THE judiciary should never attempt to act as if it were the executive when delivering judgment, said Chief Justice of Malaysia Richard Malanjum.

Judges’ independence was also paramount so that they should not be afraid to disagree with majority decisions or set aside the decisions of the higher courts, he added.

“Judicial independence includes freedom from internal and external influences. It must be understood by the government and the governed that superior judges in this country are not civil servants.

“They are appointed by the King and their salaries are from the consolidated fund. Therefore, judges should never be more Executive-minded than the Executive,” said Malanjum at the launch of “Celebrating Judicial Independence”, a book about former Court of Appeal judge Mohd Hishamudin Mohd Yunus, in Kuala Lumpur today.

Malanjum praised Hishamudin for standing firm when he was tested in a case involving the government.

In Abdul Ghani Haron v IGP, where the Internal Security Act was invoked, Hishamudin held that an applicant for habeas corpus had the right to be present in court during proceedings. 

Hishamudin also ruled that police discretion for arrest was not absolute and could be challenged if there was bad faith on the part of the police.

“He stood up to the test when there was pressure,” said Malanjum.

He said Hishamudin, who is newly appointed to the Judicial Appointments Commission, was also well known for his dissenting judgments.

“Dissenting judgments are one of the hallmarks of an independent judiciary. To Hishamudin, it is the moral and constitutional duty of a judge to dissent if he strongly disagreed with the majority decision.”

Malanjum said judges should not agree with the majority judgment for the sake of preserving judicial harmony.

He said judicial independence was vital to the extent that “a judge may even ignore the instructions from his superiors”.

“Neither are the lower courts bound to follow the higher courts. In the case of V. Kanagalingam v David Samuels (2006, ) (Hishamudin) departed from the Federal Court judgment and rendered the libel claim baseless,” said Malanjum, referring to the case of a lawyer whose successful libel claim against a magazine author was subsequently ruled to be without basis.

The book, edited by S. Saravana Kumar, is a compilation of commentaries on Hishamudin’s judgments throughout his 23-year career.

Hishamudin, who has written some 700 judgments, was never elevated to the Federal Court despite the Judicial Appointments Committee’s recommendation in 2013.

In an interview in 2015, Hishamudin said then prime minister Najib Razak had blocked the promotion.

Negri Sembilan Yang di-Pertuan Besar Tuanku Muhriz Tuanku Munawir, Dewan Rakyat Speaker Mohamad Ariff Md Yusof, Election Commission chairman Azhar Harun, Securities Commission chairman Syed Zaid Albar and 46 judges and judicial commissioners attended the book launch, held in conjunction with the 25th anniversary of law firm Lee Hishammuddin Allen & Gledhill. – November 8, 2018.