Articles & Judgments
Selected Judgements
Badan Peguam Malaysia v Kerajaan Malaysia 2007 [FC] | Badan Peguam Malaysia v Kerajaan Malaysia 2007 [FC] |
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DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
On 27 August 2007, i.e. one day before the matter was scheduled to be mentioned before the learned Judge of the High Court, the Government of Malaysia (“Defendant”) filed a Summons in Chambers for questions of law relating to the appointment be referred to this court pursuant to section 84 of the Courts of Judicature Act 1964. On 18 September 2007, after hearing the parties, the learned Judge allowed the Defendant’s application and referred the constitutional issues to this court for its determination. The issues are as follows:
We heard the arguments on 22 October 2007 and reserved our judgments. This is my judgment. The facts are not in dispute. Dr. Badariah Sahamid graduated with a first class honours degree in law from the University of Malaya on 17 June 1978. That qualification renders her to be a “qualified person” within the meaning of the Legal Profession Act 1976. In 1979, she was conferred with a Masters in Law by the London School of Economics and Political Science (LSE), the University of London. Having completed her pupilage and having satisfied the requirements of the Act, on 26 September 1987, she was admitted as an advocate and solicitor of the High Court of Malaya. However, she never applied for nor obtained a practising certificate that would enable her to practise as an advocate and solicitor. Instead, she served as a lecturer at the Faculty of Law of the University of Malaya from 14 January 1980. On 10 April 1992 she became an Associate Professor and on 31 December 2006 a Professor, until her appointment as a Judicial Commissioner of the High Court of Malaya. No doubt she has a very impressive academic credential. However, the issue before this court is one of law, simply put, whether she is, in law, qualified for the said appointment. That calls, in particular, for the interpretation of Articles 122AB, 122B and 123. Article 122AB, in substance, provides that the Yang di-Pertuan Agong may “appoint to be judicial commissioner……… any person qualified for appointment as a judge ofthe High Courts; ………………. .” Article 122B provides for the appointment of judges of Federal Court, the Court of Appeal and the High Courts. Regarding the qualification of a person to be appointed as a judge of the High Courts, Article 123 provides: “123. A person is qualified for appointment
under Article 122B as a judge of the Federal
Court, as a judge of the Court of Appeal or as
a judge of any of the High Courts if – (a) he is a citizen; and Prior to 16 September 1963 that Article read as follows:
Clearly the changes were made as a result of the formation of Malaysia. It is Article 123(b), in particular, that calls for interpretation in this case. First, I would approach it by looking at the provision of the Constitution itself to discover the meaning intended. Under Article 123(b) there are two categories of persons who are qualified to be appointed as a judge:
The Constitution specifically mentions “an
advocate” and “a member of the legal and judicial
service”. Compare, for example, with the position in
Singapore and India. In Singapore, Article 96
provides:- “96. A person is qualified for appointment as a Judge of the Supreme Court if he has for an aggregate period of not less than 10 years been a qualified person within the meaning of section 2 of the Legal Profession Act (Cap. 161) or a member of the Singapore Legal Service, or both.” In other words, in Singapore there are three categories of persons who qualify to be appointed as a Judge:
But category (1) in the two countries differ. In Malaysia, the key words are “an advocate”. No interpretation is given as to who is “an advocate”. There is no reference to the Legal Profession Act 1967 or its predecessor at the time the Constitution was promulgated. On the other hand, in Singapore, the term used is “qualified person within the meaning of section 2 of the Legal Profession Act (Cap. 161).” In other words, specific reference is made to the meaning of “qualified person” provided in the Act. So, in Singapore, to know whether a person is qualified to be appointed as a Judge, one only has to look at the provision of the Legal Profession Act. Section 2 of the Singapore Legal Profession Act provides:
So, just to take one example, before 1st May 1993, in Singapore, a person who has passed the final examination for the degree of Bachelor of Laws in one of the universities mentioned is qualified to be appointed as a judge. He does not have to be admitted to the bar or to practice. In India, Article 124(3) of the Indian Constitution provides:
Coming back to the position in Malaysia, we have noted the two categories: an advocate and a member of the judicial and legal service. No mention is made of any other category, be it a “distinguished jurist”, a law graduate per se, or a law graduate who may be working as a lecturer, professor, banker, a government servant, a politician or who whatever. Let us now see if there is something in common between “an advocate” and “a member of the judicial and legal service” from which we can extract the intent of the Constitution. A member of the judicial and legal service can only mean a person who is employed as and works as a member of the judicial and legal service. He does the work, the judicial or legal work. There is no such thing as a “non-working” member of the judicial and legal service. He has to work as a judicial and legal officer for at least ten years before he qualifies to be appointed a judge. That is for him to gain the necessary experience to do the work of a judge when appointed. In my view, the other limb of Article 123(b), i.e. “an advocate” should be seen from the same perspective. An “advocate” must be a person who works as an advocate. He too must have the experience working as an advocate before he qualifies to be appointed a judge. It is only logical that the two limbs must be seen from the same perspective. The two categories of persons are required to have been so for ten years preceding their appointments. Why is such a requirement provided for? The obvious answer is for them to obtain experience from the work that they do as an advocate or a member of the judicial and legal service. I cannot think of any other reason for it. That being so, then, the term “advocate” must necessarily mean a person who works as an advocate or who practices law. It is interesting to note that Article 123(b) uses the word “advocate” instead of “advocate and solicitor”. Section 2 of the Advocates and Solicitors Ordinance 1948, the law in force when the Constitution was drafted and promulgated contained a definition of “advocate and solicitor” and “solicitor” as follows:
We see that, even though the term “advocate and solicitor” is used in the Ordinance, the drafters of the Constitution chose the word “advocate” when drafting the Constitution. True that the Ordinance did not define the word “advocate” even though the word “solicitor” was defined. Both are terms peculiar to the English legal profession. An advocate conducts cases in court. A solicitor does not. Bearing in mind the background of the members of the Reid Commission that drafted the Constitution, it could well be that they were influenced by the position in England where, until very recently, only advocates were appointed as judges, not solicitors, even though in the then Malaya and until now we have a joint profession. Besides, at the time when the Constitution was drafted, there was not even a law school in the then Malaya, or even when Malaysia was formed, not to speak of professors of law. There were certainly some people with a law degree in the civil service or in the private sector. But, the drafters of the Constitution only chose those advocates or members of the legal and judicial service as persons qualified to be appointed Judges. They were the “practising lawyers”. Lest I am misunderstood, I am not saying that the Constitution should be interpreted under the circumstance or in accordance with the law at the time it was drafted. If the Malaysian Constitution contains a provision similar to the Singapore Constitution i.e. “a qualified person within the meaning of section 2 of the Legal Profession Act (Cap.161)”, then whatever the meaning that is given to that term at any particular point of time the Constitution is to be interpreted, should be the meaning prevailing that should adopted. But, no definition of the term “advocate” is given in the Constitution, no provision is made that reference should be made to a provision in another 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. I shall now consider other laws where the term “advocate” is used in order to see if they are of assistance. Even in so doing, the meaning given in those laws need not necessarily be the meaning assigned to the word by the Constitution. That is because, words must be read in their contexts. As has been mentioned earlier under Section 2 of the Ordinance, “advocate and solicitor” was defined as “an advocate and solicitor admitted and enrolled under this Ordinance ……..”. Even that definition is subject to the words “unless there is something repugnant in the subject or context.” So, it is quite neutral. Under Part I of the Interpretation Acts 1948 and 1967, in section 3, “advocate” is defined as follows:
Who is “entitled to practise as an advocate and solicitor under the law in force in any part of Malaysia”? Under the Legal Profession Act 1976, “no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practising certificate authorizing him to do the act” – section 36(1). So, he must have a practising certificate before he can practise as an advocate and solicitor. Otherwise, he is an “unauthorized person” – section 36(1). He commits an offence if he acts as an advocate and solicitor – section 37. So, if we go by the Legal Profession Act 1967 “a person entitled to practise” must necessarily mean a person whose name is on the Roll and has a valid practising certificate. Under the Sarawak Advocates Ordinance (Cap. 110) only an advocate who has “a certificate to practise” is “entitled to practise in Sarawak” for a particular year – section 9. The position is the same in Sabah – see section 9 of the Advocates Ordinance (Sabah Cap. 2). Section 30(1) of the Legal Profession Act 1976, inter alia, provides:
This provision has been interpreted by the Court of Appeal in Syed Mubarak bin Syed Ahmad v Majlis Peguam Negara (sic) (2000) 4 MLJ 167. The court held that the words “gainfully employed” include a person who practises as an accountant in his own accountancy firm and not only a person “employed by another person, firm or body.” As a result he was not qualified to apply for a practising certificate. In the present case, had Dr. Badariah wanted to apply for a practising certificate, she would not even be able to raise a similar argument as in Syed Mubarak bin Syed Ahmad (supra) as she was employed by the university. In other words, she would not qualify to obtain a practising certificate even if she wanted to practise during the period she was employed by the university. We shall now look at the judgment of this Court in All Malayan Estates Staff Union v Rajasegaran & Ors. (2006) 6 MLJ 97. In that case, the respondent was admitted and enrolled as an advocate and solicitor of the High Court on 15 December 1995. He commenced legal practise on 1 April 1996 and ceased to do so on 23 January 2001. He was appointed as a Chairman of the Industrial Court on 15 January 2004. So, even though he had been admitted and enrolled as an advocate and solicitor for eight years and one month at the date of his appointment, he was in practise for only four years nine months and 22 days at that time. Section 23A(1) of the Industrial Relations Act 1967 provides:
The question was whether he was qualified to be appointed as a Chairman of the Industrial Court. This Court held that the appointment of the respondent was invalid. Augustine Paul, FCJ, delivering the judgment of this court, inter alia, said at page 110 of the report:
This supports my view expressed earlier. Further, at page 112, the learned Judge said:
Note that section 23(1) uses the words “an advocate and solicitor within the meaning of the Legal Profession Act 1976” while Article 123 uses the words “an advocate of those courts”. In section 3 of the Legal Profession Act 1976 “advocate and solicitor” and “solicitor” are defined as follows:
So, even though section 23(1) of the Industrial Relations Act 1967 specifically refers to the definition of “advocate and solicitor” in the Legal Profession Act 1967 and the definition in the latter Act only speaks about “admitted and enrolled” and not “practise”, this Court had interpreted the words “advocate and solicitor”, in the context used in section 23(1) of the Industrial Relations Act 1967 to mean a practising advocate and solicitor. On the other hand, article 123 of the Constitution makes no reference to the definition of “advocate and solicitor” in the Legal Profession Act 1967. So, in my view, there is a stronger reason to hold that the word “advocate” as used in Article 123 of the Constitution, means a practising advocate. In other words, compared to All Malayan Estates Staff Union v. Rajasegaran & Ors (supra) there is a stronger ground for the word “advocate” to be given the meaning of a practising advocate in the instant case. To summarise my findings, even though the
Constitution does not provide that to qualify to be
appointed as a judge or a judicial commissioner, an
advocate must be a practising advocate having a
practising certificate, considering the two categories
i.e. “an advocate” and “a member of the legal and
judicial service” together, the more reasonable
interpretation that should be given to the word
“advocate” is a practising advocate. This is further
strengthened by the requirement that an advocate or a
member of the judicial and legal service must have been
so for ten 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, that requirement serves no purpose
whatsoever. Unlike in Singapore where a person who has
been a “qualified person” for an aggregate period of
not less than ten years is qualified to be appointed a
judge, in Malaysia he must have been “an advocate of
those courts” for ten years preceding the appointment.
The difference is clear. In Singapore, one does not
have to be an advocate at all to qualify to be
appointed a judge. He only has to pass the final
examination for the degree of Bachelor of Laws from the
universities mentioned. So, in Singapore, the
requirement to practise does not arise. Unlike in
Singapore too, the Constitution makes no reference to
the Legal Profession Act 1967 or any other relevant
law. So, the meaning to be assigned to the word
“advocate” is not confined to the meaning of the same
word used in the Legal Profession Act 1967. In any
event, I do not find the definition of “advocate and
solicitor” in the Act of any assistance. Other
provisions in the Act are not of much assistance
either, except that without a practising certificate, a
person cannot practise as an advocate and solicitor.
If he cannot practise, then, it is meaningless to apply
the ten-year requirement to him. It does not serve any
purpose. The requirement that a person must be an advocate for at least ten years is meant to cover advocates and solicitors who practise law. It is not meant to include people who is “only in name” an advocate and solicitor merely by virtue of being admitted to the bar but spend their lives doing something else, whether teaching law, in business or politics. If they are intended to be included, the Constitution would and should have said so, as in Singapore or, more clearly in India which provides that a “distinguished jurist” is also qualified to be appointed a Judge. Furthermore, this Court has only last year interpreted the provision of section 23A(1) of the Industrial Relations Act 1967 to mean a practising advocate and solicitor even though that section specifically refers to the meaning of “advocate and solicitor” in the Legal Profession Act 1967 which only speaks of an advocate and solicitor who has been admitted and enrolled as such. The definition of the word “advocate” in Article 123 of the Constitution is not restricted to the meaning given in the Legal Profession Act 1967. I am unable to find any fault in that judgment to justify me to disagree with it. I am unable to find any justification to depart from it. On the other hand, to hold otherwise would lead to an absurd result in which, a non-practising advocate may not be appointed a Chairman of the Industrial Court but may be appointed a Judicial Commissioner, a Judge of the High Court, a Judge of the Court of Appeal, a Judge of the Federal Court or even the Chief Justice. He does not have to practise law even for a day. All he has to do is to get admitted to the Bar, then may be go into business and/or into politics and after ten years he is qualified to be a appointed even as a Chief Justice. That is the implication if this Court were to rule otherwise. It may be that the time has come for other categories of persons e.g. academicians to be included as persons qualified to be appointed as Judges especially in such areas of law as intellectual property, conventional and Islamic finance and banking and so on. But that is a matter of policy for the Government to decide. 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. This judgment is not about the suitability of Dr. Badariah to be appointed a Judicial Commissioner. Academically, she is definitely one of the most, if not the most “qualified” person to be appointed a Judicial Commissioner. This judgment is about who is qualified to be appointed a judicial commissioner or a judge under the existing law, in particular, what is meant by “an advocate” in Article 123 of the Constitution. For the reasons given above, in my judgment, Dr. Badariah, not having practised law at all since her admission to the Bar does not qualify to be appointed a Judicial Commissioner. I would therefore answer Question (i) in the affirmative. My answer to Question (iii) is in the affirmative. In view of my answer to Question (i), Question (ii) becomes irrelevant. Following the judgment of this court in All Malayan Estates Staff Union v. Rajasegaran & Ors (supra) I hold that even though the appointment of Dr. Badariah is invalid, all her judgments and orders handed down by her as a Judicial Commissioner is not a nullity by reason of the defect in her appointment. This reference should be allowed but as it is a matter of public interest, I would order that no order for costs be made in this or in the court below. Judgment of Nik Hashim Nik Ab. Rahman, FCJ: 1. This reference of constitutional question under section 84 of the Courts of Judicature Act 1964 relates to the question whether the appointment of Dr. Badariah binti Sahamid as a Judicial Commissioner (JC) of the High Court of Malaya with effect from 1 March 2007 is valid. 2. I have read through the draft judgments of the learned Chief Justice and my learned brothers Hashim Yusoff, Azmel Maamor and Zulkefli Ahmad Makinudin, FCJJJ and I find their Lordships’ judgments well reasoned and comprehensive. 3. This is my judgment, albeit a short one. 4. A broad and liberal interpretation should be given to the phrase “advocate of those courts” under Article 123 of the Federal Constitution (the FC). This call is in accord with a well-established principle that a constitution should be construed with less rigidity and more generosity than other statutes (Minister of Home Affairs v Fisher (1980) AC 319 at p329; Dewan Undangan Negeri Kelantan v Nordin bin Salleh (1992) 1 MLJ 697; Kamariah bte Ali dan Lain-lain lwn. Kerajaan Negeri Kelantan dan Satu Lagi (2005) 1 MLJ 197). 5. Barwick CJ when delivering the decision of the High Court of Australia in Attorney General of the Commonwealth, ex relatione McKinley v Commonwealth of Australia (1975) 135 CLR 1 said at p 17 :
See also Dato’ Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus (1981) 1 MLJ 29 per Raja Azlan Shah Ag. LP (as His Royal Highness then was). 6. Therefore, taking the above approach to the case before us, the interpretation as requiring only an advocate and solicitor who has been in practice (in possession of a practising certificate) preceding the appointment before he could be qualified as a JC or a Judge of the High Court, would amount to reading words which are not in Article 123 of the FC, and surely this is a wrong thing to do for the term “advocate” in the FC appears to have the same meaning as “advocate” and “advocate and solicitor” under section 66 of the Interpretation Acts 1948 and 1967 (Act 388) (Part 11) to mean an advocate and solicitor of the High Court, and under section 3 of the Legal Profession Act 1976 (Act 166) the phrase “advocate and solicitor” means an advocate and solicitor of the High Court admitted and enrolled under this Act or under any written law prior to the coming into operation of this Act. So, in the present case, although Dr. Badariah has no practising certificate under Act 166, she is an advocate and solicitor as she had been admitted and enrolled as one and there is nothing in section 3 to say that to be an advocate and solicitor one must have a practising certificate (see Samantha Murthi v Attorney-General, Malaysia & Ors (1982) 2 MLJ 126). Thus, an “advocate of those courts” under Article 123 of the FC does not necessarily need to be a practising advocate and solicitor. 7. In this regard, I, with respect, agree with the learned Attorney General that the Bar Council’s interpretation of Article 123 of the FC as requiring an advocate and solicitor who must have been in practice (in possession of a practising certificate) preceding the appointment was too rigid. A generous interpretation is called for in this case as Dr. Badariah could be considered as practising in a wider sense as she was teaching law to her students in the University of Malaya before her appointment as a JC. Therefore, in my view, the main criterion for the appointment as a JC or a Judge of the High Court is that the candidate must had 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. That is the minimum qualification, besides being a citizen, required of the members of the Bar for the appointment. Of course with that qualification, it is up to the powers that be to appoint a suitable candidate for the appointment. 8. The Federal Court case of All Malayan Estates Staff Union v Rajasegaran & Ors (2006) 4 CLJ 195 is inapplicable to and readily distinguishable from, the present case. Unlike the present case, which involves the construction of a provision in the FC, the Federal Court in Rajasegaran considered and construed the words “advocate and solicitor” in the context of the Industrial Relations Act 1967 an ordinary Act of Parliament according to ordinary rules of statutory interpretation. 9. And for those reasons, I uphold the appointment of Dr. Badariah as a JC valid as she was an advocate and solicitor of the High Court of Malaya for more than 10 years, a PhD, Law holder and also a professor at the University of Malaya before the appointment. Accordingly, my answers to questions (i) and (ii) are in the negative and affirmative respectively, while question (iii) is deemed unnecessary in view of my answer to question (i). Judgment of Zulkefli Bin Ahmad Makinudin FCJ: I have
read the judgment in draft of my learned brother Abdul Hamid Mohamad, CJ and I
agree with the views expressed and the decision reached by his lordship on the
questions referred for the determination of this Court on the interpretation of
Article 123 of the Federal Constitution. I would like to state my views in
support of the judgment of his lordship on some of the issues raised by the
parties as follows:
It was further argued for the defendant since Dr Badariah bte Sahamid had been
admitted as an advocate and solicitor in 1987 under section 10 of the LPA 1976,
then she is eligible to practise as an advocate and solicitor under the LPA
1976. The defendant took the stand that the words “advocate of those courts” in
Article 123 of the Federal Constitution must mean a person who has been admitted
as an advocate and solicitor and has been enrolled as an advocate and solicitor
of the High Court of Malaya, no matter whether he or she is in actual practise
or not.
I am of the view to be an advocate of those courts, a person has to be in actual
or active practice, besides having first been admitted and enrolled under the
provision of the LPA 1976 as an advocate and solicitor. It further follows that
to enable to practise, an advocate and solicitor has to apply for and be issued
with a practising certificate. [See sections 29(1) and 30(1) of the LPA 1976].
Section 35(1) of the LPA 1976 provides that subject to the exceptions in Article
35(2), only advocates and solicitors have the exclusive right to appear and
plead in all Courts of Justice in Malaysia. A person who is admitted as an
advocate and solicitor but does not possess a valid practicing certificate is
termed as “an unauthorized person”. [See section 36(1) of the LPA 1976].
The Federal Court came to the conclusion that the seven years stipulated in
section 23A(1) of the IRA means that the person must have been in practise for
that period of time and must be construed as a reference to an advocate and
solicitor who has been in practise under the LPA 1976. I am of the view the
reasoning in Rajasegaran’s case applies with equal, if not greater force to the
present case. The only difference between Article 123 of the Federal
Constitution and section 23A(1) of the IRA is that the number of years 10 in the
Federal Constitution and 7 in the IRA, and the phrase “advocate of those courts”
in the Federal Constitution reads as “advocate and solicitor within the meaning
of the Legal Profession Act 1976” in the IRA. Again, in Rajasegaran’s case it
shows that an advocate can only gain experience by being in practise. If a
narrow construction is adopted to interpret Article 123 of the Federal
Constitution in that an advocate need not be in active practice to be eligible
for appointment as a Judge or as a Judicial Commissioner, and applying the
principles enunciated in Rajasegaran’s case it would lead to an absurd
consequence in that a person who is ineligible to be appointed as Chairman of
the Industrial Court [inferior court], could be appointed as a Judge or as a
Judicial Commissioner of the High Court. Judgment of Azmel Haji Maamor, FCJ: I have the benefit
of reading the judgments in draft of my four learned brothers. After having
considered them I would agree with the views expressed and the decision arrived
by my learned brother Hashim Yusoff FCJ. In support of his lordship’s judgment I
hereby state my views.
I shall now apply the aforesaid principles of constitutional interpretation in
dealing with the instant case as it involves a provision of the Federal
Constitution. Firstly, the term “advocate and solicitor” or “advocate” had been
decided differently by two different Federal Court cases. In the case of M Sammantha Murthi v The Attorney-General & Ors
[1982] CLJ (Rep) 213 the panel of
three renowned Federal Court judges all of whom had held the post of Lord
President (Suffian, Raja Azlan Shah and Salleh Abas) in interpreting S.13(1) of
the Legal Profession Act,1976 (LPA),Suffian LP, in delivering the decision of
the court, ruled:-
The recently decided Federal Court case of All Malayan Estate Staff Union v Rajasegaran & Ors
[2006] 6 MLJ 97 ruled that for purposes of S.23A of the
Industrial Relations Act 1967 (IRA) in order for an advocate and solicitor to be
qualified to be appointed as a Chairman of the Industrial Court he must have a
practising certificate. i) “actively practising law; and I have already explained why the need for a person having a practising
certificate to be “actively practising law”. In addition to that such person to
be qualified for the appointment must be in active practice immediately
preceding his appointment. We do not want a case of a person to have been in
active practice for 10 years but then does work not related to legal practice
for the next 20 years before being appointed a Judicial Commissioner, even
though he may be a qualified person if the word “immediately” is not inserted
before the word “preceding”. If these 2 requirements are added then we may be
able to get the “really appropriate and proper” qualification requirements.
In the light of the precedent created through the appointment of Dr Visu
Sinnadurai and the lack of objection by the Bar Council I am of the view that it
would be highly unfair and certainly most unconscionable on the part of the Bar
Council to practise a double standard. Such differing treatment by the Bar
Council should not be condoned by this court at all. 27 December 2007 Counsel: For the plaintiff : Robert Lazar Solicitors : Tetuan Sivananthan For the defendant : Tan Sri Abdul Gani Patail,
Attorney General Solicitors : Jabatan Peguam Negara
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Judgment of Abdul Hamid Mohamad CJ: By an Originating
Summons dated 27 July 2007, the Bar Council (“Plaintiff”) prayed for “a
declaration that the appointment of Dr. Badariah bte Sahamid as a Judicial
Commissioner of the High Court of Malaya is null and void and of no effect on
the ground that the said appointment is in contravention of Article 122AB read
together with Article 123 of the Federal Constitution.”
