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• A-G: Active practice not necessary to be judge

©The Star (Used by permission)

PUTRAJAYA: The Federal Court has reserved its judgment to determine if Dr Badariah Sahamid, who has never been a practising lawyer, qualifies to serve as a judicial commissioner.

Court of Appeal president Justice Abdul Hamid Mohammad as well as Federal Court Justices Nik Hashim Nik Ab Rahman, Hashim Mohd Yusoff, Azmel Ma’amor and Zulkefli Ahmad Makinudin made the decision after hearing submissions from Attorney-General Tan Sri Abdul Gani Patail and the counsel for the Malaysian Bar, Robert Lazar.

At the outset, Lazar said the Bar had made it very clear that the appointment of Dr Badariah was not in question as it did not doubt her intellectual temperament. 

Dr Badariah is currently with the commercial division of the High Court in Kuala Lumpur.

However, he said, the issue was her eligibility as under Section 36 of the Legal Profession Act an advocate and solicitor must have a valid practising certificate, otherwise he would be an “unauthorised person”.

“An advocate and solicitor under Article 123 of the Federal Constitution clearly states that he or she must be someone in practice for the 10 years preceding his appointment to be qualified as judicial commissioner.

“Dr Badariah has not been practising as an advocate and solicitor,” he said.

In reply, Gani said the Bar’s interpretation of Article 123 was too strict.

He said Dr Badariah could be considered as practising as she was teaching her students in university.

The Government wants the Federal Court to determine if a person appointed as a judicial commissioner must be in active legal practice for 10 years before the appointment.

The application was made in response to a suit by the Bar against the Government over the appointment of Dr Badariah, a former law lecturer who has never practised as a lawyer.

The Bar, in its originating summons filed on July 27, is seeking to declare the appointment of Dr Badariah void on the grounds that her appointment had contravened Article 122AB read together with Article 123 of the Constitution.

Dr Badariah, called to the Bar in 1987 and a member of the professional qualifying board, was appointed judicial commissioner on March 1.

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