I am disappointed with the decision of the High Court on Wednesday Aug 22, 2001 dismissing my application for leave to apply for declaration that I was not disqualified from the Bar Council by virtue of my holding the position of vice-president of Parti Rakyat Malaysia because of the operation of section 46A of the Legal Profession Act 1976.

I will be appealing against the decision to the Court of Appeal to obtain the view of that appellate forum on the important issues of fundamental rights and constitutional freedom that this application raises.

However, I am most disappointed and saddened by the position now being taken by a majority of the members of the Bar Council which resulted in them authorising their counsel Datuk Bastian Vendargon and Hamid Sultan Abu Baker to take various procedural objections to the application and to also oppose the application for a stay of proceedings. I understand the majority of the Bar Council have also taken the view at their meeting of July 17, 2001 to oppose my application on the merits as well.

The fact that the majority of the Bar Council can now support, in principle, the operation of section 46A is for truly a sad day for the Malaysian Bar. To my mind, it does not augur well for the future of the Malaysian Bar.

My former colleagues in the Council who took this view may not have fully appreciated that by doing so, they have taken the Malaysian Bar backwards in a regressive step in contradiction to the Bar's previous and constant vigilance to speak out without fear or favour for justice and human rights.

My concerns are as follows.

The Bar Council seems to have lost sight of a crucial issue of principle - that section 46A is a violation of fundamental freedom of association, by preventing lawyers who are below seven years, members of parliament, state legislatures or a local authority, and officer-bearers in trade unions and political parties from being elected as members of the Bar Council.

The principle of democracy within the Bar is also violated by section 46A - whether such lawyers are seen fit to be elected to leadership within the Bar is a choice which must be left to individual members of the Bar.

The individual lawyer can decide that he has no more confidence in a particular lawyer who is also a politician and not vote for him or campaign against him - or choose to continue to support him or her. But that right must always remain with the individual lawyer; it should not be removed by the state or by any other body.

This is why the Bar Council in 1977/8 opposed the amendments to the Legal Profession Act including section 46A imposed by the government in January 1978 in retaliation to the Bar's principled opposition to the Essential (Security Cases) Regulations 1975 or Escar. This is why the AGM of the Malaysian Bar, the highest body of the Bar, on Feb 3, 1978 opposed the amendments in these terms:

"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; 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."

We must also remember that section 46A of the LPA is not an isolated piece of legislation. Similar restrictive legislation in violation of fundamental freedom of association is also found in the Trade Unions Act 1959 and the amendments to the Societies Act 1966 in the early 1980s.

The Societies Act amendments had a similar effect of cleaving civil society artificially into two halves - a so-called 'political' half and a 'non-political' or 'apolitical' other half. These amendments prevented those holding office in political parties from holding office in citizen's associations or NGOs.

These amendments were opposed by a wide spectrum of civil society organisations including the Bar Council on the ground that they violated the fundamental freedom of association and democracy guaranteed under the Federal Constitution.

The current executive has in the last 20 over years constantly tried to influence our people into accepting this completely artificial and oppressive dichotomy of the political and the non-political. The message constantly driven home is: "If you want to get involved in politics, you join a political party. Otherwise, you can't talk about politics." This constant propaganda now leads to discussions about how one must be 'apolitical' in one's approach to issues.

As those organisations which opposed the Societies Act amendments argued, such distinctions are totally artificial. All aspects of our lives are influenced by 'political' decisions ranging from whether our rubbish gets cleared or whether the former deputy prime minister was beaten by the Inspector-General of Police or not. There are no separate 'political' and 'apolitical' boxes to put these into. Every aspect of our lives turns on political issues and decisions made by others over us.

This artificial distinction has been created by an authoritarian executive to control civil society organisations, mute their voices and prevent them from legitimately utilising political voices for their issues and causes.

I understand that some members of the Bar Council now support the bar on politicians imposed by section 46A (1) (c) using the arguments that the Bar Council must be 'apolitical' and 'independent'.

It is extremely sad to see these persons on the Bar Council have now taken on, perhaps without being completely conscious of it, this completely artificial paradigm for civil society which our executive has been thrusting down our throats for the last 25 years.

In other words, we have now, knowingly or unknowingly, assimilated the value system of our oppressor which we actively opposed in 1978. Today, the leaders of the Bar welcome the handcuffs put on them by the executive then which our former leaders seeking to protect the independence of the Bar vigorously but unsuccessfully opposed.

The Chairperson of the Bar Council, Mr Mah Weng Kwai, is quoted in the New Straits Times of Thursday Aug 23, 2001 as saying, "The Council objected to Sivarasa's application because it felt its independence must always be evident to the public."

Assuming the quote to be accurate, with respect, it is almost perverse to use the purported 'independence' of the Bar to defend section 46A when we fought against it in 1978 as an attack on the independence of the Bar!

I need to reiterate again here that the leaders of the Bar appear to have lost sight of the fundamentals of the issue - that the question of whether lawyers who are politicians should be elected to the Bar Council is an issue only for the decision of individual members of the Bar: It is not for the State, or for that matter the Bar Council itself, to decide otherwise.

We must also note that the lawyer-politicians who are electable are not restricted to any particular party. But the decision making will be left in the hands of members.

I am also very concerned that on this fundamental issue, the Bar Council has seen fit to not just disregard, but act in direct opposition to a position of principle taken by the Malaysian Bar in general meeting, i.e. the highest authority of the Bar.

The principled stand of the Bar in 1978 had in fact started from the Bar Council itself then which proposed a motion which was supported overwhelmingly by the Malaysian Bar. Had there been no earlier position taken by the Malaysian Bar, that would have a different matter - the Council would have a free hand in deciding its position.

It appears that some members of the Council have taken the view that the resolution of February 1978 does not set out a position on the 46A amendments. Again, with respect, anyone, lawyer or non-lawyer, having in mind all the events in the latter half of 1977 leading up the AGM of February 1978 including the resolution, cannot reasonably avoid the conclusion that the Malaysian Bar had in 1978 opposed in totality and without qualification all the amendments of 1978 including section 46A.

Finally, and these are smaller matters, I note with some disconcert, the manner in which counsel for the Malaysian Bar were authorised to make procedural objections to my application for leave to apply for declarations pursuant to Order 53 of the Rules of the High Court 1980.

Lawyers familiar with judicial review procedures will know that the scope of Order 53 has been greatly widened since the amendments to the Rules of the High Court of September last year. Now, much like the English Order 53 procedures, in judicial review, one can seek discovery, cross-examination of deponents, and a broader scope of relief including declarations, injunctions, damages, etc.

The practicing Bar had in fact been pushing for some time for such a widening of Order 53 and was in full support of the amendment to Order 53 last year. Regrettably, counsel for the Malaysian Bar, put forward the procedural contention, that my application for declaratory relief could only be done if the declaration was an adjunct to a request for certiorari , prohibition or mandamus .

In my view, with respect, this contention is dubious. The learned judge did not appear to make a ruling on this, but I would just echo the words of my own counsel Mr Tommy Thomas when he said in court, "It would be a terrible shame to try and narrow the scope now and it's sad for the Bar Council to be arguing for this."

My application for leave was dismissed with costs, notwithstanding the fact that I had categorically stated in my affidavit, that as this application was made as a matter of public interest, I would not seek any costs even if I were successful.

It was again saddening to see counsel for the Bar Council remained silent when the Court dismissed the application with costs without making any attempt to persuade the Court that it might be more appropriate, in the circumstances, that there should be no order as to costs.

I hope my colleagues in the Malaysian Bar will take note of these developments and their implications. On my part, I will take my case to the Court of Appeal