We are honoured to be invited by the Dean of the Law Faculty of Univeristy of Malaya, Professor Abu Bakar Munir, to attend one of his public letcures, entitled “Data Protection Law: Too Little, Too Late?” on 4 August 2009.

Professor Abu Bakar Munir & Eddie Law

Below is the power point slide presentation used by Prof Abu Bakar Munir during the lecture:

Synopsis of Lecture

After a long wait of more than a decade, on 17 June 2009, the Deputy Minister of the Information, Communication and Culture announced in Parliament that the Personal Data Protection Bill is to be presented for the first reading in October 2009. The Deputy Minister stated, “We are determined to get it done this year. This Act is vital in protecting our privacy and to safeguard personal information”. This law affects almost every individual and organization, public or private, as data is the ‘bread and butter’ of an organization. The law also gives certain rights to individuals whose data are collected. This talk provides an overview of the international data protection instruments. It discusses the approaches adopted by the different jurisdictions in protecting personal data. In conclusion, it elaborates on the salient features of a data protection law and its effects and impact on an organization.

Speaker’s Profile

Abu Bakar Munir is an internationally renowned scholar, expert and consultant on ICT Law and data protection. He is a Professor of Law and the former Dean of the Faculty of Law, University of Malaya. He is the author of several books; Privatisation (1992), Cyberlaw: Policies and Challenges (1999), Privacy and Data Protection (2002), Internet Banking: Law and Practice (2004) and Information, Communication and Technology Law (2009) (in print). He has published articles widely on ICT Law, Air and Space Law and Nanotechnology Law. He speaks extensively at conferences around the globe including those organized by universities such as the Oxford, Cambridge and MIT.

Professor Abu Bakar Munir has been widely consulted by governments and private entities around the world. He was seconded as the IT Law Adviser and Principal Consultant to the Government of Dubai, UEA where he led an international team of consultants in developing and drafting several IT legislation to facilitate the Dubai Internet City, a multi-billion dollar IT project. He is currently the Adviser to the Government of Malaysia on data protection. Since 2007, he has been actively involved and instrumental in developing and drafting the above-mentioned Bill. He is also an Adviser to the Government of Indonesia and has recently completed drafting the Personal Data Protection Bill for the Republic.

He is a member of the United Nations ICT Policy and Internet Governance Working Group and a Council Member of the Asia Pacific Privacy Charter Council (APPCC). He is also an Expert to the Amicus Legal Consultants Ltd. London and an ICT Law Consultant to Dr. Colin Ong Legal Services, Brunei Darussalam. He is affiliated to many other organizations and is also a Visiting Professor at several universities, nationally and internationally.

Written by RODNEY KHOR

The legal profession has always been a highly regulated profession with rules, regulations and codes of conduct binding on members of the profession1. This comes as no surprise due to the nature of the legal profession being very interconnected with the mechanisms of the working of law itself. The general duties among other things include a duty to assist the courts in the administration of justice and this duty overrides the duty towards lay clients.

Despite the profession being highly regulated, there are circumstances that would warrant or attract a foreign practitioner2 to practise law in countries such as Malaysia3. Therefore, this article is narrowed down to concentrate on identifying the possibility for a foreign practitioner to practise law or to provide in-house legal advice in Malaysia.

The admission of legal practitioners in Malaysia is governed by section 114 of the Legal Profession Act 1976 (hereinafter referred to as the Act). The requirements under this section amongst other things require a qualified person5 not to have been convicted in Malaysia or elsewhere of a criminal offence that would render him unfit to be a member of his profession or done any other act which, if being a barrister or solicitor in England, would render him liable to be disbarred, disqualified or suspended from practice. These requirements, one way or another, are common due to
the standard expected of potential legal practitioners.

In addition, he must either be a citizen of Malaysia or a resident of Malaysia and has satisfactorily completed the prescribed period of pupillage6. If a qualified person were to petition to the High Court to be admitted as an advocate and solicitor, there is a requirement that he has passed or is exempted7 from the Bahasa Malaysia8 Qualifying Examination9. This is the main route for admission amongst private legal practitioners in Malaysia10.

The difficulty that most foreign practitioners would face is the requirement under section 11(c), requiring them to be either a citizen or a resident of Malaysia and the Bahasa Malaysia Qualifying Examination requirement under section 11(2). In addition, a foreign practitioner would have to undergo a minimum prescribed period of pupillage of 3 months11. There are limited exceptions12 to this and if the requirements are not satisfied, a foreign practitioner will not be able to gain right of audience in the Malaysian courts13. An established foreign practitioner with many years of experience may find the requirements for pupillage discouraging. However, despite their experience, this requirement is meant to expose them to the Malaysian legal procedures14.

However, the exception that is normally applicable to a foreign practitioner being instructed to appear for a particular case is the admission in special cases under section 18 of the Act. This section enables a foreign practitioner to practise as an advocate and solicitor in Malaysia for a particular case15. However, the court must be of the opinion that for the purpose of the particular case, the foreign practitioner has special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia and has been instructed by an advocate and solicitor in Malaysia16.

Cherie Booth QC, attempted to rely on section 18(1) applied for an ad hoc admission into the Malaysian Bar after being instructed to appear for a particular case. However, the application was refused by the High Court Kuala Lumpur and it was subsequently appealed to the Federal Court17. The judgment of the court considered the requirement of ‘special qualifications or experience’ by referring to established judicial precedents in Malaysia18. The court subsequently concluded, “special qualifications and experience under section 18(1)(a) of the LPA refers to the particular field of the law which that particular case is related and not in respect of each and every issue that arises in that case19”.

Therefore, if a foreign practitioner is in possession of the requisite qualifications or experience in a particular field of law that is relevant to the particular case that he intends to appear, then he would have satisfied the first requirement under section 18(1)(a) of the Act. However, the second requirement under same section must be satisfied in addition to the first. The special qualifications and experience must not be available amongst advocates and solicitors in Malaysia.

The Federal Court20 subscribed to the observation on the words ‘not available’ by Sharma J in Re S.K. Lee21. The special qualifications or experience that is required under section 18(1)(a) must be of a high degree of quality and type which cannot be found in local lawyers. Therefore, a foreign practitioner will have to persuade the Court22 that his special qualifications and experience satisfies both requirements.

An alternative to practising as an advocate and solicitor in Malaysia is to provide in-house legal advice23. This is a viable alternative for foreign practitioners because the procedures24 are not as stringent comparatively with the former if an arrangement for employment has been secured25. The limitation that most foreign practitioners would have is the knowledge and experience with regard to relevant local laws. However, foreign practitioners with multi-national legal experience may find their legal knowledge and experience useful in assisting companies in their international transactions or investments.

In summary, there are 3 main methods for a foreign practitioner to enter the legal profession in Malaysia. The first method is to gain admission as an advocate and solicitor in Malaysia via the normal route that local practitioners use. However, the difficulty faced under this method may either be due to the language requirement or the residency requirement. The second method is to obtain special admission in particular cases. However, the difficulty that a foreign practitioner will face is to satisfy the requirements under s.18(1) of the Act. Additionally, admission under this route will only be permitted for that particular case. It is therefore not a viable long-term consideration. The third method would be to gain employment to provide inhouse legal advice. Although a foreign practitioner may not practise law locally under this route, he may nonetheless enter the legal profession in Malaysia without the difficulties faced by the previous methods.

Despite the difficulties faced by foreign practitioners to gain admission into the Malaysian Bar, the legal profession in general whether as a practitioner or an inhouse legal advisor has always been a challenging career. This is due to the continuing need to be updated with regard to changes in the law. The law is not stagnant and is ever changing with times, circumstances and society. Therefore, if a foreign practitioner truly does have the passion to practise law in Malaysia, then the methods considered above are worth a consideration.

______________________________________________________________________________________
Footnote:
1 Barristers-at-law are being regulated by the Bar Council (Today, a separate and independent
regulatory body known as the Bar Standards Board regulates barristers-at-law in England and Wales)
and solicitors being regulated by the Law Society. In a country with a fused profession, the regulatory
body may either be the Bar Council such as Malaysia or the Law Society such as Singapore.

2 A foreign practitioner for purposes of this article is defined as a practitioner in possession of legal
qualifications and right of audience outside Malaysia.

3 The legal profession in Malaysia is a fused profession and is governed by the Bar Council. A legal
practitioner in Malaysia is known as an Advocate and Solicitor.

4 s.1(1) Legal Profession Act 1976 is subject to s.14.

5 s.3 of the Act states that “a ‘qualified person’ means any person who (a) has passed the final
examination leading to the degree of Bachelor of Laws of the University of Malaya, the University of
Malaya in Singapore, the University of Singapore or the National University of Singapore; (b) is a
barrister-at-law of England; or (c) is in possession of such other qualification as may by notification in
the Gazette be declared by the Board to be sufficient to make a person a qualified person for the
purposes of this Act.” The Legal Profession Qualifying Board may require foreign practitioners with
certain qualifications to sit for the Certificate in Legal Practice before satisfying paragraph c above.
There are requirements that must be satisfied to sit for the Certificate in Legal Practice. Visit
www.malaysianbar.org.my/admission_requirements.html to determine the entry requirements.

6 See s.12 of the Act on the period of pupilage. However, s.13(3) provides exemption for a qualified
person from any period up to six months subject to the Bar Council’s sole discretion upon satisfactory
evidence that the applicant has amongst other things, engaged in active practice as a legal practitioner by whatever name called in any part of the Commonwealth for a period of not less than six months.

7 A qualified person may be exempted by the Legal Profession Qualifying Board by virtue of s.5(f) and
11(2) of the Act if he has obtained at least a credit in Bahasa Malaysia for his Sijil Pelajaran Malaysia

8 Translated in English to mean Malaysian language

9 s.11(2) of the Act.

10 Whether being admitted by virtue of being a qualified person due to a recognised degree in law from
a local public institute of higher learning, a barrister-at-law in England, or being in possession of any
other qualifications that is recognised by the Qualifying Board such as a Certificate in Legal Practice or
a Solicitor of the Supreme Court of Judicature, England.

11 The period of 3 months is based on the maximum exemption possible under section 13 of the Act.

12 The only exceptions are the admission in special cases under s.18 of the Act and special admission
certificates issued by the Attorney General under s.28B of the Act.

13 This includes the High Courts and Subordinate Courts.

14 There is also a similar requirement on pupillage amongst other things to admit qualified foreign
practitioners into the Bar of England and Wales under Regulation 36 of the Consolidated Regulations
of The Inns of Court and The General Council of The Bar (November 2008). However, the Transferring Qualified Lawyers Panel of the Qualifications Committee may exempt the applicant from
all or part of the requirements for pupillage.

15 s.18(1), Notwithstanding anything contained in this Act, the Court may, for the purpose of any one
case and subject to the following subsections, admit to practise as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in, Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court.

16 s.18(1)(a) and (b) of the Act.

17 Cherie Booth QC v. Attorney General, Malaysia & 5 others, 2006 [FC]

18 Para. 13 – 15, Ibid.

19 Para. 17, Ibid.

20 Para. 19, Ibid.

21 (1971) 2 MLJ 40

22 The court will consider the relevant issue in the particular case in light of the applicant’s special
qualifications and experience.

23 However, a foreign practitioner providing in-house legal advice who has not been admitted as an
advocate and solicitor in Malaysia will not be able to represent himself as being a qualified practitioner
to practise law locally. The limitations on foreign practitioners are limited to providing in-house legal
advice and not perform any act that would contravene s.37 of the Act.

24 For the procedures, visit http://www.imi.gov.my/eng/perkhidmatan/im_PegawaiDagang.asp

25 An arrangement for employment with a Malaysian law firm may be applicable if the requirements by
the Immigration Department of Malaysia are satisfied. However, the limitations under s.37 of the Act
will still apply because an employment with a Malaysian law firm does not necessarily enable a foreign
practitioner to represent himself as being a qualified practitioner to practise law locally.

Do you want to work in law firm but without a law degree?

The Malaysian Academy of Legal Secretaries (MALS) has now worked together with the Human Resources Ministry to provide free training for fresh graduates, unemployed youth and retrenched workers to become legal secretaries for the law firms and banking institutions.

Not only the tution fees for the legal training course is FREE, Human Resources Ministry will further provide allowances ranging from RM500 to RM800 for participants.

Based on the reports on various newspaper, below are the brief summary about the course:

1. Name of the certificates: Sijil Litigasi Perbankan & Sijil Conveyancing Perbankan

2. Duration: 4 months

3. Commencement of Course: 15 June 2009

4. Location: Semua House in Kuala Lumpur

5. Age limit: 17 - 45 years old (but those who are above 45 years old and being retrenched can also apply for the course)

6. Qualification: minimum Sijil Pelajaran Malaysia (SPM)

7. Admission limitation: 200 participants for the 1st batch (however, they aim to produce 1,000 legal secretaries via their course by end of the year)

8. Topics to be covered: litigation, loan recovery and land ownership transfer

9. Contact: Mr.Mohan（012-3984444) or Cik Mariana（012-2995541) or register with the Human Resources Ministry (www.JobMalaysia.gov.my) or contact the academy via e-mail at mals.fzalegal@gmail.com.

MALS managing director, Fatimah Zainuddin said:

1. there are about 500 vacancies for legal secretaries in the Malaysia

2. the starting salary for legal secretaries is RM1,200 - RM1,500 and with good performance, the salary can raise to RM5,000 in 10 years time

3. MALS will try to help the particpants to secure jobs

eLawyer deems this is a good move and new development in the legal career in Malaysia. However, we doubt if the salary can raise up to RM5,000 within 10 years, in particular, for secretaries work in law firms.

The KL Bar Young Lawyers Committee and the KL Bar Professional Development Commitee have jointly organised The Young Lawyers Speed Track Legal Practise Management Course 2009 on 22 May 2009.

The course is aimed to equip young lawyers with the essential practise management skill and knowledge in various fields of practice.

We has set up our booth during the 1 day conference and our founder, Mr Eddie Law was also one of the speakers for conference, who spoke on “Using Technology in Malaysian Legal Practice”.

Eddie told the participants that Malaysian law firms ”under-use” technology in managing their practice. Apart from using technology to manage daily legal practice, in fact, law firms in Malaysia can take the advantage of internet, to seek for free legal resources available online and, to build branding of the law firm online and being easily found in the search engine. How overseas law firms are using social networking sites to create strong online presence.

When talking about Facebook, he told that lawyers in Australia and New Zealand had successfully persuaded the court to allow them to use Facebook to serve legal documents to the parties involve, e.g. Summon and notification.   

The conference was well attended with about 80 lawyers.

 The Chairman of KL Bar Young Lawyers Comittee, Mr Lai Chee Hoe and Eddie.

On May 6, we were told by one of our readers that the law graduates of Malaysia Multimedia University (MMU) is now exempted from the Certificate of Legal Practise (CLP) Exam. In fact, the reader came to know about this from a student’s blog .

After doing some preliminary verification, we immediately posted a thread at eLawyer Facebook announcing this ”gospel”. To our surprise, in less than 2 days we received a total of 22 comments on the thread which consist of mixture feedback (some welcome, some disappointed, some happy about it and some were upset comments).

On 14 May, based on a reliable unofficial source, MMU have in fact received the exemption letter from the Legal Profession Qualifying Board few weeks ago. They have communicated this information to the existing students. However, till today there is yet any official announcement on this matter. We believe this is due to the fact that such exemption is only effective and valid after the same have been gazetted per Section 3 of the Legal Profession Act, like what happen in UUM case.  

We were further told that such exemption will be reviewed by the Legal Profession Qualifying Board every 2 years.

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Have you ever think of the consequence of posting unfavourable comment about someone or some issues on your blog even though you are fully aware of your right to voice your opinion?

Recently the newly appointed Minister of Information, Communication and Culture Datuk Seri Dr Rais Yatim, was quoted by the Sun (April 16, 2009) as saying that: “Bloggers who “twist the truth” should face the music and be held accountable…”.

The Communications and Multimedia Act 1998 (Act 588) was specifically quoted by Datuk Seri Dr Rais Yatim as crucial law governs the rights of people to communicate through the Internet. Therefore, it is worthwhile to look at the general offence for giving false and misleading statement in the said Act 588 which stated clearly that a person who knowingly gives false information, commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both.

In additon, Malaysian bloggers should also take note of other legislations which frequently used by the Government to “go after” bloggers such as the Sedition Act 1948 (Act 15), the Internal Security Act 1960 (Act 82) and Defamation Act 1957 (Act 286). One good example is Raja Petra’s detention without trial under the draconian Internal Security Act which has drew sharp criticisms from politicians and civil rights activists. Raja Petra was charged in a sessions court here under Section 4(1)(c) of the Sedition Act 1948 with publishing a seditious article titled “Let’s Send the Altantuya Murderers to Hell” in his blog www.malaysia-today.net on April 25, 2008.

Another instances, after the arrest of Raja Petra, Abdul Rashid Abu Bakar was arrested on 7 August, 2008 under Seditions Act in Malaysia is whose blog is Penarik Beca (trishaw peddler).

Although Datuk Sei Dr Rais Yatim emphasized that the government is not looking to find faults on bloggers and internet users but rather wants them to adhere to the guidelines and law to make sure the internet which acts as an alternative media, was not misused or exploited.

Therefore, it is advisable for bloggers to ensure the content of their blog is true and accurate as stated clearly by a lawyer cum blogger, Mr. Nizam Bashir during a talk about Blogging & Law organised by us, elawyer, on 14 March, 2009 that: “the strongest defence for defamation is justification. If you express an opinion or the facts are reasonably accurate and it is published in the interest of the public then it is acceptable.”

Please click eLawyer Blogging & Law Conference 2009 for more information. You may order the DVD here.

If you still remember there was a big cry foul over CLP ruling by the UUM law graduates in September 2008. After we have reported it, we have received an open letter written by an annonymous reader (believing to be one of the UUM law graduate) highlighting his/her plight pending the completion of the recognisation process of UUM law degree by the Legal Profession Qualifying Board (LPQB).

This morning, we have again received a comment posted by one of our reader, Ani Munirah, about the recognisation of the UUM law degree by the LPQB.

We reproduce the press statement below (together with the English translation version):

KENYATAAN AKHBAR PADA 23/4/2009

Adalah dimaklumkan bahawa pengiktirafan program Ijazah Sarjana Muda Undang-undang (Kepujian), oleh Lembaga Kelayakan Profesion Undang-undang, Malaysia telah pun diwartakan pada 16 April 2009 dalam warta kerajaan P.U.(B)119 berkenaan pemberitahuan di bawah Seksyen 3 Akta Profesion Undang-undang 1976 [Akta 166].

Notifikasi ini melayakkan pelajar Undang-undang yang telah tamat pengajian Ijazah Sarjana Muda Undang-undang (Kepujian), Universiti Utara Malaysia untuk menjalani latihan guaman mereka (chambering) bermula pada tarikh tersebut.

Universiti Utara Malaysia mengucapkan ribuan terima kasih kepada semua pihak yang telah memberikan kerjasama dan sokongan dalam usaha untuk mendapat pengiktirafan profesional ini.

Daripada:
Prof. Madya Dr Asmah Laili Hj Yeon
Penolong Naib Canselor
Kolej Undang-undang, Kerajaan dan Pengajian Antarabangsa
Universiti Utara Malaysia

PRESS STATEMENT on 23 April 2009 (English transalation)

This is to inform that the recognition of Law Degree (Honours) programme by the Legal Profession Qualifying Board Malaysia have been gazetted on 16 April 2009 in government gazette P. U. (B)119 pertaining to notification under Section 3 of the Legal Profession Act 1976 [Act 166].

This notification qualifies law student who has completed from the Law Degree (Honours) from University Utara Malaysia to undergo pupilage in chamber starting from the date mentioned herein.

University Utara Malaysia express thousands gratitude for those who have rendered cooperation and support in the effort of obtaining this professional recognition.

From:
Associates Professor Dr. Asmah Laili Hj Yeon
Assistant Vice-Chancellor
College of Law, Government and International Studies
Universiti Utara Malaysia

We have further made a call to UUM and have spoken to one of the officer who verified that the press statement was indeed true and we were informed that the same was also reported by 2 local Malay newspaper Kosmo on 18 April and Sinar Harian on 19 April 2009.

You may also read more about this news in the PROUUM Online.

Under section 10 of the Legal Professiona Act:
” The High Court may at its discretion and subject to the Act admits as an advocate and solicitor of the High Court - (a) any qualified person; and (b) any articled clerk who has complied with section 25…”

Section 3 of the Act defines the “qualified person” as any person who-
“(a) has pass the final examination leading to the degreee of Bachelor of Laws of the University Malaya, the University of Malaya in Singapore, the Univeristy of Singapore or the National University of Singapore;

(b) is a barrister-at-law of England;

(c) is in possession of such other qualification as may by notification in the Gazette be declared by the Board to be sufficient to make a person a qualified person for the purpose of this Act”

As such, this case is likely to fall under section 3 (c) of the Act and the relevant UUM law graduates may need to wait for the LPQB to declare them as qualified person before they can proceed to undergoing pupilage in chamber.

Based on our understanding, there were 3 batches of law graduates from UUM thus far. Is this meant that all the previous and future UUM law graduates with honours degree are now qualified to undergoing pupilage in chamber without the need to pass the CLP Exam? or it only applies to the law students who graduate after the gezzatted date?

 ”The event is the 1st of its kind that I have attended…”. “Been useful…” “…it was a great conference”. “I missed the conference…” “Eddie, the event was a great success…”.

These are the feedback that we received from the participants who came to our law conference on last week.

Below are some brief report of the event.

We arrived at the law faculty of Univeristy of Malaya (UM) about 8.15am. It was a raining morning and the KL gate of UM was congested as many activities were held in the UM campus on the same day.

“Debbie was conducting briefing with the usherers before the guest arrival.”

 ”Our professional usherer was ready to welcome our guest of VIP.”

“Registration started at 9am…a busy morning ahead for our usherers”

“Counter getting busier and crowded”

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(Click the poster for bigger image)

Anyone can blog. Anyone can also blog and get sued or sometimes facing the threat of being sentenced to spend years in jail.

It is however, understandable that not every blogger is well versed with the law, and therefore don’t know their rights and liabilities. Here are a few examples of which you may be able to relate to:

- Is it against the law when I link to other blogs?
- What should I do if someone claims that I have infringed his or her copyrights?
- Do I have rights to ask someone to remove the link to my blog?
- Can I use pictures found in other websites or google images?
- If I found out others have defamed me in their blogs, what should I do?

This is the reason eLawyer.com.my brings you the eLawyer Law Conference 2009, themed “Blogging and Law”. It is our sincere hope that bloggers will have the sufficient legal awareness in them that they are able to protect themselves in case of defamation claim or accusations of copyright infringements.

The details of the conference are as follows:

Theme: Blogging and Law
Date: 14 March 2009
Time: 9.30am – 12.30pm
Fees: F.O.C.
Venue: Auditorium Tun Mohd Suffian, UM Law Faculty

Topic 1: Blogging & Intellectual Property Law in Malaysia (By Mr. Foong Cheng Leong, KL Lawyer & Blogger)

You will learn about:
1. Is it against the law when I link to other blogs?
2. What should I do if someone claims that I have infringed his or her copyrights?
3. Do I have rights to ask someone to remove the link to my blog?
4. Can I use pictures found in other websites or google images?
And many more…

Topic 2: Blogging & Defamation Law in Malaysia (By Mr. Nizam Bashir, Malacca Lawyer & Blogger)

You will learn about:
1. What amount to defamatory statement?
2. What should I do if someone claims that the content of my blog defames him?
3. If I have found out others have defamed me in their blog, what shall I do?
4. What are the remedies available for defamation action?
And many more…

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