Amendment Act · As enacted · 1 part
Advocates Ordinance (Sabah) (Amendment) Act 2017
Changes to the Sabah law on advocatesOfficial textFrom Laws of Malaysia Online, unchanged
This Act may be cited as the Advocates Ordinance
(Sabah) (Amendment) Act 2017.
Subject to subsection (3), this Act comes into operation on a date to be appointed by the Minister by notification in the
Gazette.
Section 23 of this Act shall come into operation on a date to be appointed after the same has been adopted in the State of
Sabah by an Enactment of the Legislature of the State.
s 2New Part I
The Advocates Ordinance [Sabah Cap. 2], which is referred to as the “Ordinance” in this Act, is amended by inserting after the long title the following Part:
“Part I
PRELIMINARY”
s 3Amendment of section 2
The Ordinance is amended in section 2—
in subsection (1)—
by inserting before the definition of “Chief Judge”
the following definitions:
‘ “advocate” means a person admitted and enrolled as an advocate under this Ordinance;
“Annual Certificate” means the Annual
Certificate issued by the Law Society pursuant to section 7c;
“certificate to practise” means the certificate to practise issued by the Registrar under section 9;’;
by inserting after the definition of “Chief Judge”
the following definitions:
‘ “Law Society” means the Sabah Law Society established under section 7a;
“master” means an advocate who has been lawfully practising in Sabah for a period of not less than seven years immediately prior to taking in a pupil;
“pupil” means a person having the qualifications set out in subsection 4(1) serving under a master prior to his admission as an advocate under this Ordinance;’;
in the definition of “to practise in Sabah”—
by deleting the word “or” at the end of paragraph (a);
Advocates Ordinance (Sabah) (Amendment)
by inserting at the end of paragraph (b)
the word “or”; and
by inserting after paragraph (b) the following paragraph:
“(c) any of the functions authorized under this Ordinance;”;
by inserting before the definition of “Registrar”
the following definition:
‘ “Register of Advocates” means the annual register kept by the Registrar under section 9b;’;
in the definition of “roll”, by substituting for the word “3” the word “7”;
by substituting for the full stop at the end of the definition of “roll” a semicolon; and
by inserting after the definition of “roll” the following definition:
‘ “Sabah”, except for subsection 2(2), includes the Federal Territory of Labuan.’; and
in subsection (2)—
by inserting after the word “he” the words “is a
Malaysian citizen or permanent resident who”;
and
in paragraph (a), by inserting after the word “Sabah”
the words “or the Federal Territory of Labuan”.
s 4Deletion of section 3
The Ordinance is amended by deleting section 3.
s 5New Part II
The Ordinance is amended by inserting before section 4 the following Part:
“Part II
PROVISIONS RELATING TO ADMISSION OF ADVOCATES”.
s 6Amendment of section 4
Section 4 of the Ordinance is amended—
in paragraph (1)(ca), by substituting for the word “Schedule”
the words “First Schedule”;
in subsection (1a)—
by substituting for the words “has been a Magistrate of the First Class” the words “has served in the
Judicial and Legal Service”; and
by substituting for the word “five” the word
“seven”;
in paragraph (1b)(b), by substituting for the word “five”
the word “seven”; and
by inserting after subsection (1b) the following subsections:
“(1c) A person may serve different parts of his period of pupillage with different advocates who have been practising in some part of Malaysia for a period of not less than seven years immediately prior to the person becoming his pupil.
A person must possess either one of the qualifications mentioned in subsection (1) prior to his becoming a pupil or prior to the commencement of his reading in the chambers of the State Attorney-General, or of an advocate who has been lawfully practising in some part of Malaysia for a period of not less than seven years immediately prior to the person becoming his pupil or commencing to read in chambers.
Advocates Ordinance (Sabah) (Amendment)
Notwithstanding subsection (1d), a person may serve his pupillage or commence his reading in chambers if he has passed the final examinations for the degree or possessed other qualification mentioned in subsection (1) which makes him qualified for admission as an advocate but before the degree or other qualification has been conferred on him.”.
s 7New section 4a
The Ordinance is amended by inserting after section 4 the following section:
“Pupil may be permitted to appear before admission on the roll.
s 4a
The Chief Judge may, upon application made in Chambers by a master at the commencement of the pupillage of the master’s pupil, make an order that the pupil be permitted to appear on behalf of the master or of the firm in which the master is practising—
during the period of three months from the date of the order—
before a Judge or a Registrar of the
High Court, in Chambers;
before a Sessions Court Judge or a
Magistrate, in Chambers;
before a Registrar of the Subordinate
Courts, to mention a case, including entering judgment in default, or to apply for bail or to take a consent judgment or order; and
at the expiration of the said period of three months, in Chambers in the High Court and in the Subordinate Courts and before any
Magistrate, to conduct any cause or matter.
The Chief Judge shall make the order referred to in subsection (1) if he thinks it is fair and reasonable to do so provided always that both the State
Attorney-General and the Law Society have been served with the application and have had an opportunity to be heard on the application.
The master of the pupil, the State Attorney-General and the Law Society may apply at any time during the pupillage of any pupil to the Chief Judge in Chambers for a variation or rescission of the order referred to in subsection (1) and the Chief Judge shall make such order on the application as in all the circumstances seems to be in the best interest of the profession.”.
s 8Amendment of section 5
Section 5 of the Ordinance is amended—
in subsection (1)—
by inserting after the word “may” the words “by petition verified by his own affidavit”; and
in paragraph (a), by substituting for the words
“subsection (2) of section 4” the words
“subsection 4(2)”; and
in subsection (2), by substituting for the words “Sabah
Law Association” the words “Law Society”.
s 9Substitution of section 7
The Ordinance is amended by substituting for section 7 the following section:
“Roll of advocates.
s 7
The Registrar shall keep a roll of advocates with the dates of their respective admission.
The name, with the date of admission, of every person admitted shall be entered upon the roll in the order of admission.
Advocates Ordinance (Sabah) (Amendment)
When an order is made under section 6 and on payment of the prescribed fee by the applicant, the Registrar shall cause to be entered upon the roll the name of the applicant and the date of his admission and the applicant shall thereupon become and be styled an advocate and shall continue to be an advocate so long as his name remains on the roll.
The Registrar shall from time to time and at least once in every year publish in the Sabah
Government Gazette the names of all persons on the roll.
The roll shall be open to inspection without payment by any person during office hours.”.
s 10New Part III
The Ordinance is amended by inserting after section 7 the following Part:
“Part III
SABAH LAW SOCIETY
Establishment of Sabah
Law Society.
s 7a
A body corporate which shall be known as the “Sabah Law Society” is established with perpetual succession and a common seal.
The Law Society shall consist of the following:
the President;
the Vice-President;
the immediate past President;
the Secretary;
the Assistant Secretary;
the Treasurer; and
members pursuant to section 13b.
The Law Society may sue or be sued in its corporate name.
Subject to and for the purposes of this
Ordinance, the Law Society may, upon such terms as the Law Society deems fit—
enter into contracts; and
in respect of movable and immovable property and interest in movable or immovable property of every description—
acquire, purchase, take, hold and enjoy such property; and
convey, assign, surrender, yield up, charge, mortgage, demise, reassign, transfer, or otherwise dispose of, or deal with such property and interest vested in the Law Society.
The Constitution and rules of the Law Society shall be as set out in Part VI of this Ordinance.
Common seal.
s 7b
The common seal of the Law Society shall bear a device as approved by the Law Society and the seal may from time to time be broken, changed, altered and made anew as the Law Society thinks fit.
Until a seal is provided by the Law Society, a stamp bearing the words “Sabah Law Society”
may be used and shall be deemed to be its common seal.
The common seal of the Law Society shall be kept in the custody of the President of the Law
Society or any other person authorized by the Law
Society, and shall be authenticated by either the
President of the Law Society or by such other person authorized by the President of the Law Society in writing.
Advocates Ordinance (Sabah) (Amendment)
All deeds, documents and other instruments of the Law Society purporting to be sealed with the common seal of the Law Society and authenticated in accordance with subsection (3) shall, until the contrary is proved, be deemed to have been validly executed.
Any deed, document and other instrument which, if executed by a person not being a body corporate, is not required to be under seal may in like manner be executed by a member of the Law
Society or by any member of the Law Society authorized in that behalf.
The common seal of the Law Society shall be officially and judicially noticed.
Every document to which the common seal of the Law Society is affixed shall be signed by two members of the Law Society appointed by the
President of the Law Society in that behalf.
Annual
Certificate.
s 7c
Subject to sections 7d and 7e, the Law
Society shall at any time after the month of June in the preceding year issue an Annual Certificate to an advocate within twenty-eight days of the receipt of an application under subsection (2) if—
the Law Society is satisfied that the application complies with that subsection and any rules made under this section;
the Law Society is satisfied that the applicant is not disqualified from holding a certificate to practise under section 9a;
the applicant is not in arrears in respect of any subscription or levy lawfully due to the Law Society under this Ordinance;
and
the applicant intends to practise under an approved name.
An application by an advocate for an Annual
Certificate shall be made in such form as may be prescribed by the rules made under this section and shall be accompanied by appropriate certificates showing that paragraph 1(c) has been complied with.
Disciplinary proceedings may be taken against any advocate if in, or in relation to, an application under this section he makes a false statement material to the application.
Subject to this Ordinance, the Law Society may make rules regulating the issue of Annual
Certificates.
Any rules made by the Law Society under this section shall be signed by the President of the
Law Society and published in the Sabah Government
Gazette.
Issue of Annual
Certificate in certain conditions.
s 7d
Subsection (2) shall have effect in relation to an application for an Annual Certificate made by an advocate—
after more than twelve months have elapsed since his admission and if he has held no valid certificate to practise during that period;
who has held a certificate to practise subject to terms and conditions at any time in the three years immediately preceding his application;
after more than twelve months have elapsed since he held a valid certificate to practise;
after the Disciplinary Board has ordered a penalty or costs to be paid by him;
when having been suspended from practice or having had his name removed from the roll or struck off the roll, the period of suspension has expired or his name has been restored to the roll, as the case may be;
Advocates Ordinance (Sabah) (Amendment)
whilst he is an undischarged bankrupt or a receiving order in bankruptcy is in force against him;
after having been adjudicated a bankrupt and obtained a discharge or having entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors;
after having had an order of committal or an order for the issue of a writ of attachment made against him.
In any of the circumstances mentioned in subsection (1), the applicant shall, unless the Chief
Judge or the Law Society otherwise orders, give to the Law Society not less than six weeks before his application for an Annual Certificate notice of his intention to apply for the Certificate and the
Law Society may in its discretion—
issue an Annual Certificate; or
notify the applicant that he is required to make an application to the Court under section 7e.
Applicant to apply to
Court.
s 7e
An advocate who is—
required to make an application under this section; or
dissatisfied with the refusal, neglect or delay in the issue to him of an Annual
Certificate, may apply to the Chief Judge by originating summons for an order directing the Law Society to issue him with an Annual Certificate.
Law Society to maintain register of firm names.
s 7f
The Law Society shall maintain a register of firm names under which advocates practise.
The Law Society may refuse the registration of any firm name on the ground that the proposed firm name is offensive or is likely to be confused with a registered firm name or is likely to mislead the public.
An advocate who is dissatisfied with a decision of the Law Society under subsection (2)
may appeal to the High Court whose decision shall be final.
An advocate shall not submit to the Law
Society for registration a firm name that is not—
his own name or initials of his name;
the names or initials of the names of advocates who are or were his partners;
the names or initials of the names of his predecessors whose goodwill he has, or his partners have, acquired; or
any combination of the names or initials of the names specified in paragraphs (a), (b)
and (c).
In any case where a name which complies with subsection (4) cannot be registered without contravening subsection (2), then the person may practise under such name as the Law Society may approve.
An advocate who acts in contravention of subsection (5) may be liable to disciplinary proceedings.
The Law Society—
shall, at the request of the partners practising under a firm name; or
may, if it is satisfied that no one is practising under that name, remove a firm name from the register.”.
Advocates Ordinance (Sabah) (Amendment)
s 11New Part IV
The Ordinance is amended by inserting before section 8 the following Part:
“Part IV
PROVISIONS RELATING TO PRACTICE OF ADVOCATES”.
s 12Amendment of section 8
Section 8 of the Ordinance is amended—
in subsection (1), by inserting after the words “Federal
Court” the words “or Court of Appeal when sitting in
Sabah or when sitting in any other part of Malaysia hearing a cause or matter originating from the High
Court or any subordinate court”; and
in subsection (2), by inserting after the words “Federal
Court” wherever appearing the words “or Court of
Appeal”.
s 13Amendment of section 9
Section 9 of the Ordinance is amended—
by renumbering the existing section as subsection (1);
by substituting for the words “thirty-first” in the proviso to the renumbered subsection (1) the word “31st”; and
by inserting after the renumbered subsection (1) the following subsections:
“(2) Every advocate shall in each year before he does any act in the capacity of an advocate deliver or cause to be delivered to the Registrar—
a declaration in writing stating—
his full name;
the name under which he practises or the name of the advocates or the firm of advocates employing him;
the principal and any other address at which he practises in Sabah; and
that he has not contravened the
Advocates’ Remuneration Rules 1988
[G.N.S. 17 of 1988]; and
the last Annual Certificate or a true copy of the Certificate, if any, issued to him by the
Law Society, and the Registrar shall on being satisfied that all the necessary documents are in order and that the firm’s name under which the advocate is practising is on the register maintained under subsection 7f(1), issue the advocate a certificate to practise.
Subject to subsection (5), every certificate to practise shall be signed by the Registrar and shall be valid from the date of issue to the end of the year in which the same is issued.
Notwithstanding subsection (3), where—
the name of an advocate is removed from, or struck off, the roll, the certificate to practise, if any, of that advocate shall expire forthwith and the date of such expiration shall be entered by the Registrar on the Register of
Advocates;
an advocate is adjudicated a bankrupt or a receiving order is made against him, the certificate to practise, if any, of that advocate shall be suspended forthwith until the consent of the Law Society to reinstate it is obtained.
Where an advocate has duly complied with subsection (1)
in the month of January of any year, the certificate to practise issued to him in respect of that year shall be deemed to have been in operation from the 1st day of January in that year.
In this section, “year” means the period from 1 January in any calendar year to 31 December in the same calendar year.”.
Advocates Ordinance (Sabah) (Amendment)
s 14New sections 9a and 9b
The Ordinance is amended by inserting after section 9
the following sections:
“Disqualification for certificate to practise.
s 9a
An advocate shall not apply for a certificate to practise—
unless he is practising or intends to practise either on his own account or in partnership in Sabah under a firm registered under section 7f;
unless he is or is about to be employed full time in his practice in Sabah by an advocate or a firm of advocates in practice in Sabah under a firm registered under section 7f; or
if he is gainfully employed by any other person, firm or body other than an advocate or a firm of advocates in a capacity other than as an advocate.
For the purpose of this section, an advocate shall not be construed as being gainfully employed if he is serving in the Judicial and Legal Service or the State Legal Service.
Any advocate who is gainfully employed in accordance with paragraph (1)(c) shall surrender his certificate to practise to the Registrar.
Register of
Advocates.
s 9b
Upon the issue of every certificate to practise the Registrar shall cause to be entered in an annual register known as the “Register of Advocates”, the particulars contained in the declaration delivered under subsection 9(2), and any person may inspect the Register of Advocates during office hours without payment.
If there is any change with respect to any advocate in the particulars referred to in subsection (1) that advocate shall within one month thereafter notify the Registrar and the
Law Society, and the Registrar shall then cause the entry to be made in respect of that advocate in the Register of Advocates.”.
s 15Substitution of section 10
The Ordinance is amended by substituting for section 10 the following section:
“Permission to practise in special cases.
s 10
Notwithstanding anything contained in this
Ordinance, the Chief Judge may in his absolute discretion upon application by or on behalf of any person who possesses any of the qualifications mentioned in subsection 4(1) grant permission to such person to practise in any one case or matter subject to any conditions he may think fit and to the payment of the prescribed fee if—
such person has been instructed by a local advocate; and
having regard to all the relevant circumstances he is of the opinion that it is in the interest of justice so to do.
An application under subsection (1) by any person shall be made by a petition verified by his own affidavit or the affidavit of the advocate instructing him and showing—
that he has been instructed by a local advocate;
all relevant circumstances pertaining to the cause or matter in which the applicant intends to appear;
the grounds or reasons as to why it would be in the interests of justice for the applicant to be admitted under this section; and
the special qualifications and experience of the applicant.
The application shall be served on the State
Attorney-General and the Secretary of the Law
Society, and at the time of service the applicant shall pay three hundred ringgit to the Secretary of the Law Society as costs.
Advocates Ordinance (Sabah) (Amendment)
Before granting permission to any person to practise under this section, the Chief Judge shall have regard to the views of each of the persons served with the application.
The Registrar shall, on payment of the prescribed fee, issue to every person permitted to practise under this section a certificate to practise specifying in it the cause or matter in which the person is permitted to appear, and any person to whom a certificate to practise has been issued under this subsection shall for the purpose of his employment in such cause or matter be deemed to be a person to whom a certificate to practise has been issued under section 9.
The Registrar shall keep a separate roll for the names of persons permitted to practise under this section.
In this section, “cause or matter” includes any interlocutory or appeal proceedings connected with any cause or matter.”.
s 16New Part V
The Ordinance is amended by inserting before section 12
the following Part:
“Part V
DISCIPLINARY PROCEEDINGS AGAINST ADVOCATES”.
s 17Deletion of section 12
The Ordinance is amended by deleting section 12.
s 18Substitution of section 12a
The Ordinance is amended by substituting for section 12a the following section:
“Disciplinary
Board.
s 12a
A Disciplinary Board is established for the purposes of disciplinary proceedings under this Part.
The Disciplinary Board shall consist of the following members:
the Chairman of the Disciplinary Board appointed by the Chief Judge after consultation with the Law Society and such person shall be a retired Judge of the
High Court, Court of Appeal or Federal
Court or any other person who is qualified to be a Judge of the High Court or the
Court of Appeal or the Federal Court;
the President of the Law Society or the
Vice-President of the Law Society as his alternate; and
eight advocates of not less than seven years’ standing appointed by the Chief
Judge after consultation with the Law
Society.
The members referred to in paragraphs (2)(a)
and (c) shall be appointed for a term of two years.
For the purposes of the member referred to in paragraph (2)(a), the Chief Judge may, after consultation with the Law Society, extend such term of appointment for another two years and may reappoint for another period not exceeding two years.
The quorum of the Disciplinary Board shall be three with a member each from paragraphs 2(a),
and (c).
Advocates Ordinance (Sabah) (Amendment)
The Chairman of the Disciplinary Board shall preside over at meetings of the Disciplinary Board and if the Chairman disqualifies himself pursuant to subsection (8), or if the Chairman is unable, through illness or any other cause, to attend the meeting, the President of the Law Society shall preside at the meeting.
If the President of the Law Society also disqualifies himself from deliberating on any complaint pursuant to subsection (8), or is unable, through illness or any other cause, to attend the meeting, the members present shall elect one of their number to preside at the meeting for the purposes of the complaint.
The Chairman of the Disciplinary Board, the President of the Law Society and any other member of the Disciplinary Board shall, where it is necessary in the interest of justice, disqualify himself from deliberating on any complaint.
The Secretary of the Disciplinary Board shall be a full-time employee of the Law Society appointed by the Law Society and such person shall be an advocate of not less than five years’
standing.
The Disciplinary Board may make rules to regulate its own procedure.”.
New sections 12b, 12c, 12d, 12e, 12f, 12g, 12h, 12i, 12j, 12k,
12l and 12m
s 19
The Ordinance is amended by inserting after section 12a the following sections:
“Power of
Disciplinary