The court upheld the validity of a judicial commissioner's appointment despite non-practice, emphasizing broad constitutional interpretation and limiting grounds for review to procedural injustices.

Zaki Azmi Chief Justice

This is an application under r 137 of the Rules of the Federal Court 1995, seeking to obtain leave to review the decision of this court in respect of the validity of appointment of a judicial commissioner pursuant toart 123 of the Federal Constitution . This court by a majority decision given on 27 December 2007 held that the appointment of Dr Badariah bt Sahamid as a judicial commissioner was valid. The decision was by a majority of three to two. The majority decision was delivered by Nik Hashim, Azmel and Hashim FCJJ. The minority judgment was by Abdul Hamid Mohamad CJ and Zulkefli Ahmad Makinudin FCJ. [2009] 2 MLJ 161 at 169

We have dismissed the application on 3 September 2008 and I now give my reasons.

As a brief background, Dr Badariah was appointed a judicial commissioner of the High Court of Malaya with effect from 1 March 2007. She was a professor and a lecturer at the Law Faculty of the University of Malaya prior to her appointment. As to her academic qualification, no one disagreed that Dr Badariah is a highly qualified lady. She received a first class honours degree in law from University of Malaya on 17 June 1978. The following year, she was conferred a Masters in Law by the University of London and subsequently in 2001 she obtained a doctorate from the University of Malaya. While being a lecturer at the university, Dr Badariah sought and was admitted as an advocate and solicitor of the High Court of Malaya on 26 September 1987. She had therefore been enrolled as an advocate and solicitor of the High Court of Malaya for about 20 years. She however had never applied for a practising certificate. In other words, she had never been a practising advocate and solicitor.

About four months after Dr Badariah was appointed a judicial commissioner, the applicant filed an originating summons in the High Court seeking a declaration that the appointment of Dr Badariah as a judicial commissioner of the High Court of Malaya was null and void on the ground that the said appointment contravenes art 122AB read withart 123 of the Federal Constitution . At the request of the defendant, the matter was referred to the Federal Court pursuant tos 84Courts of Judicature Act 1964

The notice of motion sought the following orders pursuant to r 137 of the Rules of the Federal Court 1995court that:

(a)The majority judgments of this court pronounced on 27 December 2007 be set aside and that the special case be re-heard by this court.

(b)In the alternative, the judgment of Azmel bin Haji Ma’amor FCJ be set aside and that the special case be re-heard by this court.

(c)Such further or other relief that this court deems fit to grant in the circumstances.

At the beginning of the hearing, there was a suggestion that this application also involves the question of jurisdiction ie whether this court has the jurisdiction to grant the orders sought by the applicant. Puan Azizah for the respondent conceded that this court has that jurisdiction. Therefore the question of whether the court has the jurisdiction to review under r 137 is not in issue. Furthermore, since the question of jurisdiction was never raised by [2009] 2 MLJ 161 at 170either party and therefore was not argued, in my opinion, it is not proper for this court to delve into that issue. The only question is that whether on the facts of this case, leave should be granted.

In his submission before us, Mr Lazar based his application for review on three broad grounds.

(a)The majority decision given on 27 December 2007 was in error and has resulted in a serious misinterpretation of the Federal Constitution that may affect future appointments of this nature to the Bench.

(b)The empanelment of the panel hearing the special case on 22 October 2007 was unfair.

(c)There was a clear element of bias in the judgment of Azmel Haji Ma’amor FCJ.

MISINTERPRETATION

I will look into the facts of this case to determine whether the order sought should be granted or not. In other words, whether the a