Gopal Sri Ram FCJ

(delivering judgment of the court)

The appellant is an advocate and solicitor. He is also an office bearer of a political party and a member of Parliament. He wishes to stand for and, if elected, serve on the Bar Council which is the governing body of the Malaysian Bar. Section 46A(1)Legal Profession Act 1976 (‘the Act’)

A person shall be disqualified for being a member of the Bar Council or a Bar Committee or of any committee of the Bar Council or a Bar Committee:

(b)if he is a member of either House of Parliament, or of a State Legislative Assembly, or of any local authority; or

(c)if he holds any office in:

(i)any trade union; or

(ii)any political party;

The appellant challenged the constitutionality of s 46A(1). His challenge failed before the High Court and the Court of Appeal. He has now appealed to us. The challenge is based on three broad grounds. First, that the section violates his rights of equality and equal protection guaranteed by art 8(1) of the Constitution. Second, that it violates his right of association guaranteed by art 10(1)(c). Third, that it violates his right to personal liberty guaranteed by art 5(1). He argues that in the event that any one of these rights is found to be violated, the section must be declared void as being inconsistent with the supreme law. The arguments advanced in support of the appeal require the case to be taken through several stages.

Before discussing the specific areas of challenge there are three preliminary observations that must be made. The first has to do with the methodology of interpretation of the guaranteed rights. In three recent decisions this court has held that the provisions of the Constitution, in particular the fundamental liberties guaranteed under Part II, must be generously interpreted and that a prismatic approach to interpretation must be adopted. These are Badan Peguam Malaysia v Kerajaan Malaysia Lee Kwan Woh v Public Prosecutor Shamim Reza bin Abdul Samad v Public Prosecutor rights. The duty of a court interpreting these concepts is to discover whether the particular right claimed as infringed by state action is indeed a right submerged within a given concept.

Article 5(1) may be selected to illustrate the point that is sought to be made since it is one of the provisions relied on in this case. That article proscribes the deprivation of life or personal liberty, save in accordance with law. ‘Law’ wherever mentioned in Part II of the Constitution includes — by statutory direction — the common law of England (see art 160(2) read with s 66Interpretation Acts 1948 and 1967Raymond v Honey R v Secretary of State for the Home Department, ex parte Leech Thai Trading Co (a firm) v Taylor & Anor

The other principle of constitutional interpretation that is relevant to the present appeal is this. Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that ‘Parliament may by law impose … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality’. Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as ‘such reasonable restrictions’ appear in the judgment of the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia Nordin bin Salleh & Anor v Dewan Undangan Negeri Kelantan & Ors

The second observation has to do with the test that should be applied in determining whether a constitutionally guaranteed right has been violated. The test is that laid down by an unusually strong Supreme Court in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor

In testing the validity of the state action with regard to fundamental rights, what the court must consider is whether it directly a