41. Karpal asks for Review

The Bar Council has been urged to seek a review of the Federal Court majority judgment which ruled that the appointment of academician Dr Badariah Sahamid as a judicial commissioner was valid.

The Chief Justice, Dato Abdul Hamid Mohamad, in his dissenting judgement said:

"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.

Following the judgment of this court in All Malayan Estates Staff Union v. Rajasegaran & Ors 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."

Lawyer Karpal Singh said the review was necessary as the judgment should not be allowed to become precedent and that it would not be in the public's interest.

"The Federal Court should constitute itself a nine-member bench to determine the correct interpretation of the Federal Constitution with regards to the appointment of judicial officers to the High courts," he said in a statement.

Karpal said the judgment was in conflict with the decision of an earlier unanimous Federal Court ruling which held that industrial court presidents and chairmen must be in active law practice for at least seven years prior to their appointments.

On Thursday, Federal Court judges Datuk Nik Hashim Abdul Rahman, Datuk Hashim Yusoff and Datuk Azmel Ma'amor, who were in the majority, held that Badariah's appointment was constitutional.

They held that Badariah was in practice because she had attained knowledge and experience as a law lecturer.

Chief Justice Datuk Abdul Hamid Mohamad and Datuk Zulkefli Ahmad Makinuddin, who gave dissenting judgments, said Badariah was not qualified because she was not in active practice for at least 10 years as a lawyer or in the judicial and legal service.

Karpal said it was surprising for the majority to ignore the earlier Federal Court decision made only last year, which held that an Industrial Court chairman must be in active practice to gain experience, either as a lawyer or in the judicial and legal service.

He said the argument by Azmel that there was a previous precedent in the case of Dr Visu Sinnadurai, although he did not have the necessary experience as lawyer, did not mean that his appointment as High Court judge was constitutional.

He said Visu's case could not be regarded as precedent as there was no judicial pronouncement about his appointment.

Karpal said it was wrong for Azmel to declare that there was no legal challenge to Visu's appointment because there was one pending before the Court of Appeal. "If the Bar Council did not ask for a review, then I will take up the pending application to declare Visu's appointment as unconstitutional to the Federal Court."

Bar Council chairman Ambiga Sreenevasan said the next course of action would be decided at its monthly meeting next week.

"Our lawyers are looking into several options following the majority judgment," she said. (The Malaysian Bar)

Bravo Bar Council, that's the way forward. If judges are appointed unconstitutionally, and they are aware of it, what justice do you expect from them? How can a lawyer, WITH ANY PRIDE, face them in court? This is a matter of JUSTICE !