updated version

The Court of Appeal has granted leave for lawyer R Sivarasa to apply for a judicial review to declare that a provision of the law concerning the legal profession as unconstitutional.

Prominent human rights lawyer Sivarasa, who was appointed PRM vice-president last July, is seeking to declare invalid Section 46A of the 1976 Legal Professions Act that prohibits office bearers of political parties from being a member of the Bar Council.

Chairman of the three-man Appeal Court panel, Gopal Sri Ram, said that Kuala Lumpur High Court judge Faiza Tamby Chik's had erred in his earlier decision to dismiss Sivarasa's leave application.

Gopal, who sat with justices Mohd Saari Yusof and Abdul Kadir Sulaiman, then directed the matter to be heard by the High Court next Monday.

"I must be forgiven for expressing my amazement and disappointment that at this day and age applications and suits are disposed on purely technical and procedural grounds without the slightest attempt to ensure that justice according to the merits of the particular case is done," he said.

Fair justice

Gopal was criticising justice Faiza's dismissal of Sivarasa's leave application on Aug 22 on technical grounds effectively quashing his opportunity to argue the merits of his case.

Faiza decided that Sivarasa's use of Order 53 of the Rules of the High Court was faulty, as one could only seek for judicial review under the section if a decision on a matter had been made.

However Gopal disagreed and stated that the courts must not be hindered by purely technical grounds.

"A rule of court should not be interpreted in such a way as would result in unfairness or produce a manifest injustice.

"Somewhere in the performance of the duty as judge to decide according to law, we have forgotten our duty to do justice according to the substantive merits of each case," Gopal said.

EGM called

Sivarasa filed his application on Aug 8 to prevent his disqualification from his position as a member of the Bar Council, naming the Malaysian Bar and the government as respondents.

In the wake of Sivarasa's application, a group of 75 lawyers had requisitioned for an extraordinary general meeting of the Malaysian Bar to censure the Bar leadership for allegedly contradicting a Bar resolution passed in 1978, which criticised the government for amending the Legal Profession Act to include the controversial section.

However, the meeting on Sept 28 was cancelled for lack of a quorum.

Sivarasa was represented by Tommy Thomas, while the Bar Council was represented by Cyrus Das and Bastion Vendargon.

The Attorney-General's Chambers was represented by senior federal counsel Abdul Aziz Abdul Rahim and federal counsel Alice Loke.