As a member of the Malaysian Bar whom the Bar Council purportedly represented in the application for judicial review filed by R Sivarasa recently for a declaration that he was not disqualified from the Bar Council by virtue of him holding the position of vice-president of Parti Rakyat Malaysia (by operation of section 46A of the Legal Profession Act), I am troubled by the stand taken by counsel appointed by the Bar Council at the hearing of the application.

The objections to the application raise serious questions of the credibility and consistency of the present Bar Council.

In objecting to the application on its merits the Bar Council has completely ignored the very stand taken by the Malaysian Bar through a resolution at an AGM of the Malaysian Bar.

When at an AGM the Malaysian Bar speaks through a resolution, that resolution becomes the voice of the supreme body. When the Malaysian Bar passes a resolution, until revoked, the resolution binds any position or stand taken by the Bar Council.

The Bar Council, consisting of 36 elected members of the Malaysian Bar, cannot willfully ignore a resolution of the Malaysian Bar. When the supreme body speaks, the Council must listen. It is as simple as that.

In 1978, the Malaysian Bar at its AGM, by passing a resolution, opposed the amendments to the Legal Profession Act , including the introduction of the new section 46A of the Legal Profession Act, which is the subject matter of the application filed by Sivarasa.

The resolution reads as follows:

"The Malayan Bar regret that the Government:

"(a) in complete disregard of the reason of the Bar for the stand it had taken on the Essential Security Cases (Amendment) Regulations, 1975, leading to the passing of the resolution by the Extraordinary General Meeting of the 18th October, 1977, which has that such Regulations essentially denied an accused person of the most fundamental safeguards against wrongful conviction;

"(b) without making any proper inquiries as to its allegation that the Bar is being influenced by practitioners of less than seven year's standing or who are politically motivated (writer's emphasis); and

"(c) despite objections expressed by the Bar Council both publicly and to the appropriate authority, has with the clear and wholly unworthy intention of muzzling the Malayan Bar proceeded with the passing of the Legal Profession (Amendment) Bill, 1977, thereby showing itself to be unwilling to accept valid and constructive criticism."

In 2001, the present Bar Council, without consulting the members of the Malaysian Bar through an EGM or AGM, has decided to renege on the stand taken by the Bar Council of 1977/1978 who proposed the resolution, and more importantly the stand taken by the Malaysian Bar at a general meeting through resolution, by opposing Sivarasa's application on its merits. By opposing the application, the present Bar Council has tacitly approved a law that it and more importantly, the Malaysian Bar, not so long ago opposed on the ground that it was introduced "with the clear and wholly unworthy intention of muzzling the Malayan Bar".

Section 46A of the Legal Profession Act was introduced to the act by the passing of the Legal Profession (Amendment) Bill,1977. Section 46A prevents lawyers who are below seven years in practice, members of Parliament, state legislatures, local authorities, office-bearers of trade unions and political parties from being elected as members of the Bar Council.

In 1978, when the Malaysian Bar passed a resolution to oppose the amendments proposed by the Legal Profession (Amendment) Bill,1977, the resolution did not distinguish between the categories of persons who were prevented from being elected as members of the Bar Council. The resolution quite clearly objected to any restrictions being placed on who can be elected to the Bar Council. The resolution, in fact, clearly had persons who held office in political parties in mind. Therefore it is not open to the present Bar Council to say that the 1978 resolution does not bind them vis-a-vis Sivarasa's application.

This raises the question that if the present Bar Council is not bothered to adhere to resolutions passed by the Malaysian Bar at its own general meetings, can it expect the government or other bodies to respect or even consider the resolutions so often passed at its general meetings urging them to do or refrain from doing things?

Counsel appointed by the Bar Council also appear to haven taken procedural objections to the application on the grounds that the declaration sought by Sivarasa cannot be sought without seeking an order for mandamus, prohibition or certiorari. This objection appears to have been taken without due consideration of the amendments to the High Court Rules, 1980 that came into effect last year which has widened the scope of relief that may be sought under Order 53 of the High Court Rules, 1980. With the amendments a person may seek an order for enforcement of the rights conferred by Part II of the Federal Constitution. Part II of the Federal Constitution is the 'Fundamental Liberties' protected by the Constitution; Freedom of association' is one of the fundamental liberties expressly provided for (Article 10 of the Constitution) and is the very premise of Sivarasa's application.

Notwithstanding my misgivings about the correctness of the 'procedural objections' taken by counsel appointed by the Bar Council, one also must not lose sight of the fact that the Bar Council had resorted to taking 'procedural objections' that limit the scope of a law to knock off an application. The practice of taking 'procedural objections' has been frowned upon by the courts and for the Bar Council, the governing body of the Malaysian Bar, to resort to this practice is regrettable to say the least.

Whether Sivarasa is successful in the Court of Appeal remains to be seen. However, I am sure members of the Malaysian Bar would be following the developments carefully not only for the implications that the decision would have on the profession but also as to how the Bar Council represents the Malaysian Bar in the Court of Appeal.

It is hoped that the present Bar Council would hear the resounding voice that they ought to listen to in making decisions, that is the voice of the Malaysian Bar spoken at its general meetings. Unless of course, it feels that, while in 1978 it was not acceptable, it is now all right to be "muzzled".