1.

Badan Peguam Malaysia v Kerajaan Malaysia

Facts: the appointment of Dr Badariah, a UM law lecturer, as a judge. A previous case regarding the
appointment of a judge in the industrial court affirmed the legal requirement of "active legal practice"
in order to be a judge in the industrial court, in which in Dr Badariah's case, she had none. Dr
Badariah 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. The issue in this case is that whether the words ‘advocates of those courts’ appearing in art
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 art 122AB of the Federal Constitution
(Para 299, Para 2/H)

LAW INVOLVED
Article 122AB: 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;
Article 122B: the appointment of judges of Federal Court, the Court of Appeal and the High Courts.
Article 123 of Federal Constitution. A person is qualified for appointment under art 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)
(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.

Judge’s Decision:
Abdul Hamid Mohamad Chief Justice;
i. Under art 123(b) there are two categories of persons who are qualified to be appointed as
a judge:
- (1) a person who has been an advocate and solicitor for ten years preceding his
appointment.
- (2) A person who has been a member of the legal and judicial service of the
Federation or of the legal service of a State or sometimes one and sometimes another
or ten years preceding the appointment.
ii. A member of the judicial and legal service can only mean a person who is employed as
and works as a member of the judicial and legal service. (Pg 303, Para 20/F)
- He does the work, the judicial or legal work and there is no such thing as a ‘non-
working’ member of the judicial and legal service.
iii. The other limb of art 123(b), ie ‘an advocate’ should be seen from the same perspective.
(Para 21/G)
- An ‘advocate’ must be a person who works as an advocate. He too must have the
experience working as an advocate before he qualifies to be appointed a judge.
- This is further strengthened by the requirement that an advocate or a member of the
judicial and legal service must have been so for ten years. (Pg 308, Para A)
 - 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.

iv. Part I of the Interpretation Acts 1948 and 1967, in s 3, ‘advocate’ is: (Pg 305, Para 31)
‘advocate’ means a person entitled to practise as an advocate or as an advocate and
solicitor under the law in force in any part of Malaysia.
- Who is ‘entitled to practise as an advocate and solicitor under the law in force in any
part of Malaysia’?
o Under the Legal Profession Act 1976, “no person shall practise as an
advocate and solicitor or do any act as an advocate and solicitor unless his
name is on the Roll and he has a valid practising certificate authorizing him
to do the act’ — s 36(1).
- Hence, an advocate must necessarily mean a person whose name is on the Roll and
has a valid practising certificate.
v. All Malayan Estates Staff Union v Rajasegaran & Ors. (2006) 6 MLJ 97 (pg 307, Para B)
- A person who is entitled to practise as an advocate and solicitor under the Legal
Profession Act 1976 is one with a practising certificate.
- Accordingly, the term ‘advocate and solicitor’ in s 23A(1) must be construed as a
reference to an advocate and solicitor who has been in practice under the Legal
Profession Act 1976

Nik Hashim FCJ

i. A broad and liberal interpretation should be given to the phrase ‘advocate of those courts’
under art 123 of the Federal Constitution (‘the FC’). (Pg 310, Para 55)
- Aligned the principle that a constitution should be construed with less rigidity and
more generosity than other statutes
ii. The main criterion for the appointment as a JC or a judge of the High Court is that the
candidate must had been called to the Bar and admitted and enrolled as an advocate
and solicitor for 10 years.
iii. Must distinguish with All Malayan Estates Staff Union’s case
- Federal Court in Rajasegaran considered and construed the words ‘advocate and
solicitor’ in the context of the Industrial Relations Act 1967 an ordinary Act of
Parliament
- Whereas in our case, it is an interpretation regarding an Article in the Federal
Constitution.
- Dr Badariah could be considered as practising in a wider sense as she was teaching
law to her students in the University of Malaya before her appointment as a JC

Hashim Yusuff FCJ

i. According to the case of Merdeka University Berhad v Government of Malaysia [1981] 2
MLJ 356
- a Constitution should be considered with less rigidity and more generosity than other
statutes
- only true guide and the only course which can produce stability in constitutional law
is to read the language of the Constitution itself, no doubt generously and not
pedantically, but as a who (Pg 316, Para 84)
ii. The words ‘a practising’ before the word ‘advocate’ is to deprive the respondent of
equality before law, a fundamental liberty under our Constitution (Pg 318, Para 86)
2. Sivarasa Rasiah v Badan Peguam Malaysia & Anor
The appellant, an advocate and solicitor and a member of Parliament, wished to serve as an
elected member on the Bar Council, the governing body of the Malaysian Bar. However, s
46A(1) of the Legal Profession Act 1976 (‘the Act’) disqualified amongst others a member of
Parliament from being a member of the Bar Council or a Bar Committee. The appellant
challenged the constitutionality of s 46A(1) of the Act on the grounds that the section violated
his rights of equality and equal protection under Article 8.
Issue:

Judge’s Decision:
i. Fundament liberties guaranteed under Part II, must be generously interpreted and that
a prismatic approach to interpretation must be adopted (Pg 339, Para 3)

ii. First approach: Provisos or restrictions that limit or derogate from a guaranteed right
must be read restrictively. (Pg 340, Para 5)
- Example Art 10(2)(c); Parliament may by law impose ... (c) on the right conferred by
paragraph (c) of Clause (1), such restrictions as it deems necessary
- Although the article says ‘restrictions’, the word ‘reasonable’ should be read into the
provision to qualify the width of the proviso.
- The question for determination is whether the restriction that the particular statute
imposes is reasonably necessary and expedient for one or more of the purposes
specified in that article.
iii. Second approach: The test that should be applied in determining whether a
constitutionally guaranteed right has been violated. (Pg 340, Para 6)
- The question that needs to be asked is: Whether it directly affects the fundamental
rights or its inevitable effect or consequence on the fundamental rights is such that it
makes their exercise ineffective or illusory (Adopted from the case of Dewan
Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor)
iv. Third approach: The fundamental rights guaranteed under Part II is part of the basic
structure of the Constitution and that Parliament cannot enact laws (including Acts
amending the Constitution) that violate the basic structure.
3. Mamat Bin Daud v Government of Malaysia
Facts: Appellant argued that Section 298A of the Penal Code was invalid since it is a law that
ought to be passed by the State Legislative Assemblies since according to Article 11(4) and
List II Ninth Schedule. However, the law was passed by the parliament. The respondent
however, argued that the section is a valid law passed by Parliament since it is the law
regarding public order, internal security and criminal law.
Issue: Which should make the law. Parliament or State Legislative Assembly?

Judge’s Decision
i. The object, purpose and design of the impugned section must be investigated for the
purpose of obtaining the true character and substance of the legislation and the class
subject matter of legislation to which it really belongs (Page 123, Para B, Column 2)
ii. The impugned section has nothing to do with ‘public order’ (Page 125, Para H)
- They come under the classification of either the general subject of Islamic law or
specific subject of creation and punishments of offences by person professing the
religion of Islam.
iii. (Page 125, Para B, Sec column) The fact that the Administration of Muslim Law
Enactment of the states has yet to provide specific punishment against such act, does
not confer the power to the Parliament with the power to legislate over such religious
matters.
4. Malaysian Vermizcelli Manufacturers (Melaka) Sdn Bhd v Pendakwa Raya
The appellant was charged under Regulation 8(1)(b) of the Environmetal Quality (Sewage
and Industrial Effluents) Regulations due to discharging white milky effluent into inland
waters. The Regulations under which the appellant was charged, was made by the Minister
charged with the responsibility for environmental protection, in the exercise of his powers
under Section 51(1) of the Environmental Quality Act 1974 (EQA). (Pg 3, Para 7)

Issue: Whether Regulation 8(1)(b) of the Environmetal Quality (Sewage and Industrial
Effluents) Regulations is ultra vires and void?

Appellant (Pg 4, Para 13) (Relied on Ketua Pengarah Jabatan Alam Sekitar & Anor v
Kajing Tubik)
- Minister had the power to make regulations under section 51 of the EQA, subject to
the qualification that the regulations must only be with respect to matters enumerated
in the Federal list.
- Section 51 of the EQA could only empower the making of subsidiary legislation on
matters concerning which the Federal government had the legislative competence
- the Regulations affected inland waters (which was within the legislative competence
of the State), the Regulations were ultra vires the powers of the Minister and were not
applicable to the State of Malacca

Respondent:
i. section 25(1) of the EQA does not concern merely with inland waterways
- emission, discharge or deposit of any environmentally hazardous substances,
pollutants or wastes into any inland waters is also included in the Section. (Page 6,
Para 18)
- And reading this together with the Federal List (8) validate the Regulation in the
application to the State of Malacca.
ii. Urged to follow the decision in the case of PP v Ta Shin Enterprise Sdn Bhd.

Judge’s Decision:
i. This matter is within the jurisdiction of the High Court (Pg 6, Para 21)
- The jurisdiction to determine the validity or otherwise of a law made by Parliament or
a state legislature is within the Federal Court (Article 128)
- However, in the current issue, the issue is not to declare the validity of EQA or the
Regulation.
- The question in court is of the interpretation of the Federal Constitution in relation to
the applicability of the EQA and the Regulations to the State of Malacca. (Pg 7, Para
22)
ii. A broad and liberal construction must be given. (First)
- However, the court is not entitled to stretch or pervert the language of the enactment
in the interest of any legal or constitutional theory or to supply omission or correction
supposed errors.
- The exception for this general rule is that: Where the language of the constitution is
open to two constructions, a court should adopt the construction which will ensure the
smooth and harmonious working of the constitution and eschew the other which will
 lead to absurdity or give rise to practical inconvenience or make well established
provisions of law nugatory. (Pg 9, Para 22)
iii. (Second) Presumption of constitutionality operating in favour of the impugned
legislation (Pg 7, Para 23)
- Parliament is presumed not to encroach upon matters that are within the constitutional
authority of a State within the Federation.
- When determining the scope of Federal and State legislation upon a particular
subject, ensure that the enactments of each legislative power are read so as to avoid
inconsistency or repugnancy between them.
iv. (Third) Every entry in each legislative List must be given its widest amplitude and
that its scope cannot be curtailed saved to the extent necessary to give effect to other
legislative entries (Pg 7, Para 24)
v. Fourthly, the words "with respect to" in Article 74 of the Federal Constitution must
not be forgotten in considering the extent of legislative powers conferred on the
Federation and the States, (Para 26, Page 8)
- The words "with respect to" had been interpreted to mean "on the subject of (Page 8,
Para 27)
vi. The question that needs to be asked is what is the subject matter under Section 25(1)
of EQA.
vii. The object and purpose of the Regulations are the prevention, abatement and control
of pollution as well as the enhancement of the environment (Page 10, PARA 34)
- Reasons can be found above (The interpretation of the whole Regulation)
- The Regulations are not legislation with respect to "water, that is to say water
(including water supplies, rivers and canal).
viii. The Regulations are in pith and substance a legislation with respect to "public health,
sanitation and the prevention of diseases," an entry in item 7 in the Concurrent List
(List III in the Ninth Schedule to the Federal Constitution)
5. Public Prosecutor v Dato Yap Peng
Facts: Dato Yap Peng was charged with criminal breach of trust in the Sessions Court. When
his case was mentioned again the Deputy Public Prosecutor tendered a certificate issued by
the Public Prosecutor under s. 418A of the Criminal Procedure Code requiring the case be
removed to the High Court.
ISSUE: When he was charged in the high court, he argued that the transfer of his case,
specifically, S 418A of CPC was against the provisions of Article 121(1) of the Federal
Constitution.

Judge’s Decision:
i. The term ‘judicial power’ in Article 121(1) must be identified the meaning. (Pg 313,
Para C, Column C)
- In this context, the court has the power to try a person for an offence committed by
him and to pass sentence against him if he is found guilty.
- The ‘judicial power’ includes … (mentioned in Pg 313, Para E-H, Column 2)
ii. Court then identify the meaning of Section 418A of CPC (Page 314, First Para, 1 st
Column)
- (1st) PP may require any criminal case triable by the Subordinate Court to be removed
to the HC.
- ‘any case triable by a criminal court subordinate to HC…’ means any criminal case
that falls within the jurisdiction of the court. (Pg 313, Para E-G)
- (2nd) “before which that case if pending’ – a criminal case that is pending in a
Subordinate Court until the Court find his guilty and sentence him or the court find
him not guilty and acquits him.
- (3rd) what stage of the proceeding the case is said to be pending? – After the charge is
read and explained to the accused, then the Court begins to exercise its judicial power
(Pg 313, Para F-G, Column 2)
iii. Deputy PP relied in the case of Savrimuthu v Public Prosecutor. (Pg 315, Para F-G,
Column 2)
- However, in this case, the power was adopted from Section 41A, which is very
different with Section 418A.
- Other than that, the transmission of the case from the Session Court to HC was proper
since the trial had not begun in the Session Court, hence no evidence had begun to be
adduced.
- Hence, Section 418A is unconstitutional
6. Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors
Facts: The respondents are three natives from the longhouses in the area where the Bakun
hydroelectric project is constructed. This project will deprive them from their livelihood as it
involves the inundiation of a very large tract of land, creation of reservoir and the whole
affected area belongs to the state of Sarawak. All those affected by the project will be
restettled by the State Government; their ancestral and customary rights will be extinguished
in accordance with the Land Code of Sarawak.
Issue: Whether EQA is applicable in the ‘environment’ matter?

Judge’s Decision
i. Parliament, when it passed the EQA, did not intend, and could not have intended, to
regulate so much of the environment as falls within the legislative jurisdiction of
Sarawak (Pg 274, Para G)
- The “environment” upon which the project will have an impact and not the
production, supply and distribution of power.
- Since the “environment” in question, by reason of Item 2(a) of List II and Item 13 of
List IIIA, lies wholly within the legislative and constitutional province of the State of
Sarawak, that State has exclusive authority to regulate, by legislation,