Bar’s sexual misconduct mechanism faulty, can’t hold inquiries

 

A mechanism by the Malaysian Bar to deal with sexual misconduct adopted more than a decade ago is faulty due to a legal impediment, it was found.

It was learned that the hindrance had caused a case, which was lodged with the Bar over alleged sexual misconduct this year, to not move forward as an inquiry could not be held.

This was despite the Bar maintaining that it has an internal mechanism to deal with sexual misconduct among its members.

It was reported that the Malaysian Bar adopted the sexual misconduct mechanism at its 59th annual general meeting in 2005, which came into force on March 1, 2007.

A legal practitioner with knowledge of the issue told Malaysiakini that a complainant was told the mechanism is faulty and was advised to lodge a separate complaint with the Advocates and Solicitors Disciplinary Board.

“If the (Bar’s sexual misconduct) mechanism was faulty, then this incompetence could cause injustice to the people.

“What if it happens to someone you care about,” he shared with Malaysiakini recently.

“They (Malaysian Bar) are still asking people to use it. The Bar Council even issued a statement to use it (the mechanism).

“If it is invalid, then there is no point for people to go through it, only to get the same result,” the lawyer said.

Bar president: Legal Profession Act doesn’t allow other inquiries

When contacted, Malaysian Bar President Salim Bashir confirmed the Bar’s internal mechanism to deal with sexual misconduct is facing a legal hurdle.

“We do have the sexual harassment complaint mechanisms in the Bar Council, and we have formed a specific committee tasked to meet and guide complainants.

“However, due to legal impediments, we are not able to proceed further in conducting any inquiry on the subject matter,” he said.

Salim (photo) explained that this is because, under the Legal Profession Act (LPA) 1976, only the Legal Profession Disciplinary Board is empowered to carry out an inquiry against members of the Bar.

“Every other action or power to enforce must be derived from the law that provides for it, for example, the Legal Profession Act 1976.

“Currently, that power to conduct an inquiry against members is only bestowed to the Legal Profession Disciplinary Board under the law,” he said.

‘Only one complaint lodged with Bar Council since 2007’

Salim added that the Bar Council undertook a study to look into the possibility of overcoming this gridlock under the LPA.

He declined to reveal when exactly the Bar realised the mechanism was faulty, citing confidentiality rules.

However, he divulged that, on record, there has only been one sexual harassment complaint lodged with the Bar Council since 2007.

In a media statement in June, the Malaysian Bar said it proposed the inclusion of sexual harassment as a defined misconduct in the proposed Legal Profession Bill, which the Bar hoped would be tabled and passed in the Dewan Rakyat this year.

“Such a move would mean that lawyers would also face disciplinary action for allegations of the misconduct of sexual harassment and could face punishments including fines or being struck off the Roll,” the Bar said.

In the same statement, the Bar noted that internally it has in place a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, adopted at its 59th Annual General Meeting.

The Bar said this created a mechanism for the resolution of complaints for Members of the Bar and pupils within the legal profession, and in dealings with the Judiciary and the courts. - Mkini