Circular No 003/2017
Dated 5 Jan 2017

To Members of the Malaysian Bar

Update on Imposition by Local Authorities of Requirement of Licences for Premises and/or Signboards (5 Jan 2017)

We refer to Circular No 051/2015 dated 11 Mar 2015, entitled “Imposition by Local Councils of Requirement of Licences for Premises and/or Signboards”, which informed Members that the Ministry of Urban Wellbeing, Housing and Local Government (“Ministry”) had officially communicated to the Bar Council that law firms are not required to pay for licences for their premises.  However, the Ministry had stated that law firms must apply for signboard licences from the local authorities.

We also refer to Circular No 116/2016 dated 17 May 2016, entitled “Update on Imposition by Local Authorities of Requirement of Licences for Premises and/or Signboards”, which informed Members that the Bar Council notified Dewan Bandaraya Kuala Lumpur (“DBKL”) and Majlis Bandaraya Shah Alam (“MBSA”) of the Bar Council’s position that law firms are regulated under the Legal Profession Act 1976 and the Legal Profession (Publicity) Rules 2001, and do not come within the definition of “trade, business or industry” under the Local Government Act 1976, and as such there is no requirement for law firms to apply for licences for their signboards.   

Engagement with DBKL

In a letter to DBKL dated 16 May 2016, the Bar Council requested a meeting in order to explain its position concerning DBKL’s requirement that law firms obtain licences for premises and/or signboards.  Regrettably, there has been no response from DBKL despite several verbal and written reminders.

It has come to the Bar Council’s attention that several law firms based in Kuala Lumpur have been served with a notice from DBKL requiring them to obtain a business licence for their offices, in light of the Licensing of Trades, Businesses and Industries (Federal Territory of Kuala Lumpur) By-Laws 2016 (“By-Laws 2016”, accessible in Bahasa Malaysia and English here), which came into effect on 1 Sept 2016.

The Bar Council wrote a letter to DBKL dated 8 Nov 2016, requesting an urgent meeting be held on 16 Nov 2016 in order to resolve this issue, and then made several follow-up telephone calls.  We managed to contact DBKL on the morning of 16 Nov 2016, and was informed that the proposed meeting would not proceed as requested, and that DBKL would respond to us in due course.  

Subsequently, the Bar Council wrote a letter dated 17 Nov 2016 requesting a moratorium on the requirement that law firms apply for licences from DBKL, until the matter is resolved.  A copy of this letter is attached for your reference.    

DBKL finally responded to the Bar Council by letter dated 5 Dec 2016, stating that the By-Laws 2016 stipulate that premises that carry out activities of a managing office, which includes law firms, must be licensed.  DBKL also requested that the Bar Council inform and encourage law firms to apply for licences for their premises and signboards.  A copy of this letter is attached for your reference.  Please note that “lampiran A”, mentioned in the second paragraph of the letter, refers to the Schedule in the By-Laws 2016.

Bar Council’s Position

We wish to draw Members’ attention to section 102 of the Local Government Act 1976, which provides, in relevant part, as follows:

102. General power to make by-laws.

In addition to the powers of making by-laws expressly or impliedly conferred upon it by any other provisions of this Act every local authority may from time to time make, amend and revoke by-laws in respect of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the inhabitants or for the good order and government of the local authority area and in particular in respect of all or any of the following purposes —

. . . 

(s) to control and supervise, by registration, licensing or otherwise, including in proper cases by prohibition, a trade, business or industry which is of an obnoxious nature or which could be a source of nuisance to the public or a class of the public;

The Bar Council maintains its position that Members of the Bar constitute a profession, and that law firms — which are regulated under the Legal Profession Act 1976 and the Legal Profession (Publicity) Rules 2001 — should not be classified as a “trade, business or industry”.  Hence, the Bar Council is of the view that law firms are not required to apply for licences for their premises or signboards, despite the stance of the local authorities to the contrary.

The Bar Council is of the view that the By-Laws 2016 is ultra vires the primary legislation (ie the Local Government Act 1976) insofar as the legal profession is concerned, and therefore invalid to that extent.

The Bar Council will continue to seek to meet with DBKL and the relevant authorities in order to arrive at a conclusive resolution of this matter.

For enquiries, or if Members encounter any difficulties in respect of this matter, please contact Marianna Laureen Tan, Executive Officer, by telephone at 03-2050 2086, or by email at ml.tan@malaysianbar.org.my.

Thank you.

Karen Cheah Yee Lynn
Secretary
Malaysian Bar