Sunday, May 26

Court of Appeal judge reprimanded by his superior over dissenting judgement


KUALA LUMPUR: A Court of Appeal Judge yesterday disclosed that he had been reprimanded by a top judge for writing a dissenting judgment in unilateral conversion of M Indira Gandhi case two years ago.

Datuk Hamid Sultan Abu Backer said after that case, he was not surprised when he was not assigned or empaneled to hear cases related to the Federal Constitution and public interest matters.

Hamid Sultan said he however, managed to raise the constitutional oath jurisprudence in some of the civil and commercial cases.

“After the judgement was released to the public (Jan 6, 2016) a top judge called up the entire coram and severely reprimanded me alleging inter alia of judicial activism and not only that but he started throwing tantrums at me in an uncivilised manner.

“I stood my ground. My response to that top judge was that I do not have to defend my judgment and I will not be cowed to act against my Oath of Office.

This incident created a long-term strained relationship with that judge and many more,” he said in his speech at the International Malaysia Law Conference entitled “Judiciary as The Principal Guardians of The Rule of Law”.

On Dec 30, 2015, the Court of Appeal in a 2-1 majority decision ruled that the validity of three children’s conversion by their Muslim covert father could only be determined by the Syariah Court.

Justice Datuk Balia Yusof Wahi, chairing a three-member bench that included Justices Hamid Sultan and Datuk Dr Badariah Sahamid, held that matters relating to Islam, religious issues and whether a person is Muslim, fell exclusively under the Syariah Court.

Concurring with him was Justice Badariah while Justice Hamid Sultan dissented.

Hamid Sultan in his 74-page written judgement dated Jan 5, 2016, said the Civil High Court had the power to decide on the validity of conversion certificate as the primary issues did not involve the Syariah Court.

The panel made the ruling after allowing appeals by the director of the Perak Islamic Religious Department and two others, the Government of Malaysia, Education Ministry and the children’s father, Muhd Riduan Abdullah, formerly known as K Patmanathan.

The six appellants were appealing against the Ipoh Civil High Court’s decision quashing the certificates of conversion of the three children.

In 2009, the Ipoh Syariah High Court gave Muhd Riduan custody of his two boys and a daughter after he converted them to Islam in April 2009 when the children were aged 12 and 11 years, and 11 months.

The Ipoh Civil High Court had also declared the custody order as null and void as the Syariah High Court had no jurisdiction to grant the custody order when the other party (the mother) was not a Muslim.

The court made the order after allowing a judicial review application by the mother of the children, M Indira Gandhi, a kindergarten teacher, for an order that the certificates of conversion were null and void and of no effect.

Hamid Sultan in his speech, said he also took a strong view that without a judiciary committed to Judicial Dynamism, the Rule of Law would be meaningless and corruption as well as kleptocracy could not be arrested.

On a firmer note , he said he did not support Judicial Activism but he subscribed to Judicial Dynamism.

“In addition and notwithstanding that I have a large fellowship in the Malaysian Bar – when writing judgments I don’t have any friends or enemies and all my judgments are conscious judgments subscribing to my oath of office.

“On a personal note I like to place on record that I have been greatly affected by the debate related to judicial activism, passivism and dynamism in the judiciary itself.

“I am continuously being harassed for some of my decisions directly or indirectly. If a royal commission is appointed I will gladly give my reasons,” he said.

Meanwhile, retired Federal Court judge Datuk Seri Gopal Sri Ram in his speech said he agreed that the judiciary are the principal guardians of The Rule of Law in the country because they are tasked to function by the words of the Constitution .

However, he said the judiciary in the country failed for many years because they applied the Constitution provisions literally whereas there were wide clauses in the Constitution.

“There was a great desire to protect the executive at one time and because of that they give narrow interpretations to wide clauses,” he said. — Bernama