Lawyer Gets Leave To Challenge Bar Council Provision.
The Federal Court Tuesday granted leave to lawyer-cum-politician R. Sivarasa to challenge the validity of a provision in the Legal Profession Act 1976 which bars political party officials from holding office in the Bar Council.
The Court of Appeal on Nov 24 last year dismissed his application for a declaration that he was still a member of the Bar Council despite holding office in a political party.
Today, Federal Court judges led by Chief Judge of Sabah and Sarawak Datuk Richard Malanjum granted him leave to appeal on four issues.
Firstly, whether Section 46A of the Legal Profession Act which disqualifies Sivarasa from being a member of the Bar Council and offering himself as a candidate for future elections is unconstitutional by reason of a breach of fundamental rights entrenched in the Federal Constitution.
The other two issues are whether the provision is contrary to Sivarasa's right to freedom of association provided in Article 10(1)(c) and the equality provision in Article 8(1) of the Federal Constitution.
The court will also decide whether the provision has the effect of depriving or impinging on Sivarasa's personal liberty contrary to Article 5(1).
On July 18, 2002, High Court Judge Datuk Faiza Tamby Chik, in dismissing Sivarasa's application for the declaration, ruled that the Legal Profession Act gave Sivarasa the right only to stand for election but not a fundamental right to be a member of the Bar Council.
Sivarasa who was appointed Parti Rakyat Malaysia vice-president on July 14, 2001, sought a declaration that he was a Bar Council member for the 2001-2002 term.
In his application, he claimed that Section 46 of the Legal Profession Act rendered his fundamental freedom guaranteed by the Federal Constitution "meaningless, ineffective or illusory".
The Court of Appeal on Nov 24 last year dismissed his application for a declaration that he was still a member of the Bar Council despite holding office in a political party.
Today, Federal Court judges led by Chief Judge of Sabah and Sarawak Datuk Richard Malanjum granted him leave to appeal on four issues.
Firstly, whether Section 46A of the Legal Profession Act which disqualifies Sivarasa from being a member of the Bar Council and offering himself as a candidate for future elections is unconstitutional by reason of a breach of fundamental rights entrenched in the Federal Constitution.
The other two issues are whether the provision is contrary to Sivarasa's right to freedom of association provided in Article 10(1)(c) and the equality provision in Article 8(1) of the Federal Constitution.
The court will also decide whether the provision has the effect of depriving or impinging on Sivarasa's personal liberty contrary to Article 5(1).
On July 18, 2002, High Court Judge Datuk Faiza Tamby Chik, in dismissing Sivarasa's application for the declaration, ruled that the Legal Profession Act gave Sivarasa the right only to stand for election but not a fundamental right to be a member of the Bar Council.
Sivarasa who was appointed Parti Rakyat Malaysia vice-president on July 14, 2001, sought a declaration that he was a Bar Council member for the 2001-2002 term.
In his application, he claimed that Section 46 of the Legal Profession Act rendered his fundamental freedom guaranteed by the Federal Constitution "meaningless, ineffective or illusory".
posted by The Malaysian. at 8/15/2006 05:50:00 PM
2 Comments:
Just a couple of observations:
1) The High Court Judge made a very good point on the distinction between a right to stand for Bar Council elections and a guarantee of office.
2) The Legal Profession Act is quite comprehensive on the obligations and restrictions placed on office bearers of the Bar Council. Does the learned lawyer hope to effect a change in legislation without actually going through Parliament?
Moral of the story? Perhaps some people watch too much CNN and courtroom dramas on TV.
tigerjoe, I'm of the pre-CNN days - Perry Mason and Petrocelli!
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