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Straits Times (Used by permission)
PUTRAJAYA: Chief Justice Datuk Abdul Hamid Mohamad said High Court judges
and judicial commissioners must have at least 10 years' experience as an
advocate or a member of judicial and legal service before they can be appointed.
In his dissenting judgment over academician Dr Badariah
Sahamid's appointment as judicial commissioner, Abdul Hamid said while the court
recognised her academic qualifications, the judgment was about who was qualified
under the existing law, especially what was meant by an advocate in Article 123
of the Federal Constitution.
The chief justice said the requirement that a judge must be a person who is an
advocate for at least 10 years' is meant to cover advocates who practise law.
Abdul Hamid said it was not meant to include people who were advocates "only in
name" or were admitted to the Bar but spent the rest of their lives doing
something else like teaching law or engaging in business or politics.
"If they are intended to be included, the Constitution would and should have
said so," he said.
The Chief Justice said the apex court had ruled last year
that a non-practising advocate may not be appointed Industrial Court chairman.
He said by ruling otherwise, as in this case, would "lead to an absurd result"
with someone being appointed a judicial commissioner, a High Court judge, a
judge at the Court of Appeal or the Federal Court or even a chief justice.
"All he has to do is to get admitted to the Bar, then maybe go into business or
into politics, and after 10 years he is qualified to be appointed even as a
chief justice," he said.
He said it may be time that other categories of persons like academicians were
included as 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 to decide," he said.
"It is not right for the court to rewrite the Constitution on the pretext of
interpreting it to sneak in someone under the existing categories when the
person does not really belong to either of them."
Federal Court judge Datuk Zulkefli Ahmad Makinuddin, who also gave a dissenting
judgment, said to be an advocate, as prescribed under the Constitution, a person
must be in active practice.
"A person who is admitted as an advocate and solicitor, but does not possess a
valid practising certificate, is termed as 'an unauthorised person'," he said.
"The 10-year period would mean it is a vital requirement before Badariah's
appointment as a judicial commissioner was made in the present case.
"She had to show that she has at least 10 years experience as a practising
advocate. This she had failed to do so."
Zulkefli said an advocate can only gain experience by being in practice.
On July 27, the Bar Council filed an action at the Kuala Lumpur High Court
challenging the appointment of Badariah.
Following the government's application, the High Court referred the matter to
the Federal Court to deliberate on constitutional issues.
Attorney-General Tan Sri Abdul Gani Patail, who represented the government, told
reporters after the decision that the majority judgment showed that the
Malaysian judiciary was independent.
He said Badariah was qualified to be a judicial commissioner and the fact that
her appointment was approved by the previous chief justice Tun Ahmad Fairuz
Sheikh Abdul Halim, but was not agreed upon by Abdul Hamid, should not be
scrutinised.
Bar Council chairman Ambiga Sreenevasan said the two strong dissenting judgments
including that of Abdul Hamid showed Badariah's appointment was not clear.
She said the Bar Council was raising the issue in light of a judgment made in
the recent case involving former Industrial Court chairman, N. Rajasegaran.
The Federal Court ruled that his appointment was invalid as he was not in active
practice for seven years as required under the Industrial Relations Act 1967.
Badariah declined to meet reporters at the Kuala Lumpur High Court to comment on
the decision.
Badariah's appointment 'valid'
by A. Hafiz Yatim
PUTRAJAYA: In a 3-2 majority, the apex court ruled that the appointment of
academician Dr Badariah Sahamid as judicial commissioner was valid.
Federal Court judges Datuk Nik Hashim Nik Ab Rahman, Datuk
Hashim Yusoff and Datuk Azmel Ma'amor held that Badariah was qualified, while
Chief Justice Datuk Abdul Hamid Mohamad and Datuk Zulkefli Ahmad Makinuddin gave
dissenting judgments.
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 Bar Council did not raise any objection to his appointment," he said.
"Why is there an objection by the Bar 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 he was of the view it was highly unfair
for the Bar to practise double standard.
"Such differing treatment by the Bar should not be condoned by this court," he
said.
Besides Visu's case, Azmel said the appointment of other previous judges namely
Yaacob Ismail (former Petronas employee) and Datuk Syed Ahmad Idid (former
Public Bank Bhd employee), and present judge Datuk Rohana Yusof (former Bank
Negara employee) can also be questioned on their validity.
Hashim said it was fallacious to argue that legal experience was a requirement
of Article 123 which could only be obtained as a "practising advocate".
Hashim said while legal experience can commonly be gained through legal
practice, it is not the only way to gain knowledge.
He said Badariah had wide knowledge and experience in several areas of law and
legal cases.
"As a lecturer in law, she has 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 to be a judicial commissioner.
"The administration of justice and the public has more to gain than lose if she
is appointed," he said.
Nik Hashim in his judgment said he agreed with the attorney-general's submission
that the Bar 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.
He added that 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 does not matter if she did not possess a practising certificate.
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