • 14

    Operation of clients’ account of a deceased advocate and taking possession of property of a bankrupt advocate or an advocate who is a lunatic etc. by Sabah Law Society (ss. 16A – 16D)

    Introduction of provisions (i.e. sections 16A, 16B, 16C and 16D) to enable the Sabah Law Society to operate bank accounts of deceased advocates’ clients and to allow Sabah Law Society to take possession of the property of an advocate who has been declared bankrupt or is a lunatic etc. in accordance with the provisions in the new Second Schedule (sections 16A, 16B and 16C).

  • 15

    Power to make rules on professional indemnity (s. 16D)

    Introduction of provisions to empower the Sabah Law Society to make rules on professional indemnity insurance.