The Court of Appeal today reserved its judgment on the validity of Section 46A of the Legal Profession Act 1976 (LPA) which, among others, bars officials of political parties from holding office in the Bar Council.

Presiding judge Mohtar Sidin - assisted by Allaudin Mohd Sheriff and Arifin Jaka - said the court would have to study arguments submitted before arriving at a conclusive finding.

Earlier, they heard submissions by counsel representing senior lawyer R Sivarasa, the government and the Bar Council on the validity of the section.

The matter before the court concerns an appeal by Sivarasa to challenge the section which prohibits him from holding a post in the Bar Council. Then a vice-president of Parti Rakyat Malaysia - now Parti Keadilan Rakyat - he claims this is unconstitutional and that it restricts his freedom of association.

In 2002, the Kuala Lumpur High Court had dismissed his application on the grounds that the LPA was not unconstitutional. Sivarasa's application is also opposed by the government.

His counsel Tommy Thomas argued today that Section 46A violates Sivarasa's right as enshrined under Article 5 of the Federal Constitution which guarantees the liberty of the person, and Article 10 which spells out the right to freedom of speech, assembly and association.

"Why can't Sivarasa be a member of the Bar Council and simultaneously be a politician? If a lawyer is active in business he is allowed to be in the Council, in partnerships, in a company and his freedom of association is engaged," he said.

"A practising politician can also be in association for engineers, a medical association and the dental association. Why is it different when it is linked to the legal profession?"

Section 46A of the LPA bars lawyers with less than seven years' experience, members of parliament, state assembly representatives, and office-bearers in trades union and political parties from being elected as Bar Council members.

The LPA controls the activities of lawyers and regulates the Bar Council, the 36-member body which manages the affairs and executes the functions of the Malaysian Bar.

'Public morality'

Thomas further said it was wrong to perceive that members of the Bar would only elect opposition politicians to the Council as even government politicians would stand a chance if members saw it in their interest to do so.

While the freedoms offered under Article10 are circumscribed by security, public order and morality considerations, he submitted that electing politicians into the Bar Council would not have an effect these three issues.

"How is security affected by the way a professional body is run? There is also no issue of morality here. There is nothing moral or immoral about a full-time politician serving on the Bar Council," Thomas added.

Responding for the government, Senior Federal Counsel Alice Loke said the terms of freedom of association under Article 10 are not wide enough to cover Sivarasa's appeal.

"The Bar Council is a creature of statute created under the LPA, so the Bar Council is not an association in the normal sense of the word and it is not an association within the meaning of Article 10," Loke said.

She also argued that Section 46A was to create an independent Bar Council and the involvement of politicians in its affairs could be offensive to public morality.

"Morality has a wide importance since ethics cover every aspect of human conduct. The negative essence for instance is that it (Bar Council) could be partial in adjudicating a dispute, which is considered to be unethical and wrong," she said.

"The quality of being impartial and independent has always been associated with the legal fraternity."

Changing stance

During the hearing, the Bar Council was also asked for its stand. Counsel Bastian Vendargon said the Council was in support of Sivarasa's appeal and that Section 46A was offensive to his rights under Article 10.

Mohtar then chastised the Bar Council, stating that it should have challenged the Section 46A provisions at the outset of the creation of the statute in 1977.

"You should have taken a case to declare it unconstitutional but now, after 30 years and suddenly out of the blue, you come out to join the bandwagon.Why wait for Sivarasa to raise the issue when you yourselves are the respondent?" Mohtar asked.

"I just can't bear the attitude of the Bar Council sometimes. Where is your moral duty?"

At one stage of the case, the council had itself filed an objection to Sivarasa's application. However, as the hearing progressed, the council changed its position and stated that it was "neither supporting nor objecting (to)" the application.

Former council president Mah Weng Kwai was quoted in media reports on Aug 23, 2001 as saying that the council objected to Sivarasa's application because "it felt its independence must always be evident to the public".

He made a U-turn a year later when members of the Bar passed a resolution for the second time condemning the law.