By ROGER CHIN
COMMENT: The Sabah Law Society (“SLS”) is gravely concerned by the recent amendments to the Arbitration (Amendment) (No.2) Act 2018 which came into force on 8th May 2018.
The new section 3A of the Arbitration (Amendment) (No.2) Act 2018 on “Representation” states that: “Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by any representative appointed by the party”.
In a book recently published entitled, “UNCITRAL Model Law & Arbitration Rules”, the author describes the development of arbitration in Malaysia and how the new Section 3A was inserted to provide for parties’ freedom to choose any representative, not just a Malaysian lawyer or any foreign lawyer, to advise and represent their case in arbitral proceedings.
The author went further to say that the new Section 3A would allow parties to arbitrations seated in Sabah or Sarawak to be represented by foreign legal representatives or West Malaysian legal practitioners. The book expressly states that the new Section 3A can be utilised by parties to arbitrations in Sabah and Sarawak to choose their own representation in arbitrations.
The SLS believes that the new Section 3A should not be used as an attempt to circumvent the provisions of Section 8(1) of the Sabah Advocates Ordinance (Cap 2) which gives the exclusive right to advocates who are registered under the Sabah Advocates Ordinance to practice in Sabah.
SLS stresses that this is an exclusive right, which is protected under Article 161B of the Federal Constitution. These safeguards and assurances provided to Sabah were critical and pivotal to secure the participation of Sabah in the formation of Malaysia. Any such attempt would be an erosion of this exclusive right given to Sabah, and would thus be an infringement of the constitutional rights of Sabah.
Further, in the Federal Court case of Samsuri bin Baharuddin & Ors v Mohamed Azahari bin Matiasin and another  2 MLJ 141, the Federal Court held that Section 8(1) of the Sabah Advocates Ordinance gives Sabah advocates the exclusive right to represent a party in arbitration proceedings in Sabah and that this statutory right cannot be taken away.
This Federal Court decision is the authority for the proposition that an outside counsel intending to appear in an arbitration proceeding seated in Sabah would have to apply for ad-hoc admission based on merits. If the court grants the application, that outside counsel needs to apply for work pass.
Section 3A of the Arbitration Act does not in any way affect the operation of Section 8 (1) of the Advocates Ordinance as decided by the Federal Court.
Section 3A is merely a general provision which allows representatives in arbitration proceedings but in no way overrides other laws including Section 8 (1) of the Advocates Ordinance giving exclusive right to Sabah lawyers to practise inside or outside court including arbitration and which is a specific law governing the right of representation given to lawyers of Sabah.
Ad-hoc admission is still required if the representative is a legal practitioner performing his duty as an advocate and that person must also obtains a work pass pursuant to the Immigration Act.
The SLS was never consulted in regards to the proposed amendment to the Arbitration (Amendment) (No.2) Act 2018. The SLS and all other relevant stakeholders in Sabah must be consulted on all amendments to the law affecting Sabah and especially those affecting its rights under the Federal Constitution.
* Roger Chin is President of the Sabah Law Society