Authored By: TAN GUAN YOU
UNIVERSITI KEBANGSAAN MALAYSIA
Federal Court, Malaysia
Introduction
Does the term “advocate” in Article 123 of the Malaysian Federal Constitution (“FC”) extend to include a law lecturer? Can someone who has never practiced as an advocate in court be appointed as judge in Malaysia? This intriguing question lay at the heart of Badan Peguam Malaysia v Kerajaan Malaysia. Presided over by Abdul Hamid CJ, the former Chief Justice, this case defined the qualifications for judicial appointments in Malaysia.
The controversy began when the Malaysian Bar (“plaintiff”) challenged the appointment of Dr. Badariah binti Sahamid (“Dr. Badariah”) as a Judicial Commissioner of the High Court of Malaya. Although highly regarded in academia, she had never obtained a practicing certificate, raising doubts about her eligibility under Article 123 FC. On the other hand, the Malaysian government (“defendant”) defended the appointment, arguing for a broader interpretation of the constitutional provision. With the judiciary’s composition at stake, the case was referred to the Federal Court for a decisive ruling on the meaning of “advocate” in the highest law of the land.
Facts
On 17 June 1978, Dr. Badariah graduated with a first-class honors degree in law from the University of Malaya. This qualifies her as a “qualified person” under the Legal Profession Act 1976 (“LPA”). Under Section 2 of the said Act, a person who has passed the University of Malaya’s final examination is considered a “qualified person”. Subsequently, she obtained her Master of Laws (LLM) from the University of London. She was admitted as an advocate and solicitor of the High Court of Malaya on 26 September 1987, after completing her pupilage and fulfilling the requirements of the Act. However, she never obtained a practicing certificate to authorize her to practice law. Instead, she began her career at the Faculty of Law, University of Malaya, as a lecturer on 14 January 1980. Later, she became an Associate Professor on 10 April 1992 and a Professor on 31 December 2006. She held this position until her appointment as a judicial commissioner.
Legal Issues & Arguments
The legal issue before the court is whether the appointment of Dr. Badariah was valid. Specifically, this requires the interpretation of Articles 122AB, 122B and 123 of FC regarding the appointment of judges. Article 122AB pertains to the procedures for the Yang di-Pertuan Agong to appoint judicial commissioners, while Article 122B concerns the appointment of judges to the superior courts. These two articles were not in dispute. However, Article 123 of FC was the provision which was in dispute that requires the court’s determination. This Article states that:
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—
- he is a citizen; and
- 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 and sometimes another.
This means that a person who has served as an advocate for several years and as a member of the judicial service for several years may also qualify, provided that the total term of service amounts to at least 10 years.
Thus, the critical question for the court to determine is whether Dr. Badariah meets the qualifications for appointment as a High Court judge. Specifically, the court must ascertain whether a law lecturer falls within the definition of an “advocate” under the FC.
Court’s Decision and Reasonings
The Federal Court, in a 3-to-2 majority decision, ruled in favor of the Government of Malaysia.
The dissenting judgments were delivered by Abdul Hamid CJ and Zulkefli FCJ.
Abdul Hamid CJ
The court made comparison between the position in Malaysia and the position in Singapore as well as in India. In Singapore, Article 96 of the Singapore Constitution allows 3 categories of person to be appointed as judges of Supreme Court. The 3 categories include:
- A qualified person within the definition of section 2 of the Singapore Legal Profession Act.
- A member of the Singapore Legal Service.
- A person who has been both (1) and (2).
A comparison was made between the Malaysia’s provision and the Singapore’s whereby the second category which requires the person to be a member of the judicial pr and legal service.
However, for the first category, the Singapore Constitution makes a reference to the Legal Profession Act. Under section 2 of the Legal Profession Act, a “qualified person” means any person who, before 1st May 1993, passed the final examination for a Bachelor of Laws degree from the University of Malaya in Singapore, the University of Singapore, or the National University of Singapore; is a barrister-at-law of England, d; or holds a degree or qualification declared by the Minister under section 7 before 1st January 1994 with a Board certificate. Alternatively, after 1st May 1993, a person who meets the qualifications and requirements prescribed by the Minister under subsection (2); or is approved by the Board under section 7 can be considered as a “qualified person”.
Under Article 124(3) of the Indian Constitution, a person is qualified to be a judge of the Supreme Court if he has either been a judge of a High Court or of two or more such courts in succession for at least five years, been an advocate of a High Court or of two or more such courts in succession for at least ten years, or are, in the opinion of the President, a distinguished jurist. Distinguishing from the Indian position, there is no provision which allows a “distinguished jurist” or a law lecturer to be appointed as a judge.
In Malaysia, the purpose of the provision is to allow a person to gain at least ten years experiences before being appointed as a judge. Subsequently, reference was made to the Interpretation Act 1948 and 1967 and the LPA to define the term “advocate”. An “advocate” is defined as a practicing advocate and solicitor who possesses have a practicing certificate. Thus, since Dr. Badariah is not a practicing advocate or does not possess a practicing certificate, she shall not be qualified for the said appointment.
A reference was then made to the case of All Malayan Estates Staff Union v Rajasegaran & Ors[1] to support his view. In this case, the Federal Court held that the respondent’s appointment as Chairman of the Industrial Court was invalid because, although he had been admitted as an advocate and solicitor for over eight years, he had only practiced for four years and nine months, falling short of the seven-year practice requirement under Section 23A(1) of the Industrial Relations Act 1967. The court interpreted “advocate and solicitor” to mean a practicing advocate with a valid practicing certificate, emphasizing that the seven-year requirement refers to actual practice or experience. While Section 23(1) of the Industrial Relations Act 1967 ties the definition to the LPA, Article 123 of the Constitution does not, providing stronger grounds to interpret “advocate” as a practicing advocate. Thus, according to Abdul Hamid CJ, an “advocate” under the FC requires to be a practicing advocate which disqualifies a law lecturer. This indicates that a literal approach was adopted in interpreting the term “advocate.” Under this interpretation, an “advocate” does not include a law lecturer, as this role is not explicitly mentioned in the relevant provisions.
Zulkefli FCJ
To qualify as an “advocate of those courts” under Article 123, a person must be in actual or active practice, in addition to being admitted and enrolled as an advocate and solicitor under the LPA. This requires obtaining a practicing certificate, as only advocates and solicitors with such certificates have the exclusive right to appear and plead in courts, while those without are deemed “unauthorized persons” under the LPA. Adopting a purposive approach, the term “advocate” in Article 123 must be interpreted as someone who has been in practice, as the Constitution is a living document deserving a fair, liberal, and progressive construction. The phrase “has been” and the 10-year requirement in Article 123 further emphasize the necessity of active practice, as experience is gained through practice, not merely admission and enrollment. Since Dr. Badariah lacked the requisite 10 years of active practice, her appointment as a judicial commissioner is null and void.
Nik Hashim FCJ
A broad and liberal interpretation should be applied to the phrase “advocate of those courts” under Article 123, in line with the well-established principle that constitutions should be construed with less rigidity and more generosity than ordinary statutes. This approach is supported by judicial precedents, such as Minister of Home Affairs v Fisher [1980] AC 319, which emphasize a flexible and expansive reading of constitutional provisions.
Interpreting the term “advocate of those courts” under Article 123 to require a practicing advocate with a valid practicing certificate would amount to reading words not present in the provision, which is incorrect. The term “advocate” in the FC aligns with the definition under the Interpretation Acts 1948 and 1967 and the LPA, meaning an advocate and solicitor admitted and enrolled under the Act, without requiring a practicing certificate. Thus, Dr. Badariah, though lacking a practicing certificate, qualifies as an advocate and solicitor as she was admitted and enrolled, and her role as a law lecturer at the University of Malaya can be considered a form of legal practice in a broader sense. This is because she did gain sufficient legal knowledge that qualify her to become a judge. The rigid interpretation proposed by the Bar Council is inconsistent with a generous constitutional approach, and the Federal Court case of All Malayan case is distinguishable as it involved statutory, not constitutional, interpretation. Therefore, Dr. Badariah’s appointment as a Judicial Commissioner is valid, as she met the minimum qualification of being an advocate and solicitor for over 10 years, regardless of her lack of a practicing certificate.
Hashim Yusuff FCJ
The definition of “advocate and solicitor” under Section 3 of the LPA requires only admission and enrollment, not a practicing certificate, as confirmed in Samantha Murthi v AttorneyGeneral[2]. However, in All Malayan case, the Federal Court held that an advocate and solicitor must have been practicing for the preceding seven years to qualify as Chairman of the Industrial Court under the Industrial Relations Act 1967. In interpreting Article 123, which governs judicial appointments, the court emphasized that the term “advocate” does not explicitly require active practice, unlike other provisions that specify “practicing advocate” or “legal practitioner.” A broad and liberal interpretation of Article 123, consistent with constitutional principles, supports that Dr. Badariah, despite lacking a practicing certificate, qualifies as an advocate due to her admission, enrollment, and extensive legal experience as a law lecturer. Thus, her appointment as a judicial commissioner is valid, as she met the 10-year requirement under Article 123, and the court answers the referred questions accordingly.
Azmel FCJ
In interpreting the term “advocate” under Article 123 of FC, the court must adhere to principles of constitutional interpretation, which favor a broad and generous approach rather than a narrow or rigid one. While the Federal Court the All Malayan case required a practicing certificate for appointment under the Industrial Relations Act 1967. However, the case is inapplicable here, as it involved statutory, not constitutional, interpretation. The court finds that Dr. Badariah, despite lacking a practicing certificate, qualifies as an advocate under Article 123 due to her admission, enrollment, and extensive legal experience as a law lecturer. The appointment of judges like Dr. Visu Sinnadurai as a High Court judge without a practicing certificate, further support this interpretation. The Bar Council’s objection to Dr. Badariah’s appointment, while condoning similar appointments in the past, reflects an unfair double standard. Therefore, the court holds that Dr. Badariah’s appointment as a judicial commissioner is valid, and the plaintiff’s claim is dismissed with costs.
Critical Analysis & Conclusion
This case highlights the tension between literal and purposive approaches to constitutional interpretation. The majority judgment adopted a broad and liberal interpretation of Article 123, emphasizing that the Constitution should not be construed rigidly. They argued that the term “advocate” does not necessarily require active practice or a practicing certificate, as long as the individual has been admitted and enrolled as an advocate and solicitor. This approach aligns with the principle that constitutions are living documents that should be interpreted generously to adapt to changing societal needs.
However, the dissenting judges, favored a more literal interpretation. They argued that the term “advocate” must imply active practice, as the purpose of the 10-year requirement is to ensure that judges have substantial legal experience. This interpretation is grounded in the belief that judicial appointments should be reserved for those who have actively engaged in legal practice, as this experience is crucial for the effective administration of justice.
Besides, this case raises important questions about the nature of legal experience required for judicial appointments. The majority opinion suggests that academic experience, such as teaching law, can be considered a form of legal practice, especially when it involves training future advocates and solicitors. This view recognizes the value of academic contributions to the legal profession and the judiciary. This view shall always be supported. Unlike statutory provisions, the constitutional provisions should be interpreted broadly and generously, rather than narrowly or pedantically. This approach allows the Constitution to evolve and adapt to changing circumstances, ensuring that it remains relevant and effective. The similar principle was upheld in subsequent cases such as Shamim Reza bin Abdul Samad v PP[3], whereby the court held that the right to a fair trial needs to be interpreted broadly with less rigidity. This means that the constitutional rights guaranteed under the FC should be read broadly to ensure that all citizens enjoy the guaranteed rights accordingly.
Significantly, the decision provides important guidance on the interpretation of Article 123 of the FC, clarifying that the term “advocate” does not necessarily require active practice or a practicing certificate. This clarification will inform future judicial appointments and ensure that the qualifications for judicial office are applied consistently and fairly. By recognizing that legal academics and other non-practicing legal professionals may qualify for judicial appointments, the decision broadens the pool of potential candidates for the judiciary. This could lead to a more diverse and inclusive judiciary, with judges bringing a wider range of experiences and perspectives to the bench.
In conclusion, the decision has significant implications for the appointment of judges in Malaysia. By upholding Dr. Badariah’s appointment, the court has opened the door for individuals with extensive academic or non-practicing legal experience to be considered for judicial office. This strikes a balance between respecting the traditional emphasis on practical legal experience and embracing the evolving role of legal academics in the legal profession. By acknowledging the value of academic contributions, the decision reflects a forward-looking approach to judicial appointments, while still emphasizing the importance of legal expertise and experience.
Reference (s):
Statutes
- Constitution of India
- Constitution of the Republic of Singapore
- Federal Constitution, Malaysia
- Industrial Relations Act 1967, Malaysia
- Interpretation Act 1948 and 1967, Malaysia
- Legal Profession Act 1966, Singapore
- Legal Profession Act 1976, Malaysia
Case laws
- All Malayan Estates Staff Union v Rajasegaran & Ors (2006) 6 MLJ 97
- Samantha Murthi v Attorney-General (1982) 2 MLJ 126
- Shamim Reza bin Abdul Samad v PP (2011) 1 MLJ 471
[1] (2006) 6 MLJ 97.
[2] (1982) 2 MLJ 126.
[3] (2011) 1 MLJ 471.
