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Law updates - The legal profession (Malaysian law unless otherwise stated)

*Abbreviations 
HC = high court 
COA = court of appeal 
FC = federal court 

Sivarasa Rasiah v Badan Peguam Malaysia & Anor [COA]

  The appellant, an advocate and solicitor was disqualified as a member of the bar council when elected vice president of a political party. The disqualification was made pursuant to s 46A(1)(c)(ii) of the legal profession act 1976 (LPA), which disqualifies any person from being a member of the bar council if he holds office in a political party. The right to freely associate under article 10(1)(c) is a right granted to all citizens and bears no reference to a right created by statute, i.e. the LPA, to serve as a member of the bar council. The right to form the bar council is derived from the LPA and therefore, any right, benefit or privilege conferred by the LPA may also be restricted thereunder without contravening article 10(1)(c). All persons admitted as advocates and solicitors have the right to become members of the Malaysian bar. However, not all members of the Malaysian bar have a right to become members of the bar council since the LPA does not confer the right of being a member of the bar council. The appellant's disqualification did not constitute a violation of a fundamental right since being a member of the bar council is not itself a right protected by article 10(1)(c). Article 10(1) of the constitution begins with the words "subject to clauses to (2) and (3)..." Shows that the rights thereunder are not absolute. In the case of article 10(1)(c), article 10(2) authorises parliament to impose restrictions as it deems necessary in the interest of the security of the federation, public order or morality, the underlying idea of which is that the nature, scope and extent of the restriction is for determination by parliament. Section 46A(1)(c)(ii) of the LPA was enacted to ensure the independence of the bar council, free of political influence and to avert any potential conflict of interest. If allowed to hold political office whilst a member of the bar council, it would bring into question the likelihood of the appellant's potential impartiality. Although whether the bar council is likely to be influenced is irrelevant ultimately, it should not be placed in a position so as to arouse the suspicion thereof. The submission that since s 46A(1)(c)(ii) of the LPA was ultra vires both article 5(1) and 10(1)(c) of the constitution and therefore void pursuant to article 4 of the same was of no moment. Even if s 46A(1)(c)(ii) of the LPA offended article 10(1)(c), which is not the case, the restriction imposed by s 46A(1)(c)(ii) was within the purview of article 10(2)(c), and therefore cannot be unconstitutional.

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