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Amendment Act · As enacted · 1 part

Akta Ordinan Peguam Bela (Sabah) (Pindaan) 2017

Changes to the Sabah law on advocates

Official textFrom Laws of Malaysia Online, unchanged

s 1Tajuk ringkas dan permulaan kuat kuasa

(1)

Akta ini bolehlah dinamakan Akta Ordinan Peguam Bela

(Sabah) (Pindaan) 2017.

(2)

Tertakluk kepada subseksyen (3), Akta ini mula berkuat kuasa pada tarikh yang ditetapkan oleh Menteri melalui pemberitahuan dalam Warta.

(3)

Seksyen 23 Akta ini hendaklah mula berkuat kuasa pada tarikh yang ditetapkan selepas seksyen itu diterima pakai di Negeri

Sabah melalui Enakmen Badan Perundangan Negeri itu.

s 2Bahagian baharu I

Ordinan Peguam Bela [Sabah Bab 2], yang disebut “Ordinan”

dalam Akta ini, dipinda dengan memasukkan selepas tajuk panjang

Bahagian yang berikut:

“Part I

PRELIMINARY”.

Undang-Undang Malaysia 4

s 3Pindaan seksyen 2

Ordinan dipinda dalam seksyen 2—

(a)

dalam subseksyen (1)—

(i)

dengan memasukkan sebelum takrif “Chief Judge”

takrif yang berikut:

‘ “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;’;

(ii)

dengan memasukkan selepas takrif “Chief Judge”

takrif yang berikut:

‘ “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;’;

(iii)

dalam takrif “to practise in Sabah”—

(A)

dengan memotong perkataan “or” pada hujung perenggan (a);

Ordinan Peguam Bela (Sabah) (Pindaan)

(B)

dengan memasukkan pada hujung perenggan (b) perkataan “or”; dan

(C)

dengan memasukkan selepas perenggan (b)

perenggan yang berikut:

“(c) any of the functions authorized under this Ordinance;”;

(iv)

dengan memasukkan sebelum takrif “Registrar”

takrif yang berikut:

‘ “Register of Advocates” means the annual register kept by the Registrar under section 9b;’;

(v)

dalam takrif “roll”, dengan menggantikan perkataan

“3” dengan perkataan “7”;

(vi)

dengan menggantikan noktah pada hujung takrif

“roll” dengan koma bernoktah; dan

(vii)

dengan memasukkan selepas takrif “roll” takrif yang berikut:

‘ “Sabah”, except for subsection 2(2), includes the Federal Territory of Labuan.’; dan

(b)

dalam subseksyen (2)—

(i)

dengan memasukkan selepas perkataan “he”

perkataan “is a Malaysian citizen or permanent resident who”; dan

(ii)

dalam perenggan (a), dengan memasukkan selepas perkataan “Sabah” perkataan “or the Federal

Territory of Labuan”.

s 4Pemotongan seksyen 3

Ordinan dipinda dengan memotong seksyen 3.

Undang-Undang Malaysia 6

s 5Bahagian baharu II

Ordinan dipinda dengan memasukkan sebelum seksyen 4

Bahagian yang berikut:

“Part II

PROVISIONS RELATING TO ADMISSION OF ADVOCATES”.

s 6Pindaan seksyen 4

Seksyen 4 Ordinan dipinda—

(a)

dalam perenggan (1)(ca), dengan menggantikan perkataan

“Schedule” dengan perkataan “First Schedule”;

(b)

dalam subseksyen (1a)—

(i)

dengan menggantikan perkataan “has been a Magistrate of the First Class” dengan perkataan

“has served in the Judicial and Legal Service”; dan

(ii)

dengan menggantikan perkataan “five” dengan perkataan “seven”;

(c)

dalam perenggan (1b)(b), dengan menggantikan perkataan

“five” dengan perkataan “seven”; dan

(d)

dengan memasukkan selepas subseksyen (1b) subseksyen yang berikut:

“(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.

(1d)

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.

Ordinan Peguam Bela (Sabah) (Pindaan)

(1e)

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 7Seksyen baharu 4a

Ordinan dipinda dengan memasukkan selepas seksyen 4 seksyen yang berikut:

“Pupil may be permitted to appear before admission on the roll.

s 4aSection 4a

(1)

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—

(a)

during the period of three months from the date of the order—

(i)

before a Judge or a Registrar of the

High Court, in Chambers;

(ii)

before a Sessions Court Judge or a Magistrate, in Chambers;

(iii)

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

(b)

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.

(2)

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

Undang-Undang Malaysia 8

Attorney-General and the Law Society have been served with the application and have had an opportunity to be heard on the application.

(3)

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 8Pindaan seksyen 5

Seksyen 5 Ordinan dipinda—

(a)

dalam subseksyen (1)—

(i)

dengan memasukkan selepas perkataan “may”

perkataan “by petition verified by his own affidavit”; dan

(ii)

dalam perenggan (a), dengan menggantikan perkataan

“subsection (2) of section 4” dengan perkataan

“subsection 4(2)”; dan

(b)

dalam subseksyen (2), dengan menggantikan perkataan

“Sabah Law Association” dengan perkataan “Law Society”.

s 9Penggantian seksyen 7

Ordinan dipinda dengan menggantikan seksyen 7 dengan seksyen yang berikut:

“Roll of advocates.

s 7Section 7

(1)

The Registrar shall keep a roll of advocates with the dates of their respective admission.

(2)

The name, with the date of admission, of every person admitted shall be entered upon the roll in the order of admission.

Ordinan Peguam Bela (Sabah) (Pindaan)

(3)

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.

(4)

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.

(5)

The roll shall be open to inspection without payment by any person during office hours.”.

s 10Bahagian baharu III

Ordinan dipinda dengan memasukkan selepas seksyen 7

Bahagian yang berikut:

“Part III

SABAH LAW SOCIETY

Establishment of Sabah

Law

Society.

s 7aSection 7a

(1)

A body corporate which shall be known as the “Sabah Law Society” is established with perpetual succession and a common seal.

(2)

The Law Society shall consist of the following:

(a)

the President;

(b)

the Vice-President;

(c)

the immediate past President;

(d)

the Secretary;

(e)

the Assistant Secretary;

(f)

the Treasurer; and

(g)

members pursuant to section 13b.

Undang-Undang Malaysia 10

(3)

The Law Society may sue or be sued in its corporate name.

(4)

Subject to and for the purposes of this Ordinance, the Law Society may, upon such terms as the Law

Society deems fit—

(a)

enter into contracts; and

(b)

in respect of movable and immovable property and interest in movable or immovable property of every description—

(i)

acquire, purchase, take, hold and enjoy such property; and

(ii)

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.

(5)

The Constitution and rules of the Law Society shall be as set out in Part VI of this Ordinance.

Common seal. 7b. (1) 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.

(2)

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.

(3)

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.

Ordinan Peguam Bela (Sabah) (Pindaan)

(4)

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.

(5)

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.

(6)

The common seal of the Law Society shall be officially and judicially noticed.

(7)

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 7cSection 7c

(1)

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—

(a)

the Law Society is satisfied that the application complies with that subsection and any rules made under this section;

(b)

the Law Society is satisfied that the applicant is not disqualified from holding a certificate to practise under section 9a;

(c)

the applicant is not in arrears in respect of any subscription or levy lawfully due to the

Law Society under this Ordinance; and

(d)

the applicant intends to practise under an approved name.

Undang-Undang Malaysia 12

(2)

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.

(3)

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.

(4)

Subject to this Ordinance, the Law Society may make rules regulating the issue of Annual Certificates.

(5)

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 7dSection 7d

(1)

Subsection (2) shall have effect in relation to an application for an Annual Certificate made by an advocate—

(a)

after more than twelve months have elapsed since his admission and if he has held no valid certificate to practise during that period;

(b)

who has held a certificate to practise subject to terms and conditions at any time in the three years immediately preceding his application;

(c)

after more than twelve months have elapsed since he held a valid certificate to practise;

(d)

after the Disciplinary Board has ordered a penalty or costs to be paid by him;

(e)

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;

Ordinan Peguam Bela (Sabah) (Pindaan)

(f)

whilst he is an undischarged bankrupt or a receiving order in bankruptcy is in force against him;

(g)

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;

(h)

after having had an order of committal or an order for the issue of a writ of attachment made against him.

(2)

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—

(a)

issue an Annual Certificate; or

(b)

notify the applicant that he is required to make an application to the Court under section 7e.

Applicant to apply to

Court.

s 7eSection 7e

An advocate who is—

(a)

required to make an application under this section; or

(b)

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 7fSection 7f

(1)

The Law Society shall maintain a register of firm names under which advocates practise.

(2)

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.

Undang-Undang Malaysia 14

(3)

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.

(4)

An advocate shall not submit to the Law

Society for registration a firm name that is not—

(a)

his own name or initials of his name;

(b)

the names or initials of the names of advocates who are or were his partners;

(c)

the names or initials of the names of his predecessors whose goodwill he has, or his partners have, acquired; or

(d)

any combination of the names or initials of the names specified in paragraphs (a), (b)

and (c).

(5)

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.

(6)

An advocate who acts in contravention of subsection (5) may be liable to disciplinary proceedings.

(7)

The Law Society—

(a)

shall, at the request of the partners practising under a firm name; or

(b)

may, if it is satisfied that no one is practising under that name, remove a firm name from the register.”.

Ordinan Peguam Bela (Sabah) (Pindaan)

s 11Bahagian baharu IV

Ordinan dipinda dengan memasukkan sebelum seksyen 8

Bahagian yang berikut:

“Part IV

PROVISIONS RELATING TO PRACTICE OF ADVOCATES”.

s 12Pindaan seksyen 8

Seksyen 8 Ordinan dipinda—

(a)

dalam subseksyen (1), dengan memasukkan selepas perkataan “Federal Court” perkataan “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”; dan

(b)

dalam subseksyen (2), dengan memasukkan selepas perkataan “Federal Court” di mana-mana jua terdapat perkataan “or Court of Appeal”.

s 13Pindaan seksyen 9

Seksyen 9 Ordinan dipinda—

(a)

dengan menomborkan semula seksyen yang sedia ada sebagai subseksyen (1);

(b)

dengan menggantikan perkataan “thirty-first” dalam proviso kepada subseksyen (1) yang dinomborkan semula itu dengan perkataan “31st”; dan

(c)

dengan memasukkan selepas subseksyen (1) yang dinomborkan semula itu subseksyen yang berikut:

“(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)

a declaration in writing stating—

(i)

his full name;

Undang-Undang Malaysia 16

(ii)

the name under which he practises or the name of the advocates or the firm of advocates employing him;

(iii)

the principal and any other address at which he practises in Sabah; and

(iv)

that he has not contravened the

Advocates’ Remuneration Rules 1988

[G.N.S. 17 of 1988]; and

(b)

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.

(3)

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.

(4)

Notwithstanding subsection (3), where—

(a)

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;

(b)

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.

(5)

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.

(6)

In this section, “year” means the period from 1 January in any calendar year to 31 December in the same calendar year.”.

Ordinan Peguam Bela (Sabah) (Pindaan)

s 14Seksyen baharu 9a dan 9b

Ordinan dipinda dengan memasukkan selepas seksyen 9

seksyen yang berikut:

“Disqualification for certificate to practise.

s 9aSection 9a

(1)

An advocate shall not apply for a certificate to practise—

(a)

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;

(b)

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

(c)

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.

(2)

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.

(3)

Any advocate who is gainfully employed in accordance with paragraph (1)(c) shall surrender his certificate to practise to the Registrar.

s 9bSection 9b

(1)

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.

(2)

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.”.

Undang-Undang Malaysia 18

s 15Penggantian seksyen 10

Ordinan dipinda dengan menggantikan seksyen 10 dengan seksyen yang berikut:

“Permission to practise in special cases.

s 10Section 10

(1)

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—

(a)

such person has been instructed by a local advocate; and

(b)

having regard to all the relevant circumstances he is of the opinion that it is in the interest of justice so to do.

(2)

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—

(a)

that he has been instructed by a local advocate;

(b)

all relevant circumstances pertaining to the cause or matter in which the applicant intends to appear;

(c)

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

(d)

the special qualifications and experience of the applicant.

(3)

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.

Ordinan Peguam Bela (Sabah) (Pindaan)

(4)

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.

(5)

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.

(6)

The Registrar shall keep a separate roll for the names of persons permitted to practise under this section.

(7)

In this section, “cause or matter” includes any interlocutory or appeal proceedings connected with any cause or matter.”.

s 16Bahagian baharu V

Ordinan dipinda dengan memasukkan sebelum seksyen 12

Bahagian yang berikut:

“Part V

DISCIPLINARY PROCEEDINGS AGAINST ADVOCATES”.

s 17Pemotongan seksyen 12

Ordinan dipinda dengan memotong seksyen 12.

Undang-Undang Malaysia 20

s 18Penggantian seksyen 12a

Ordinan dipinda dengan menggantikan seksyen 12a dengan seksyen yang berikut:

“Disciplinary

Board.

s 12aSection 12a

(1)

A Disciplinary Board is established for the purposes of disciplinary proceedings under this Part.

(2)

The Disciplinary Board shall consist of the following members:

(a)

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;

(b)

the President of the Law Society or the Vice-President of the Law Society as his alternate;

and

(c)

eight advocates of not less than seven years’

standing appointed by the Chief Judge after consultation with the Law Society.

(3)

The members referred to in paragraphs (2)(a)

and (c) shall be appointed for a term of two years.

(4)

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.

(5)

The quorum of the Disciplinary Board shall be three with a member each from paragraphs 2(a), (b)

and (c).

Ordinan Peguam Bela (Sabah) (Pindaan)

(6)

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.

(7)

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.

(8)

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.

(9)

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.

(10 The Disciplinary Board may make rules to regulate its own procedure.”.

Seksyen baharu 12b, 12c, 12d, 12e, 12f, 12g, 12h, 12i, 12j,

12k, 12l dan 12m

s 19Section 19

Ordinan dipinda dengan memasukkan selepas seksyen 12a seksyen yang berikut:

“Power of

Disciplinary

Read on from s 12b

Bahagian VIII

Part VIII

Read on from Bahagian VIII