Wan Afrah Ibrahim JC:

The first respondent is presently a Chairman of the Industrial Court and is presiding over an employment dispute in the Industrial Court involving the applicant. Before his present appointment he was admitted as an advocate and solicitor of the High Court on 15 December 1995 and remained so until the day of his appointment to his present position on 15 January 2004. The first respondent only commenced practice as an advocate and solicitor on 1 April 1996 and ceased practice on 23 January 2001. However, despite being on the Roll of advocates and solicitors for more than eight years, he was only in actual practice for four years nine months and 22 days (as confirmed by the Malaysian Bar Council). None of these facts are in dispute.

The applicant has now filed an application for judicial review claiming for the following reliefs:

(a) a writ of quo warranto for the purpose of disqualifying the first respondent as a Chairman of the Industrial Court;

(b) a declaration that the appointment of the first respondent, as a Chairman of the Industrial Court by the second and third respondents is null and void and of no legal effect;

(c) an order of mandamus directed to the second and third respondents to rescind or revoke the appointment of the first respondent, as a Chairman of the Industrial Court;

(d) an order directed to the second and third respondents to stay the appointment of the first respondent, as a Chairman of the Industrial Court until the disposal of this court's decision.

(e) that an injunction be granted to restrain the first respondent from exercising the powers, duties and functions of a Chairman of the Industrial Court and from claiming any rights, privileges or emoluments attached to that office;

(f) If necessarily, further or other consequential orders and directions; and

(g) Costs of this application be costs in the cause.

Clearly the essence of the claimant's application is to seek the removal of the first respondent from his position as a Chairman of the Industrial Court. The gist of the claimant's argument is as follows: Industrial Relations Act 1967, s. 23A (the Act) provides that a person appointed as a Chairman of the Industrial Court should have been in active practice for at least seven years prior to his appointment. Since the first respondent does not possess the requisite qualifications as set out under the said provision, his appointment is null and void. The Attorney General that appears on behalf of the respondents disputes the claimant's argument and submits that the appointment of the first respondent was proper and in accordance with the said provision. The second respondent has even deposed an affidavit stating to the effect that it found the first respondent to be sufficiently qualified for his appointment as a Chairman of the Industrial Court. That may be the second respondent's view, but it is ultimately for this court to decide whether or not the first respondent is qualified under the said provision.

The crux of this issue in this application revolves around the statutory construction of the s. 23A(1) of the Act which provides as follows:

23A. (1) A person is qualified for appointment as President under section 21(1)(a) and as Chairman under section 23(2) if, for the seven years preceding his appointment, he has been an advocate and solicitor within the meaning of the Legal Profession Act 1976 [Act 166] or a member of the judicial and legal service of the Federation or of the Legal service of a State, or sometimes one and sometimes another.

The Applicant's Submission

The applicant's counsel has urged this court to appreciate the historical basis for the introduction of this provision which was introduced by the Industrial Relations (Amendment) Act 1989 (Act A718) and came into force on 10 February 1989.

He has submitted that prior to the amendment, the qualifications of a Chairman of the Industrial Court was not specified. All appointments were made pursuant to s.