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©The
Star (Used by permission)
by M. Mageswari and Paul Choo
PUTRAJAYA: The Federal Court ruled in a 3-2-majority judgment that former
law lecturer Dr Badariah Sahamid is qualified to be a judicial commissioner (JC).
The rather unusual judgment saw the current Chief Justice Abdul Hamid Mohamad
and another Federal Court judge dissenting strongly on the issue.
The three judges who declared Dr Badariah’s appointment valid were Federal Court
judges Justices Nik Hashim Nik Ab. Rahman, Hashim Yusoff and Azmel Maamor.
The trio, therefore, dismissed the application by the Malaysian Bar, which named
the Government as the sole defendant, with costs yesterday.
Justice Nik Hashim ruled that Dr Badariah could be considered practising “in a
wider sense” as she was teaching law at Universiti Malaya before her appointment
as a JC.
“In my view, the main criterion for the appointment as a JC or a Judge of the
High Court is that the candidate must have been called to the Bar and admitted
and enrolled as an advocate and solicitor for 10 years and it does not matter if
the candidate, like Dr Badariah here, did not possess a practising certificate
preceding the appointment,” he said.
In a separate written judgment, Justice Hashim said the definition of “advocate”
in Section 3 of the Interpretation Acts 1948 & 1967 did not appear to apply to
the meaning of the word “advocate” in the Federal Constitution.
“Similarly in Article 123 of the Federal Constitution, if Parliament had
intended that only legally qualified appointees who had actually practised for
10 years to qualify for appointment as a High Court judge or JC, the draftsman
would have used the words 'a practising advocate' or 'legal practitioner'
instead of the word 'advocate' in Article 123 of the Constitution,” he said.
Justice Azmel, who described Dr Badariah’s legal qualification as impeccable,
echoed the sentiment.
In his judgment, Chief Justice Abdul Hamid ruled the appointment invalid as he
considered an advocate as a person who works as an advocate or who practises
law.
“By looking at the provision of the Constitution itself, in my view, the more
reasonable meaning that should be given to the word 'advocate' is a practising
advocate,” the top judge said.
He said this was further strengthened by the requirement that an advocate or a
member of the judicial and legal service must have been so for 10 years.
“That requirement can only mean to enable the advocate or the officer to gain
experience at the Bar or in the service before he is appointed. Otherwise, the
requirement serves no purpose whatsoever,” he said.
He said the time may have come for other categories of persons such as
academicians to be included as persons qualified to be appointed judges,
especially in such areas of law as intellectual property, conventional and
Islamic finance and banking.
“But that is a matter of policy for the Government. It is not right for the
court to rewrite the Constitution under the pretext of interpreting it to sneak
in someone under the two existing categories when he or she does not really
belong to either of them,” he said.
He said Dr Badariah, not having practised law at all since her admission to the
Bar, does not qualify to be appointed a JC.
“I hold that even though the appointment of Dr Badariah is invalid, all her
judgments and orders handed down by her as a JC are not a nullity by reason of
defect in her appointment.
“As it is a matter of public interest, I would order that no order for costs be
made in this court,” he added.
Federal Court judge Zulkefli Ahmad Makinudin, who agreed with the top judge,
said Dr Badariah's appointment as JC with effect from March 1 was null and void.
“In my view, an advocate can only gain experience by being in practice.
“It is to be noted that under the same Article 123 of the Federal Constitution
even a member of the Judicial and Legal Service of the Federation must have the
requisite number of years of working experience to be eligible for appointment
as a judge or a JC,” he added.
Attorney-General Tan Sri Abdul Gani Patail said he did not think anything
strange about the decision.
“It is a majority decision. It shows total independence,” he added.
Dr Badariah – from dean to JC
DR BADARIAH SAHAMID, 52, is former dean of the law faculty at
Universiti Malaya (UM) where she also lectured and was associate professor.
Her field of expertise is banking law, jurisprudence and legal theory.
She graduated from UM with a law degree in 1978, and received her Masters from
the University of London a year later.
In 1987, she was called to the Bar and was a member of the professional
qualifying board.
Dr Badariah received her law doctorate from UM in 2001 and was appointed
judicial commissioner on March 1, 2007.
Judicial commissioners are appointed for a term of two years and have the power
to perform the same functions of a High Court judge.
The Yang di-Pertuan Agong appoints JCs on the advice of the Prime Minister, who
consults the Chief Judge on the appointments.
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