JUDGMENT

Alauddin Mohd Sheriff JCA:

Introduction

By way of a notice of motion dated 31 January 2002 the appellant applied for judicial review wherein he sought the following orders:-

(a) A declaration that, notwithstanding the appellant's appointment as Vice President of Parti Rakyat Malaysia ("PRM") on 14 July 2001, he is not disqualified from being a member of the Bar Council ("BC") 2001-2002; and

(b) A declaration that, notwithstanding the appellant continuing to hold the office of Vice President of PRM, he is not disqualified from offering himself as a candidate for election to the BC 2002-2003 and in subsequent years; and

(c) In the event it becomes necessary for amendments to be made to these declarations, the appellant shall seek leave of the court at the appropriate time to move for the addition of the following declarations:-

(i) A declaration that s. 46A(1)(c)(ii) ("the impugned statutory provison") of the Legal Profession Act 1976 ("the Act") is inconsistent with the Federal Constitution ("FC") and is in consequence void; and

(ii) A declaration that, notwithstanding his holding of the office of Vice President of PRM, the appellant is entitled to take office and serve as a member of the BC 2002-2003 and, if elected, in subsequent years.

The grounds upon which this application is made are set out in the supporting statement and are as follows:-

(a) The impugned statutory provision in purporting to:-

(i) disqualify the appellant from being a member of the BC 2001-2002,

(ii) disqualify the appellant from offering himself as a candidate for election by postal ballot in October/November 2001 for membership of the BC 2002-2003 and in subsequent years,

is unconstitutional by reason of the breach of the fundamental rights of the appellant entrenched in Part II of the FC;

(b) The impugned statutory provision is contrary to the appellant's right to freedom of association enshrined in art. 10(1)(c);

(c) The impugned statutory provision is in breach of the equality provisions of art. 8(1);

(d) The impugned statutory provision results in unfair discrimination of the appellant contrary to art. 8(2);

(e) The impugned statutory provision has the effect of depriving or impinging on his personal liberty contrary to art. 5(1); and

(f) The appellant's said fundamental freedoms are directly affected or the effect or consequence on the said fundamental rights by the impugned statutory provision is to make their exercise ineffective or illusory because the appellant is not permitted to hold the office of Vice President, PRM and the office of member of the BC simultaneously.

This application was dismissed by the learned High Court Judge sitting at Kuala Lumpur on 17 July 2002.

It is against the above order that the appellant now appeals to this court.

Factual Background

The facts in these proceedings are not in dispute. They are:-

(i) The appellant is an advocate and solicitor of the High Court of Malaya, having been called to the Malaysian Bar ("MB") in June 1987. He has been in continuous practice since his call;

(ii) In the years 1997 and 1998 he was elected to serve as the Kuala Lumpur Bar State Representative on the BC. In both years he was elected by members of the Kuala Lumpur Bar;

(iii) The appellant stood for the first time in October 1998 for election by postal ballot to be cast by all the members of the MB and was duly elected to the BC in November 1999 and in two succeeding years, 2000 and 2001;

(iv) In May 1999, the appellant joined a political party, PRM as an ordinary member;

(v) On 14 July 2001, the appellant was elected Vice President of PRM; and

(vi) In November 2001, the appellant was again elected by way of postal ballot to serve on the BC 2002-2003.

Grounds Of Appeal

Before us, the learned judge's decision was attacked on the following grounds:

(i) The learned judge erred in law in determining that the disqualification of the appellant from simultaneously holding the office of a member of the BC and the office of Vice P