A day of majority, by the bench

Yesterday saw an unusual day at the courts. Two ‘high profile’ cases, which drew the attention of many, especially those who regard themselves as “like minded” people, as both cases involve the issue of integrity of the Judiciary, human rights and the outcome of the judgment, can be ‘capitalised’ to portray how the majority Malay-Muslim care little for “infringements” against the minorities of the populi.

First it was the case of Bar Council’s objection against the appointment of former Universiti Malaya Dean of Law Faculty Dr. Badariah Sahamid as the Judicial Commissioner. The Federal Court ruled that her law knowledge and experience is adequate to qualify her for the Judiciary post and one Federal Court Judge argued on this point from the “wider sense”.

The 3-2 majority in favour of Dr. Badariah’s 1 March appointment was achieved even though the newly appointed Chief Justice Dato’ Abdul Hamid Mohamad gave a dissenting judgment against the majority of the panel of this Federal Court. The judgment over turned the current ruling that a law practitioner needs a minimum of 10 years before one could be considered into a bench position. 

The Star has the stories:

Badariah’s appointment declared valid

By M. MAGESWARI and PAUL CHOO

PUTRAJAYA: The Federal Court ruled in a 3-2-majority judgment that former law lecturer Dr Badariah Sahamid is qualified to be a judicial commissioner (JC).

The rather unusual judgment saw the current Chief Justice Abdul Hamid Mohamad and another Federal Court judge dissenting strongly on the issue.

The three judges who declared Dr Badariah’s appointment valid were Federal Court judges Justices Nik Hashim Nik Ab. Rahman, Hashim Yusoff and Azmel Maamor.

The trio, therefore, dismissed the application by the Malaysian Bar, which named the Government as the sole defendant, with costs yesterday.

Justice Nik Hashim ruled that Dr Badariah could be considered practising “in a wider sense” as she was teaching law at Universiti Malaya before her appointment as a JC.

“In my view, the main criterion for the appointment as a JC or a Judge of the High Court is that the candidate must have been called to the Bar and admitted and enrolled as an advocate and solicitor for 10 years and it does not matter if the candidate, like Dr Badariah here, did not possess a practising certificate preceding the appointment,” he said.

In a separate written judgment, Justice Hashim said the definition of “advocate” in Section 3 of the Interpretation Acts 1948 & 1967 did not appear to apply to the meaning of the word “advocate” in the Federal Constitution.

“Similarly in Article 123 of the Federal Constitution, if Parliament had intended that only legally qualified appointees who had actually practised for 10 years to qualify for appointment as a High Court judge or JC, the draftsman would have used the words ‘a practising advocate’ or ‘legal practitioner’ instead of the word ‘advocate’ in Article 123 of the Constitution,” he said.

Justice Azmel, who described Dr Badariah’s legal qualification as impeccable, echoed the sentiment.

In his judgment, Chief Justice Abdul Hamid ruled the appointment invalid as he considered an advocate as a person who works as an advocate or who practises law.

“By looking at the provision of the Constitution itself, in my view, the more reasonable meaning that should be given to the word ‘advocate’ is a practising advocate,” the top judge said.

He said this was further strengthened by the requirement that an advocate or a member of the judicial and legal service must have been so for 10 years.

“That requirement can only mean to enable the advocate or the officer to gain experience at the Bar or in the service before he is appointed. Otherwise, the requirement serves no purpose whatsoever,” he said.

He said the time may have come for other categories of persons such as academicians to be included as persons qualified to be appointed judges, especially in such areas of law as intellectual property, conventional and Islamic finance and banking.

“But that is a matter of policy for the Government. It is not right for the court to rewrite the Constitution under the pretext of interpreting it to sneak in someone under the two existing categories when he or she does not really belong to either of them,” he said.

He said Dr Badariah, not having practised law at all since her admission to the Bar, does not qualify to be appointed a JC.

“I hold that even though the appointment of Dr Badariah is invalid, all her judgments and orders handed down by her as a JC are not a nullity by reason of defect in her appointment.

“As it is a matter of public interest, I would order that no order for costs be made in this court,” he added.

Federal Court judge Zulkefli Ahmad Makinudin, who agreed with the top judge, said Dr Badariah’s appointment as JC with effect from March 1 was null and void.

“In my view, an advocate can only gain experience by being in practice.

“It is to be noted that under the same Article 123 of the Federal Constitution even a member of the Judicial and Legal Service of the Federation must have the requisite number of years of working experience to be eligible for appointment as a judge or a JC,” he added.

Attorney-General Tan Sri Abdul Gani Patail said he did not think anything strange about the decision.

“It is a majority decision. It shows total independence,” he added.

This judgment certainly anull the ruling and thus recognize Dr. Badariah’s long academic exposure, which include thesis, papers presented and books published, throughout after being called to the Bar twenty years ago. She  was also member of the qualifying board.

The Star has more:

Dr Badariah – from dean to JC

DR BADARIAH SAHAMID, 52, is former dean of the law faculty at Universiti Malaya (UM) where she also lectured and was associate professor.

Her field of expertise is banking law, jurisprudence and legal theory.

She graduated from UM with a law degree in 1978, and received her Masters from the University of London a year later.

In 1987, she was called to the Bar and was a member of the professional qualifying board.

Dr Badariah received her law doctorate from UM in 2001 and was appointed judicial commissioner on March 1, 2007.

Judicial commissioners are appointed for a term of two years and have the power to perform the same functions of a High Court judge.

The Yang di-Pertuan Agong appoints JCs on the advice of the Prime Minister, who consults the Chief Judge on the appointments.

 

Then there was the other ‘high profile’ case. The Federal Court again gave a 2-1 majority decision for the divorce and child custody “Subashini” case is for the civil court to decide and the husband’s conversion into Islam does not warrant an automatic annulment or dissolution to the union, which was bound by the Marriage and Divorce Act.

Judges: Go back to civil court

By M. MAGESWARI

PUTRAJAYA: The Federal Court ruled that the dispute between secretary R. Subashini and her Muslim-convert husband T. Saravanan over the dissolution of their marriage and child custody will continue to be under the jurisdiction of the civil court.

In the 2-1-majority landmark decision yesterday, the three judges agreed on this point with the third judge dissenting on all other issues raised.

Federal Court judge Justice Nik Hashim Nik Ab Rahman said a non-Muslim’s marriage did not automatically dissolved upon one of the parties’ conversion to Islam.

“Thus, by contracting the civil marriage, the husband and wife are bound by the 1976 Act (Law Reform (Marriage and Divorce) Act) marriage in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam,” he said.

In his judgment, Justice Nik Hashim said by embracing Islam, Saravanan and his eldest son were subject to Muslim personal and religious laws.

“It is not an abuse of process, if he, being a Muslim, seeks remedies in the Syariah High Court as it is his right to do so,” he said.

Justice Nik Hashim, who sat together with Federal Court judges Justices Abdul Aziz Mohamad and Azmel Maamor, said this:

“To my mind, the dissolution order of the civil marriage by the Syariah High Court by virtue of conversion would have no legal effect in the (civil) High Court other than as evidence of the fact of the dissolution of the marriage under the Islamic law in accordance with Hukum Syarak.

“Thus, the non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a petition for divorce by the unconverted spouse under Section 51(1) of the 1976 Act.”

He said there was no impediment for the converted husband to appear in the divorce proceedings in the civil High Court.

“The wife, being a non-Muslim, has no locus in the syariah court,” he said.

Both judges also agreed that although the syariah courts are state courts, they are not lower in status than the civil courts.

Justices Nik Hashim and Azmel, who threw out Subashini’s appeal, said the divorce petition filed at the High Court by Subashini was premature and invalid as it was filed two months and 18 days after the husband’s conversion to Islam.

The judge ruled that the petition should have been filed after three months.

Justice Nik Hashim said it was his view that Subashini was entitled to proceed with her application for custody rights of her children but it would be most appropriate if she filed her petition for divorce afresh.

He said the conversion of the elder son to Islam by the husband, albeit under the Selangor Enactment, did not violate the Federal Constitution.

He added that either spouse had the right to convert a child of the marriage to Islam.

“The word ‘parent’ in Article 12(4) of the Constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent,” Justice Nik Hashim said.

Justice Azmel concurred with him on those points.

In September last year, the Kuala Lumpur High Court dismissed Subashini’s application to stop Saravanan from resolving their marital problems in the syariah court.

On March 13, Court of Appeal had, in a 2-1 majority judgment, said Subashini had recourse to seek in the syariah court for divorce and child custody.

Subashini, 29, and Saravanan, 32, have yet to finalise their divorce.

They have two children – Dharvin Joshua, four, and two-year-old Sharvin.

Justice Abdul Aziz’s dissenting judgment is 112 pages.

One of the Judges who sat in this proceeding gave a dissenting view that Muslim convert T. Saravanan’s attempt to obtain a custody order of his elder son from the syariah court amounts to an abuse of the court process, the Federal Court ruled in a dissenting judgment.

The interpretations of the judgment of both case are subjective, depends on the side of spectrum that one sits. The Bar Council will certainly welcome this decision, as some of its activists are of the opinion that the ‘Syariah court is “inferior” to the High court’. On the other hand, it is expected the Bar Council appalled with the judgment on the Dr. Badariah’s appointment as a Judicial Commissioner. Surely, the Federal Court Judges have interpreted the law and translated into the judgment in both cases.

So it was a day of landmark decision for the Malaysian Judiciary and the decision by the majority, prevails.

Published in: on December 28, 2007 at 09:55  Comments (2)