Abdul Hamid Mohamad CJ:

[1] 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 Art. 122AB read together with Art. 123 of the Federal Constitution."

[2] On 27 August 2007, ie, 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 s. 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:

i. Whether the words "advocates of those courts" appearing in Article 123 of the Federal Constitution requires an Advocate to have been in practice for a period of ten years preceding his/her appointment as a Judicial Commissioner under Article 122AB of the Federal Constitution?

ii. If the answer to Question I is in the negative, is the appointment of Y.A. Dr. Badariah Sahamid as a Judicial Commissioner of the High Court of Malaya with effect from 1 Mac 2007 valid?

iii. If the answer to Question I is in the affirmative, is the appointment of Y.A. Dr. Badariah Sahamid as a Judicial Commissioner of the High Court of Malaya with effect from 1 Mac 2007 null and void?

[3] We heard the arguments on 22 October 2007 and reserved our judgments. This is my judgment.

[4] 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 Arts. 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 of the High Courts; ... ."

[5]Article 122B provides for the appointment of judges of Federal Court, the Court of Appeal and the High Courts.

[6] Regarding the qualification of a person to be appointed as a judge of the High Courts, Art. 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

(b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one of sometimes another.

[7] Prior to 16 September 1963 that article read as follows:

123. A person is qualified for appointment as a judge of the Supreme Court if:

(a) he is a citizen; and

(b) has been an advocate of t