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 ©New
Straits Times (Used by permission)
KUALA LUMPUR: The controversial appointment of academician Dr Badariah Sahamid
as judicial commissioner is far from over.
The Bar Council filed an application on March 21 to the
Federal Court to review its 3 to 2 majority ruling handed down in December last
year.
Council president Ambiga Sreenevasan, in her grounds for the review, said there
was still an element of uncertainty in the ruling.
“There were also grounds of bias, by one of the judges, which was evident from
the language used in the judgment,” she said.
Badariah, who was appointed judicial commissioner on March 1
last year, is currently attached to the High Court’s civil division here.
On Dec 27, the apex court ruled that the appointment of Badariah was
constitutional.
Federal Court judges Datuk Nik Hashim Nik Ab Rahman, Datuk Hashim Yusof and
Datuk Azmel Ma’amor, who were in the majority, held that Badariah was qualified.
Chief Justice Datuk Abdul Hamid Mohamad and Datuk Zulkefli Ahmad Makinuddin gave
dissenting judgments.
Abdul Hamid and Zulkefli said Badariah was not qualified because she was not in
active practice for at least 10 years as a lawyer or in the judicial and legal
service.
Azmel said in his judgment that there was a previous precedent of a High Court
judge who was appointed although he did not have the necessary 10 years
experience as an advocate.
He said Dr Visu Sinnadurai, who was a law professor at Universiti Malaya, was
appointed a judge while he served as commissioner for law revision.
He said Visu’s case could be regarded as a precedent as to how the previous
authorities construed Article 123 of the Federal Constitution, concerning
qualification.
“The council did not raise any objection to his appointment. Why is there an
objection by the council in the case of Badariah?
“Why in one case it is condoned and in the other it was objected? Why the
inequality in treatment of these two persons?” he asked.
In light of the precedent, Azmel said it was highly unfair for the council to
practise double standards.
“Such differing treatment by the council should not be condoned by this court,”
he said.
Hashim had said it was fallacious to argue that legal experience was a
requirement under Article 123, which could only be obtained as a “practising
advocate".
Hashim said while legal experience could commonly be gained through legal
practice, it was not the only way to gain knowledge.
Hashim said Badariah had wide knowledge and experience in several areas of law.
“As a lecturer in law, she has been responsible in teaching and training
numerous advocates and solicitors,” he said.
Nik Hashim, in his judgment, said he agreed with Attorney-General Tan Sri Abdul
Gani Patail’s submission, that the council’s interpretation of Article 123,
requiring that an advocate should be in practice, was too rigid.
“A generous interpretation is called for in Badariah’s case.
“This is because it could be considered in a wider sense as she was teaching law
to students in Universiti Malaya before her appointment.”
He said the main criterion for the appointment of a judicial commissioner was
that the candidate must be called to the Bar and enrolled as an advocate, and it
did not matter if she did not possess a practising certificate.
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