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Constitutional

Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2006] involved a constitutional challenge to a provision of the Legal Profession Act 1976. The provision disqualified Sivarasa Rasiah from membership in the Bar Council due to his position as Vice President of the Parti Rakyat Malaysia political party. Sivarasa Rasiah argued this violated his constitutional rights to freedom of association under Article 10. The Court of Appeal had to determine whether the impugned provision was inconsistent with Articles 10 and 5 of the Federal Constitution.

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119 views2 pages

Constitutional

Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2006] involved a constitutional challenge to a provision of the Legal Profession Act 1976. The provision disqualified Sivarasa Rasiah from membership in the Bar Council due to his position as Vice President of the Parti Rakyat Malaysia political party. Sivarasa Rasiah argued this violated his constitutional rights to freedom of association under Article 10. The Court of Appeal had to determine whether the impugned provision was inconsistent with Articles 10 and 5 of the Federal Constitution.

Uploaded by

Mazuhairie Ifwat
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© Attribution Non-Commercial (BY-NC)
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Cases of constitutional: Sivarasa Rasiah v.

Badan Peguam Malaysia & Anor [2006] 1 CLJ

1. Name of the parties :



Plaintiff - SIVARASA RASIAH
 Defendant- BADAN PEGUAM MALAYSIA & ANOR
2. Name of the court :
 COURT OF APPEAL, PUTRAJAYA

3. Names of the judge :


 MOKHTAR SIDIN JCA
 ALAUDDIN MOHD SHERIFF JCA
 ARIFIN JAKA JCA

4. Date of judgement :
24 NOVEMBER 2005

5. The catch words :


CONSTITUTIONAL LAW: Fundamental liberties - Freedom of association - Article 10 Federal
Constitution - Meaning of ‘in the interest morality’

6. The headnote :
The appellant argued that the impugned statutory provision in intend to
disqualify him from being a member of the Bar Council (BC) and disqualify
him from offering himself as a candidate for election for membership of the BC
2002-2003 and in subsequent years was unconstitutional by reason of the
breach of the fundamental rights of the appellant entrenched in Part II of the
FC. The appellant also argued that his fundamental freedoms were directly
affected because the appellant was not permitted to hold the office of Vice
President, Parti Rakyat Malaysia and the office of member of the BC
simultaneously. The High Court Judge had dismissed the application and the
appeal. The main issue in this appeal was whether the impugned statutory
provision was inconsistent with arts. 10(1) (c) and 5 of the FC.
7. List of cases referred :

 Chor Phaik Har v. Farlin Properties Sdn Bhd [1994] 4 CLJ 285 FC (refd)
 Dato’ Menteri Othman Baginda v. Dato’ Ombi Syed Alwi [1981] 1 MLJ 29 (refd)
 Datuk Hj Harun Hj Idris v. PP [1977] 2 MLJ 155 (refd) Dewan Undangan Negeri Kelantan v.
Nordin Salleh [1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72 SC (refd)
 DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn Bhd &
Chan Teik Huat [2002] 2 CLJ 57 FC (refd)
 Government of Malaysia & Ors v. Loh Wai Kong [1979] 2 MLJ 33 (refd)
 Hinds v. The Queen [1976] 1 All ER 353 (refd)
 Hokkien Cemeteries, Penang v. Majlis Bandaran Pulau Pinang [1979] 2 MLJ 121 (refd)
 K Suryanarayana v. WG Co-op, Sugars Ltd AIR 1976 (refd)
 Lam Kong Co Ltd v. Thong Guan Co Pte Ltd [2000] 3 CLJ 769 FC (refd)
 Lembaga Tatatertib Perkhidmatan Awam Hospital Besar, Pulau Pinang v. Utra Badi [2001] 2
CLJ 525 FC (refd)
 Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 188 (refd)
 Madhavan Nair & Anor v. PP [1975] 2 MLJ 264 (refd)
 Malaysian Bar v. Government of Malaysia & Anor [1986] 2 CLJ 343;[1986] CLJ (Rep) 508 HC
(refd)
 Malaysian Bar & Anor v. Government of Malaysia [1987] 1 CLJ 459;[1987] CLJ (Rep) 185 SC
(refd)
 Mamat Daud v. Government of Malaysia [1988] 1 MLJ 299 (refd)
 Manohar v. State of Maharashtra AIR 1984 Bombay 47 (refd)
 Minister of Home Affairs v. Fisher [1979] 3 All ER 21 (refd)
 Mohd Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 FC (refd)
 Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 4 CLJ 105 FC (refd)
 PP v. Param Cumaraswamy (No 2) [1986] 1 CLJ 101; [1986] CLJ (Rep) 606 HC (refd)
 PP v. Pung Chen Choon [1994] 1 MLJ 566 (refd)
 PP v. Soon Seng Sia Heng [1979] 2 MLJ 170 (refd)
 PP v. Su Liang Yu [1976] 2 MLJ 128 (refd)
 Su Ah Ping v. PP [1980] 1 MLJ 75 (refd)

8. List of legislation referred :


 Courts of Judicature Act 1964, s. 42
 Federal Constitution, arts. 4, 5(1), (4), 8(1), (2),10(1)(c),(2)(a), (c), 74, 77
 Interpretation Acts 1948 and 1967, s. 17A
 Legal Profession Act 1976, ss. 46A(1)(c)(ii), 56, 57
 Legal Profession (Practice and Etiquette) Rules 1978, r. 5
 Penal Code, s. 298A
 Constitution of India [India], art. 19(1)(a), (c)
 Representation of the People Act 1951 [India], ss. 123(5), 124(5)

9. Names of the counsel :


 Appellant - Tommy Thomas (Michelle Lee with him); M/s Tommy Thomas
 1st respondent - Bastian Vendargon (Hamid Sultan with him); M/s Hamid Sultan Loga Chitra
& Assoc
 2nd respondent - Alice Loke Yee Ching (Siti Nur Ikhlas with her)

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