It is not a lawyer's fundamental right to run for election in the Bar Council, the Kuala Lumpur High Court ruled today.

Justice Faiza Tamby Chik made the ruling when dismissing an application by lawyer-cum-politician R Sivarasa who sought to challenge the validity of Section 46A of the Legal Profession Act 1976 (LPA) which bars political party officials from holding office in the Bar Council.

"Section 46A of the LPA does not restrict the applicant's freedom. This is because it does not confer his right to be member at the Malaysian Bar.

"It only confers a right to stand for election in the Bar Council and this is not a fundamental right. Therefore his constitutional rights are not affected ," he said.

He added that Sivarasa has no constitutional right to be a member of the Bar Council, a post which was created by statute, namely the LPA.

As to the contention that the LPA contravened the Federal Constitution's Articles 10 (freedom to join any association) and 5 (which ensures personal liberty), Faiza said these two articles cannot be applied to Sivarasa's application.

He said the application cannot be "protected" under Article 10 because the applicant's right to join an association was not restricted while Article 5 mainly refers to personal liberty which guarantees a citizen freedom of unlawful detention.

Ground of technicalities

Faiza, who made no order as to cost, informed parties that he will be delivering the written judgment in a couple of days.

Sivarasa, appointed Parti Rakyat Malaysia (PRM) vice-president on July 14, 2001, filed for a judicial review to challenge Section 46A of the Legal Profession Act 1976 (LPA) which prohibits, among others, office bearers of political parties from being a member of the Bar Council.

In naming the Bar Council and the government as respondents, Sivarasa also sought a declaration that he was still a Bar Council member for the 2001-2002 term.

Faiza had earlier dismissed Sivarasa's application on the ground of technicalities but following an appeal on Jan 30, this year, the Court of Appeal set aside the judge's decision and ordered him to hear the merits of the case.

Parties had completed their submissions on July 8. Sivarasa was represented by counsel Tommy Thomas while senior federal counsel Azahar Mohamed appeared for the government.

Earlier today, Thomas argued that Section 46 of the LPA is in breach of Article 10(1)(c) of the Federal Constitution that ensures a citizen's right to stand for election as an office bearer in all the associations that he has joined and to hold office in all the associations simultaneously.

He said the provision in the LPA is in breach of Article 8 and 5 of the Constitution because it results in unfair discrimination and deprives a citizen of his or her personal liberty.

"The applicant's (Sivarasa) fundamental freedoms are directly affected because the provision (in the LPA) has rendered the exercise of these fundamental rights ineffective or illusory because he is not permitted to hold the office of vice-president in Parti Rakyat Malaysia and be an office member of the Bar Council simultaneously," said Thomas.

Conflict with political interest

In his reply, Azahar urged the court to dismiss Sivarasa's judicial review application with cost stating that the conditions imposed by the LPA does not violate the fundamental right to form an association.

While all lawyers who have been admitted as advocates and solicitors have the right to become members of the Malaysian Bar, he said that not all members of the Bar have the right to hold office at the Bar Council.

He said the LPA's provision seeks to prevent a politician from acting in a manner which would bring his public duties "as members of the Bar Council" into conflict with his political interest.

"We submit that the Bar Council responsible as a governing body for members of the legal profession , consisting of some 10,000 members should consist of members who are professional, independent and responsible," he said.

He added that the issue is not whether there will be an actual conflict of interest but that it must not be perceived that a potential conflict of interest will exist.

Sivarasa, 44, is a partner in a law firm Messrs Daim & Gamany, Sivarasa joined PRM in 1999.