Legislation disqualifying political office holders from serving on professional regulatory bodies is justified to ensure independence and is compliant with constitutional rights under proportionality standards.

Gopal Sri Ram FCJ:

[1] 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) of the Legal Profession Act 1976 ("the Act") prohibits him from doing so. It says, among other things not relevant here:

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;

[2] 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.

[3] 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 2008 MarsdenLR 4193 , Lee Kwan Woh v. PP 2009 MarsdenLR 1356 and Shamim Reza v. Public Prosecutor 2009 MarsdenLR 4194 . The provisions of Part II of the Constitution contain concepts that house within them several separate 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.

[4]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. 66 of the Consolidated Interpretation Acts of 1948 & 1967). It is now well-settled that by the common law of England the right of access to justice is a basic or a constitutional right. See, Raymond v. Honey [1983] 1 AC 1, 13; R v. Secretary of State for the Home Department, ex parte Leech