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©Bernama
(Used by permission)
PUTRAJAYA, Dec 27 (Bernama) -- The Federal Court Thursday ruled that law
lecturer Dr Badariah Sahamid was qualified to be appointed as a judicial
commissioner (JC).
In a 3-2 majority decision, the court ruled that her appointment as a JC is
valid as she had been an advocate of the High Court in Malaya for 10 years
preceding her appointment within the meaning of Article 123 of the Federal
Constitution.
The majority judgment came from Federal Court Judges Datuk Nik Hashim Nik Ab
Rahman, Datuk Hashim Yusoff and Datuk Azmel Maamor while Chief Justice Datuk
Abdul Hamid Mohamad and Federal Court Judge Datuk Zulkefli Ahmad Makinudin
dissented. The five judgments were read out by three deputy registrars of the
court.
The Malaysian Bar had filed an originating summons challenging the appointment
of Dr Badariah, a Universiti Malaya lecturer, on the grounds that the
appointment contravened Articles 122AB and 123 of the Federal Constitution. It
claimed that the two articles required a person to be a practising lawyer for 10
years before he or she could be appointed as a judicial commissioner.
The High Court referred the matter to the Federal Court on application by the
government on grounds that it involved interpretation of the constitution.
In a supporting affidavit, Bar president Ambiga Sreenevasan said Dr Badariah did
not apply for the Practising Certificate or Annual Certificate which was
compulsory for a defence counsel and, at the time of the appointment on March 1,
was only a lecturer at Universiti Malaya's Law Faculty and not an employee of
the Judicial and Legal Department.
Justice Hashim in his judgment, said Dr Badariah had wide knowledge and
experience in several areas of the law and as a lecturer in law, had been
responsible in teaching and training numerous advocates and solicitors.
"I can see no valid reason why a person of her standing and experience in law
should be deprived of her privilege and benefit of being appointed as a judicial
commissioner," he said, adding that the the administration of justice and the
public had more to gain than lose from her appointment.
"It is fallacious to argue that legal experience, if indeed it is a requirement
of Article 123 of the Federal Constitution, can only be obtained as a 'practising
advocate'. While legal experience can commonly be gained by legal practice, it
is not the only or exclusive means of gaining legal experience."
He said Section 38(g) of the Legal Profession Act (LPA) specifically recognised
a full-time law lecturer acting as an advocate and solicitor in solely advisory
capacity upon instructions from a practising advocate and solicitor.
"What more, a person is qualified for appointment as a judge of the High Court
if he has been a member of the Judicial and Legal Service for the 10 years
preceding his appointment even if he were to have been posted in the Drafting
Division of the Attorney General's Chambers and may not even have gone to court
even once during his tenure there," he said.
"That being the case, I hold that Dr Badariah was qualified to be appointed as a
judicial commissioner as she had been an advocate of the High Court in Malaya
for 10 years preceding her appointment within the meaning of Aticle 123 of the
FC," he said.
Justice Azmel said Dr Badariah's legal qualification was impeccable and even
counsel for the Bar had admitted that what the Bar was complaining about was not
her legal qualification, but merely that she did not have a practising
certificate.
"In my view, getting a practising certificate after one has been admitted as an
advocate and solicitor would not require further legal qualification. It only
requires monitory or administrative qualification," he said.
Azmel said that if a person was required to be in active practice immediately
preceding his appointment, then it would mean that a number of judges already
appointed to the judiciary would be declared to have been invalidly appointed.
He cited as examples former judges Datuk Syed Ahmad Idid, who was employed by
Public Bank Berhad, and Yaacob Ismail, who was employed by Petroleum Nasional
Bhd, immediately preceding their appointments as JCs.
"Both of them have served and left the judiciary without any objection by
anybody. Judge Rohana Yusof was employed by Bank Negara immediately preceding
her appointment as JC. Presently she is still serving as a High Court Judge," he
said.
Azmel said that even though these three people were at one time members of the
Judicial and Legal Service, the moment they left the said service, their
eligibility would have also ceased.
He also cited the case of former judge Dr Visu Sinnadurai, who was straightaway
appointed a High Court judge while serving as Commissioner of Law Revision for a
few years (less than 10 years). Prior to that, he was gainfully employed as a
Law Professor at the Law Faculty, UM.
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Circular No 297/2008
