Judges have a moral and constitutional duty to dissent


  • Nation
  • Sunday, 20 Sep 2015

PUTRAJAYA: A judge must have the courage to dissent if he does not agree with the majority decision, said retired Court of Appeal judge Datuk Mohd Hishamudin Yunus.

Asked whether it was good to have dissenting judgments, he said that he has dissented in quite a number of cases.

“It is not a question of whether they are good or bad. It is the moral and constitutional duty of a judge to dissent if he strongly feels that he does not agree with the majority decision.

“He has no option. It would be dishonest of him if he were to just go along with the majority decision, in spite of his conviction, just for the sake of convenience or expediency,” said Mohd Hishamudin, who did both his LLM and LLM at the renowned London School of Economics.

He said a judge must have courage to dissent when it is expected of him to do so.

“He owes it to his oath of office and to the litigants before him to dissent; particularly, the litigant in whose favour his dissenting judgment would have been, had he taken the initiative to deliver his dissenting judgment,” said Mohd Hishamudin.

He added that the existence of dissenting judgments was one of the hallmarks of an independent judiciary.

Mohd Hishamudin, who turned 66 on Sept 9, said one of his goals was to contribute to the development of Malaysian law to the best of his ability.

“Another objective is to dispense justice without fear or favour. I have tried my very best in serving the judiciary and the country, and, I think, I am quite satisfied with what I have achieved so far in my almost 23 years on the bench.

“But of course, it is better that other people do the judging,” he quipped.

Asked on the most important thing in writing a judgment, he said, he would always be conscious that a judgment is also a source of knowledge and education for the public.

Mohd Hishamudin, who was born in Johol, Negeri Sembilan, and grew up in Gemas, said he is passionate about constitutional law.

A consultant now with a legal firm, he intends to venture into “the world of arbitration.”

The senior judge has 42 years of experience in the Judicial and Legal and Services. He is married to Datin Siti Patimah Ahmad and has four children.

He started his career in law in August 1973 when he was appointed as a magistrate at Bukit Mahkamah in Kuala Lumpur.

Shortly after, he was entrusted with the responsibility of President of the Sessions Court in Alor Star.

He worked as a deputy registrar, a deputy public prosecutor, a legal advisor, an assistant draftsman, and a federal counsel.

On May 4, 1984, he was admitted as an Advocate and Solicitor in the High Court of Malaya.

In October 1987, he was appointed deputy head of the Advisory and International Law Division at the Attorney General’s Chambers.

Working in Selangor later, he was appointed as the Syariah Appeal Court judge and the Fatwa Council’s member.

He was later appointed Chief Registrar of the then Supreme Court, Kuala Lumpur.

In October 1992,  he was elevated to Judicial Commissioner at the High Court Kuala Lumpur and became a judge two years later.

He handled criminal, civil and commercials cases when he was a judicial commissioner and a judge in different High Courts for years.

In May 2008, he was chosen by International Bar Association Human Rights Institute for the fact finding mission to South Africa on the Independence of the Judiciary.

In April 2009 he was elevated to the Court of Appeal and served in the second highest court until his retirement.

Related story:

Judicial crisis was a nightmare, says retired judge

'One must consider the spirit of the law'

Give the A-G security of tenure, says retired judge

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