Judicial crisis was a nightmare, says retired judge

  • Nation
  • Sunday, 20 Sep 2015

PUTRAJAYA: Retired Court of Appeal judge Justice Datuk Mohd Hishamudin Yunus (pix) called the 1988 attack on the judiciary a judicial nightmare and a national tragedy.

“The late Justice Wan Sulaiman and his panel of Supreme Court Judges must forever be remembered and commended for their courage and uprightness in upholding the rule of law and the independence of the judiciary; for which they paid a high price.”

He said Lord President Tun Salleh Abas and the five Supreme Court judges were innocent of the charges.

In 1988, Salleh, was brought before a tribunal for misconduct, and the five Supreme Court judges that granted him an interim order against the tribunal, were either sacked or suspended. 

Asked whether the judiciary had recovered from that episode, he said: “Yes, by now, after some 27 years since that dark episode, the Judiciary has probably recovered, but still to a very limited extent. The negative public perception against the Judiciary is still there. 

Indeed, as the late Tun Suffian (a former Lord President) had said many years ago in his speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our judiciary would take a whole generation to recover from the assault. Now more than 12 years have lapsed. I doubt if the judiciary would recover in a generation from today’.”

On whether judges gave decisions based on what they thought the Government wanted, he replied: “I do not think it is fair for me to speculate what goes in the mind of judges.”

“But allow me to say this: a judge is required by his oath of office to dispense justice in accordance with the law and the Constitution, and without fear or favour. Judgeship is a public trust. 

“A judge must never betray that trust; no matter what. He must constantly be guided by the Latin maxim fiat justitia ruat caelum (let justice be done though the heavens fall). He must always be mindful that his judgment is subject to public scrutiny; and today we are in the era of the Internet, and in the era of a well-informed and critical society.

“A person must not accept the appointment as a Judge if he or she is timid and could not live up to his oath of office.”

As for whether civil court judges have the jurisdiction to try disputes having Syariah elements, he said that if the issue involved the interpretation of the Federal Constitution or involved the civil law,  the civil court judge “has the jurisdiction and, indeed, must hear the case”.

“It is outside the jurisdiction of the Syariah Court to interpret the Constitution or to determine the interpretation of a non-Syariah legislation, or to determine a non-Syariah legal issue.”

How should a judge deal with such cases? Abdicate responsibility to the Syariah courts? Hear them with the assistance of Syariah experts? 

“Of course, the civil court judge must hear the case. It would be wrong for the judge to pass the matter to the Syariah Court.
“If the need arises, he can hear the case with the assistance of a Syariah expert. But the Syariah expert has to come by way of an expert witness.

“This is provided for in Order 40 of the Rules of Court 2012 and by section 45 of the Evidence Act 1950.”

Who would you decide is the expert  if you had to choose between the Perlis mufti or the Perak mufti?

“ This is a hypothetical question.”

Mohd Hishamudin did not want to be speculate on whether there are judges who are influenced by their political or religious leanings.

“All I can say is that a judge must not decide a case in accordance with his religious or political leanings.

“That would not be an honest decision. That would not be a lawful decision.

“He must decline to hear a case if he thinks that his political and religious leanings, rather than the law, is going to influence him in making a decision.”

Related story:

'One must consider the spirit of the law'

Judges have a moral and constitutional duty to dissent

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

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