The ASEAN Charter and the ASEAN Lawyers 11 th GENERAL ASSEMBLY 2012 ASEAN LAW ASSOCIATION 14-19 February 2012 Nusa Dua, Bali, Indonesia President of the ASEAN Law Association; Presidents of the national chapters of the ASEAN Law Association; Members of the panel; Distinguished guests; Ladies and gentlemen; It is a pleasure and an honour for me to have been provided this opportunity to address such a distinguished audience in this workshop entitled The ASEAN Charter and the ASEAN Lawyers. It is made more pleasurable that I am doing so on this lovely balmy and exotic island of Bali. I. Introduction 1. The term ASEAN lawyer is one that has yet to be given definitive content and recognition. Save when we gather at a conference such as this, we are more likely to identify ourselves as lawyers from our separate countries, rather than the grouping known as ASEAN. For most of us, unlike perhaps for many of our counterparts in Europe in relation to the European Union, ASEAN features peripherally, if at all, in our daily practice of the law. This could change. 2. Whether or not the idea of an ASEAN lawyer flourishes would in some respects, depend on where ASEAN as an organisation is headed in terms of its substantive impact, structure and processes. In this respect, the development of ASEAN has been given fresh impetus by the adoption of the ASEAN Charter in 2007. 3. Concurrently and in line with agreements such as the World Trade Organisation s General Agreement on Trade and Services ( GATS ) and the
2 ASEAN Free Trade Agreement ( AFTA ), some ASEAN countries have lowered or are taking steps to lower barriers to entry into the legal services industry for foreign lawyers, thereby increasing opportunities for cross-border practice. 4. Those lawyers who choose to take up the opportunities offered by such liberalisation and developments in ASEAN at this stage may well acquire skills and expertise that will benefit them in a new era of ASEAN. Conversely, those who ignore such developments and hold on to the known and limited, may find themselves at a disadvantage in the future. 5. This paper has modest aims. I will first locate the various roles of lawyers in the ASEAN community, so as to give some meaning to the term ASEAN lawyer and to indicate where experience may be obtained and opportunities found. Secondly, I would like to share how Malaysia is opening up its legal services industry to foreign lawyers a development that will not only provide opportunities to foreign lawyers, but will perhaps spur Malaysian lawyers to seek opportunities elsewhere in the region as well. II. The ASEAN Charter 6. ASEAN was established by the ASEAN Declaration signed in Bangkok on 8 August 1967 by the 5 founding member States, namely, Indonesia, Malaysia, Philippines, Singapore and Thailand. It contained just 5 Articles which:- (a) (b) declared the establishment of ASEAN; set out in simple words the aims and objects of ASEAN which include the promotion and maintenance of regional peace and stability, the acceleration of economic growth, social progress and cultural development, and affirmed active mutual cooperation and collaboration of the member States in economic, social, cultural, technical, scientific
3 (c) (d) (e) and administrative fields; to maintain close and beneficial cooperation with international and regional organisations; established the machinery to carry out the aims and objectives of ASEAN; provided for admission of all other States in South East Asia which subscribes to the aims, principles and purposes of ASEAN; declared that the Association represents the collective will of the ASEAN nations to bind themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity. ASEAN became complete later when Brunei, Vietnam, Lao, Myanmar and Cambodia joined as members. 7. ASEAN became a vehicle for bringing together the countries of South East Asia, and it rapidly grew in its regional role and international importance. It established several accords and agreements amongst its member States affirming and evolving its aims and objectives, and setting out structures, principles and processes to promote and achieve ASEAN s aims and purposes. 8. Two such accords were the Bali Accord 1976 and Bali II Accord 2003 which provided for the establishment of an ASEAN Community. Pursuant to this, three communities were established: the (i) ASEAN Security Community; (ii) ASEAN Economic Community; and (iii) ASEAN Socio-Cultural Community. The purpose was to ensure durable peace, stability and shared prosperity with a view to realising an integrated ASEAN Community in all these spheres. It is also a fundamental tenet of ASEAN that any and all differences and disputes are to be resolved through peaceful means. 9. ASEAN also became important for its members as a focal organisation for economic linkages with the world economy and dealings with other
4 organisations or regional blocks. However, ASEAN did not have a formal legal structure and was not a legal entity. 10. Thus, the ASEAN Charter was established and agreed to by all member States of ASEAN on 20 November 2007. The ASEAN Charter provided for the legal and institutional framework of ASEAN, and breathed life into ASEAN as a legal entity. The ASEAN Charter has also formalized and/or established the following:- (a) (b) (c) (d) (e) (f) (g) (h) ASEAN Summit comprising the Heads of States ASEAN Coordinating Council comprising the Foreign Ministers ASEAN Community Councils consisting of (i) ASEAN Political- Security Community Council; (ii) ASEAN Economic Community Council; (iii) ASEAN Socio-Cultural Community Council. Each ASEAN Community Council shall comprise the relevant ASEAN Sectoral Ministerial Body ASEAN Sectoral Ministerial Bodies Secretary General of ASEAN Committee of Permanent Representatives ASEAN Human Rights Body ASEAN Foundation 11. Given the emergence of the ASEAN Charter, the legal structure of ASEAN now requires numerous processes, procedures, and mechanisms to be formalised, and for rules and regulations to govern the same. 12. There is nothing in the ASEAN Charter which specifically provides for the role of lawyers practicing in ASEAN countries. That is not surprising. But the Charter, in its framework, the institutions envisioned by it and the intent behind it, will require the contribution of lawyers. This is so particularly if ASEAN intends to have substantive impact.
5 III. The Role of ASEAN Lawyers within ASEAN ASEAN Lawyers and ASEAN 13. The Secretary General of ASEAN had in the course of his keynote address at the ASEAN Law Association ( ALA ) 10 th General Assembly in Hanoi stated that:- (a) (b) (c) ALA is listed as an associated organization to ASEAN ASEAN Law Ministers Meeting is entrusted to work with ALA Invited ALA to set up a joint task force/working group with ASEAN Secretariat to ascertain how ALA may contribute and work within the ASEAN framework 14. Pursuant to the above request from the Secretary General of ASEAN, ALA has requested representatives from the various ALA National Chapters for this joint task force. 15. As can be seen from the speech of the Secretary General of ASEAN and the contents of the ASEAN Charter read together with all the previous treaties, accords and agreements of ASEAN (which are expressly preserved and kept in force by Article 51 of the ASEAN Charter), there are numerous areas in which ALA and its members may lend legal assistance. Examples are:- (a) Assist and advise on the setting up of the ASEAN Human Rights Body, its structure, objectives, constitution, procedures etc; (b) Assist and advise on the setting up of the ASEAN Foundation; (c) Assist and advise on setting rules of procedure for meetings of the ASEAN Community Councils to be adopted by the ASEAN Coordinating Council (see Article 7(2)(c));
6 (d) Assist in the work of the various ASEAN Community Councils:- (i). The various ASEAN Community Councils have varied initiatives and programmes that would require legal input. Examples are:- promotion of greater regional mobility and mutual recognition of professional credentials under ASEAN Socio-Cultural Community Council. ALA can assist in advising how this may be realized and advice on a legal framework to enable such mutual recognition; assist on issues arising from ASEAN Framework Agreement on Services (AFAS), ASEAN Investment Area (AIA) or ASEAN Free Trade Area (AFTA) under the ASEAN Economic Community Council as many legal issues arise in these areas; mechanisms for settlement of disputes and differences under the ASEAN Political-Security Community Council; (e) Assist and advise the ASEAN Community Council on its rules of procedure (see Article 21(1)); (f) Assist and advise ASEAN Secretariat on human resource and legal issues; (g) Assist and advise on conciliation and mediation procedure and structure under Article 23; (h) Assist and advise on the various types of dispute resolution mechanisms and procedures that maybe specifically provided in specific ASEAN instruments under Article 24(1);
7 (i) Assist and advise on rules of procedure for dispute resolution under the Treaty of Amity and Cooperation in Southeast Asia where the dispute does not concern interpretation or application of any ASEAN instrument (see Article 24(2)); (j) Assist and advise on the ASEAN Protocol on Enhanced Dispute Settlement Mechanism where the dispute involves interpretation or application of ASEAN economic agreements under Article 24(3); (k) Assist and advise on general dispute settlement mechanisms that may be put in place for disputes concerning the interpretation or application of the ASEAN Charter and other ASEAN instruments where there are no mechanisms specifically provided for (see Article 25); (l) Although it appears that there may be several dispute settlement mechanisms referred to in Articles 24 and 25 of the ASEAN Charter for different purposes (not counting the mediation provision under Article 23), the ASEAN lawyer could assist and advice as to possibility and viability of having only one or two standardized dispute settlement mechanisms. Where disputes remain unresolved after undergoing any of the dispute settlement mechanisms, such disputes shall be referred to the ASEAN Summit for its decision (see Article 26). 16. These areas listed above identify where lawyers or those with training, expertise and knowledge in law are needed today in ASEAN. In this sense The ASEAN lawyers take on a wider and general definition, encompassing within it lawyers in private practice, lawyers in government service, academics and members of the judiciary. It can be readily seen that the areas listed above may conveniently be divided into two areas in which the ASEAN lawyers so defined could assist:- (a) Internal Organisation and Management
8 The areas identified in paragraphs 17(a) to (f) relate to the inner workings of ASEAN and its secretariat. The establishment of rules, regulations and procedure structured to facilitate the operation and functioning of ASEAN as an organisation and its constituent bodies like its Coordinating Council, the 3 Community Councils, the Sectorial Ministerial Bodies the natural province of lawyers; (b) Conciliation, Mediation & Dispute Resolution The provisions relating to dispute resolution listed in paragraphs 17(g) to (l) reinforce the founding principles of cooperation and amity of ASEAN member States for the promotion and maintenance of regional peace and stability. It is a practical recognition that even the best of relationships may encounter difficulties and at the same time re-affirms its commitment to resolve all disputes peacefully. The role of the ASEAN Lawyer is not necessarily confined to advising on rules and procedure for dispute resolution within the ASEAN structure. Three examples of this are: (i) Malaysia s dispute with Singapore on what Malaysia calls Pulau Batu Puteh and what Singapore calls Pedra Branca. This dispute was taken before the International Court of Justice sitting in the Peace Palace at the Hague in 2007. Malaysia s counsel in the proceedings included the Attorney General of Malaysia, Sir Elihu Lauterpacht QC, Mr James Crawford SC, several foreign counsel and persons from the Attorney General s Chambers. Singapore s team included its Deputy Prime Minister, the Attorney General of Singapore, the Chief Justice of Singapore, Mr Ian Brownlie QC, foreign counsel and persons from the Attorney General s Chambers. There is every reason to hope that such a dispute might, in the future, be referred to an ASEAN dispute resolution body, with ASEAN counsel taking centre stage.
9 (ii) The competing territorial claims in the South China Sea between some ASEAN countries, and with China, for example, in respect of the Spratly Islands. By same token, if ever such claims require resolution, such resolution could be undertaken by an ASEAN mechanism with participation of ASEAN lawyers at all levels; (iii) The territorial disputes between Thailand and Cambodia in the area surrounding the Preah Vihear temple might likewise be resolved by a strong ASEAN mechanism and with the participation of ASEAN lawyers at all levels. 17. These examples are not exhaustive of the role of ASEAN lawyers. There is of course the external functioning of ASEAN, for instance, in its dealings with countries, international organisations, or political and economic groupings, whether in terms of discussing or negotiating trade or security arrangements. Article 41 of the ASEAN Charter speaks of the conduct of external relations of ASEAN, and of ASEAN being the primary driving force in regional arrangements that it initiates and maintaining centrality in regional cooperation and community building. Article 41(7) speaks of ASEAN concluding agreements with countries or sub-regional, regional and international organisations and institutions. In these endeavours, ASEAN would undoubtedly benefit from the services of lawyers who represent the organisation itself rather than its constituent countries. The Secretariat and the other bodies within ASEAN will need to have access to legal advice whether for purposes of advising on obligations, conducting negotiations, drafting, compliance or enforcement. 18. While the above areas are those in which ASEAN as an organisation needs assistance, it also identifies areas in which the constituent members of ASEAN will require legal assistance, whether in negotiations or in development of their own proposals in line with local and international obligations of those countries.
10 19. The invitation of the ASEAN Secretary General to ALA, should be seen as an opportunity for ASEAN lawyers, at least those who are members of ALA, to actively engage in ASEAN s future as well as to develop knowledge in what may be an emerging area of ASEAN law. ASEAN Lawyers and Private Practice 20. Article 1(5) of the ASEAN Charter envisions the creation of a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment, facilitated movement of business persons, professionals, talent and labour; and freer flow of capital. Article 2(n) also refers to the principle of working towards the elimination of all barriers to regional economic integration, in a market driven economy. 21. These two articles, in the context of lawyers, envisages the ability of lawyers within the ASEAN region to provide legal services not only domestically to domestic clients and foreign clients but also :- (i) (ii) regionally to domestic clients requiring legal services or representation outside their domestic market; and regionally representing regional clients. 22. If we move in this direction, it will not be unusual to see Indonesian lawyers representing Indonesian clients in Malaysia, or a Thai lawyer representing a Singaporean client in the Philippines, or a Bruneian lawyer representing an Indonesian client in Indonesia. This would give meaning to the term ASEAN lawyers. ASEAN and the ASEAN lawyers however have yet to fully embrace this concept, although in the past few years, we have seen the liberalisation of the legal services sector to varying degrees, for example in Singapore, Thailand, Vietnam and Indonesia.
11 23. It is increasingly becoming common practice or preference for businesses or clients, whether from ASEAN or outside, who have business interest in more than one country, to prefer having the services of an ASEAN lawyer or law firm. That is, a lawyer or law firm that can assist the client for all its needs anywhere the client goes in ASEAN. Therefore, an ASEAN lawyer must have ability to operate anywhere in ASEAN. 24. If we are thinking about the ASEAN objective of having a common or integrated ASEAN economy with free flow of movement of goods and, more pertinently to us, of services, then there should eventually be a removal of all barriers of entry for ASEAN lawyers within ASEAN. We are seeing this to some extent already. It is now not uncommon to have a lawyer assisting clients in various jurisdictions in ASEAN in conjunction with local lawyers or having law offices in more than one ASEAN country. For instance, we have a Malaysian law firm that has offices in 6 different ASEAN countries, and primarily employing local lawyers in those countries. 25. It may not be everyone's model or ability to have offices in every ASEAN country. All countries of ASEAN are within a 3 hour flight radius, and therefore easily accessible. Some would thus prefer the 'aircraft carrier' model where its office is based in one ASEAN country with its lawyers constantly and easily flying for its work. However, in our quest to be ASEAN lawyers, for expansion and new frontiers we should always bear in mind that we as lawyers subscribe to the rule of rule and must by our training and calling have respect for the law, whether it be laws of our country or of our neighbours. Each of our member States has laws and rules regulating the practice of law and entry of foreign lawyers. We should not because of our ignorance, insensitivity or avarice transgress or flout the laws and rules of our fellow ASEAN countries by seeking to venture into their territory in breach of their laws. It would be a disregard and lack of respect for the integrity and sovereignty of our neighbours. This would be anathema to the nature of us as lawyers and to our duty to uphold and respect the law. A law firm that does so has no business being in the business of law.
12 Such a law firm ought to be dealt with in accordance with the law. Such a law firm also acts contrary to the spirit and principles of ASEAN. We should collectively send a message that such transgression will not be acceptable. 26. In most instances however, such a law firm is nevertheless restricted in the areas of practice. Usually, this is due to the fact that such a law firm would be considered a foreign law firm and would not have requisite qualifications to advise on local laws. However, such a restriction may nevertheless be imposed even when the law firm employs locally qualified lawyers in its firm. Such a barrier is usually justified on grounds of protecting the local legal practitioners. 27. In order for a law firm to be an ASEAN law firm in its purest definition, we would perhaps have to wait for the day when the restriction is removed such that any law firm from an ASEAN country may provide legal services in any part of ASEAN so long as it is provided by a lawyer within the firm who is legally qualified in that law. Further, for an individual lawyer to be an ASEAN lawyer in its purest definition, we would perhaps have to wait for the day we have developed a body of ASEAN laws analogous to European Union laws. IV. ASEAN Lawyers and Malaysia - Liberalisation of the Legal Services Sector in Malaysia 28. To turn now to developments in Malaysia in this direction. The Malaysian Bar has since 2002, advocated the autonomous liberalisation of the legal services market in Malaysia. Among other things, the Malaysian Bar saw this as a move forward in step with the aims and principles of ASEAN. In 2004, the Bar Council of Malaysia had prepared proposed amendments to the Legal Profession act 1976 (Malaysia) and draft rules for the admission of foreign lawyers. These were forwarded to the Ministry of International Trade and Industry and the Attorney General s Chambers. In February 2009, the Bar Council of Malaysia had produced a roadmap for the liberalisation of the legal services sector. This
13 roadmap was presented to the Malaysia External Trade Development Corporation (MATRADE) in mid-2009. A roundtable session was also organised by the Bar Council with the participation of the Attorney General s chambers, the Ministry of International Trade, Bank Negara Malaysia (the Central Bank) and the Law Council of Australia in 2009. 29. This roadmap envisaged a gradual liberalisation process commencing in 2009 and reaching a broader liberalisation beyond 2015. 30. Since then, the various stakeholders in Malaysia have been working together to formulate legislation providing for the entry of foreign law firms and foreign lawyers into Malaysia. 31. The current proposal is to permit foreign law firms to enter Malaysia either as an International Partnership or a Qualified Foreign Law Firm. An International Partnership is essentially a partnership between a foreign law firm and a Malaysian law firm and a Qualified Foreign Law Firm is a foreign law firm that is permitted to practice in Malaysia without entering into partnership with a Malaysian law firm. 32. It is proposed that an International Partnership would have a minimum of 30% foreign equity and a maximum of 40% foreign equity. The Permitted Practice Areas for an International Partnership is any work regulated by Malaysian law and at least one other national law or regulated by any law other than Malaysian law. The partners of the International Partnership would remain partners of their respective constituent law firms. This is to reflect the objective of International Partnerships being a coming together of a Malaysian law firm and a foreign law firm as opposed to Malaysian individuals and foreign individuals. It is proposed that there be a minimum residency requirement for the foreign partners namely the foreign law firm shall have at least two foreign lawyers (who must be equity partners of the foreign law firm or directors of the same in the case of
14 incorporated firms) resident in Malaysia for a minimum of a 182 days in any calendar year. 33. A Qualified Foreign Law Firm does not need to have a Malaysian law firm as a partner. However, it is proposed that its Permitted Practice Areas would be work that is regulated by any foreign law only. This would include International Islamic Finance. In other words, it may not advise on any aspect of Malaysian law. It may employ Malaysians as lawyers in the firm. However, it is proposed that such Malaysian lawyers would not qualify for a practising certificate to practice Malaysian law. 34. There is also a negative list of practice areas, that is areas in which neither an International Practice nor a Qualified Foreign Law Firm would be authorised to provide legal services. This includes constitutional and administrative law, criminal law, family law, and litigation in Malaysian courts. 35. A foreign law firm and a Malaysian law firm wishing to form an International Partnership or a foreign law firm wishing to practice in Malaysia as a Qualified Foreign Law Firm would have to make an application for the requisite practicing license to the Bar Council of Malaysia. The Bar Council of Malaysia would forward such application to a selection committee for its consideration and recommendation. Thereafter, the Bar Council shall, after considering the recommendation of the selection committee, either grant or refuse the license. Among the things that will be considered by the Bar Council is the requisite business plan submitted by the firms concerned. The plan shall among other things, have the objective and ability of promoting and enhancing the Malaysian legal profession and the national interest, which would include any plan for transfer of technology and expertise in the appropriate permitted practice areas and the implementation of the plan. 36. The selection committee would comprise of the Attorney General or his representative, a representative from the Ministry of International Trade and
15 Industry, a representative from the Ministry of Finance, the President of the Malaysian Bar or his representative, and two members of the Malaysian Bar appointed by the Bar Council. 37. The entry of International Partnerships and Qualified Foreign Law Firms into the Malaysian market will no doubt create greater competition, uncertainty and anxiety among some local practitioners, particularly those who have no desire to be part of an International Partnership or to practice with a Qualified Foreign Law Firm. In order to facilitate equality of arms among market participants, it is proposed therefore that Malaysian law firms be permitted to hire foreign lawyers. V. Conclusion 38. The ASEAN Charter has given increasing prominence to the idea of an ASEAN lawyer. Summoned by circumstance or by call of duty, lawyers in ASEAN of different training and background, are contributing towards the legal and institutional framework of ASEAN. The work of ASEAN would inevitably require the knowledge, expertise and experience of law academicians, judicial officers, and lawyers from the public and private sectors, from the ASEAN nations. Their contributions would be in terms of internal organisation and management of ASEAN, dispute resolution, external relations and services to the individual ASEAN countries. 39. It is an interesting time to be an ASEAN lawyer in the ASEAN region. Many opportunities as well as challenges are emerging. As legal markets liberalise in the region, we will have to make choices of whether or not to enter those markets, or how to address the entry of others into our respective jurisdictions. Christopher Leong Vice President Malaysian Bar