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The Federal Court ruled that only lawyers with at least seven years of active
practice could be considered for the position of Industrial Court chairman.
<p>The finding comes three years after the Bar Council and the Malaysian Trades
Union Congress raised objections to Rajasegaran’s appointment.</p>
<p>After Rajasegaran was appointed on Jan 15, 2004, the All Malayan Estates Staff
Union (Amesu) applied for a judicial review and leave to issue a writ to challenge
the legality of the appointment.</p>
<p>Judge Datuk S. Augustine Paul said although Rajasegaran’s appointment
was null and void, all awards made by him were valid on public policy grounds.</p>
<p>On Nov 2, 2004, the High Court in Kuala Lumpur disqualified him from holding
the post as Rajasegaran did not fulfil the seven-year active practice criterion.</p>
<p>The Bar Council revealed that Rajasegaran was in active practice for four years,
nine months and 22 days.</p>
<p>In declaring that Rajase- garan’s appointment was null and void, the then
Judicial Commissioner Datuk Wan Afrah Datuk Paduka Wan Ibrahim also ordered
the Public Service Department and the Government to revoke the appointment.</p>
<p>However, the Court of Appeal on March 24 last year overruled the High Court
decision.</p>
<p>It had said that one need only be called to the Malaysian Bar at least seven
years ago and need not practice to qualify as Industrial Court chairman.</p>
<p>Paul said the position taken by the appellate court would have resulted in
absurd consequences.</p>
<p>"The construction of Section 23 A (1) by the Court of Appeal can only
mean that the seven-year gap between the time a person is admitted and enrolled
as an advocate and solicitor and the time he is appointed as chairman of the
Industrial Court has no purpose," he said.</p>
<p>He said the rationale underlying the seven-year requirement preceding an appointment
was to ensure that a person had sufficient experience.</p>
<p>"It can now be discerned that the interpretation of Section 23 A(1) by
the Court of Appeal is ambiguous while the High Court had adopted the correct
approach."</p>
<p>Paul said Rajasegaran’s acts were recognised as valid on the grounds of
public policy and for the protection of those having official business to transact.</p>
<p>He said this rule of public policy was found in Section 41 (a) of the Interpretation
Act 1967 which provided that the proceedings of a body established by law shall
not be invalidated by any defect discovered later.</p>
<p>"Even though the appointment of the respondent (Rajasegaran) is invalid,
the awards handed down by him were done so in his capacity as chairman of the
Industrial Court and not a nullity on the grounds of public policy."</p>
<p>Rajasegaran, who was present in court with his wife Bindy, said he was happy
that the court decision did not jeopardise the 200 awards he had delivered.</p>
<p>"I am glad the awards are not affected or else parties will be unsure
of their positions."</p>
<p>Rajasegaran said he enjoyed his stint as chairman and now he had to accept
the verdict of the Federal Court.</p>
<p>Counsel for Amesu, V.K. Raj, said the court battle was not about personality
but to establish a principle of law.</p>
<p>"I acknowledge Rajase- garan has vast experience and knowledge in industrial
law but my client only questioned his qualification," he said.</p>
<p>Meanwhile, Human Resources Minister Datuk Seri Dr Fong Chan Onn said that Rajasegaran
was appointed at a time when there was a serious backlog of cases.</p>
<p>He lamented the fact that not many lawyers were willing to take a pay cut and
become Industrial Court chairmen.
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