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Malaysian Bar loses final attempt to review decision

PUTRAJAYA, 3 Sept 2008: The Malaysian Bar failed in its final attempt to challenge the Apex court ruling that law lecturer Dr Badariah Sahamid was qualified to be appointed judicial commissioner (JC).

A five-man Federal Court quorum headed by Court of Appeal President Tan Sri Zaki Tun Azmi unanimously dismissed the Bar’s application to review its (Federal Court) previous 3-2 majority decision.

It held that Dr Badariah’s appointment as JC was valid although she did not possess active practice criterion, prior to her appointment.

The Bar sought the Federal Court to invoke its discretion under Rule 137 of the Rules of the Federal Court 1995 to review its previous decision delivered on 27 Dec 2007 claiming the majority decision resulted in a serious misinterpretation of the Federal Constitution.

This, it said, affected future appointments of similar nature to the bench.

The decision was handed down after the quorum decided that it was unnecessary for them to hear the submissions of Senior Federal Counsel Azizah Nawawi, representing the Government of Malaysia, because Bar’s arguments did not meet the threshold requirement for review.

Other members of the quorum were Federal Court judge Datuk Abdul Aziz Mohamad, Court of Appeal judge Datuk Gopal Sri Ram, Datuk Wira Mohd Ghazali Mohd Yusoff and Tengku Datuk Baharudin Shah Tengku Mahmud.

Zaki said the court’s reasons for dismissing the Bar’s application would be given at a later date.

The Bar had filed an originating summons at the Kuala Lumpur High Court, questioning the legality of Dr Badariah’s appointment which it (the Bar) claimed, required her to be a practising lawyer for 10 years before she could be appointed JC.

The high court then allowed the government’s application to refer the matter to the Federal Court because it involved interpretation of the constitution.

The legality of Dr Badariah’s appointment was brought up by the Bar, following a ruling by the Federal Court that former industrial court chairman N. Rajasegaran was not qualified to hold office as he did not possess the seven-year active practice criterion prior to his appointment.

Dr Badariah, 53, was an associate professor at Universiti Malaya’s faculty of law prior to her appointment to the bench on 1 March 2007.

She was called to the Bar in 1988. She is also an expert in banking laws, jurisprudence and legal theory.

Lawyer Robert Lazar representing the Bar submitted that the matter which was regarded as a special case should be re-heard by the Federal Court because its (the Federal Court’s) previous judgment was erroneous and contained an element of bias.

He said the manner in which the previous panel was constituted was also unfair and unconstitutional. – Bernama

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