Mohd Hishamudin Mohd Yunus cited the case involving the Herald Catholic weekly regarding the use of the word Allah, the Azmi Sharom sedition case, the Nur Juzaili Mohd Khamis transgender case, the Ezra Zaid challenge on his Syariah charge over a banned book, the R Yuneswaran case, and the hudud challenge by Gerakan, as some examples.

“These cases show a great reluctance on the part of the courts to strike down either federal legislation or state enactments on constitutional grounds.

“Where fundamental rights are concerned, the courts have been interpreting restrictions widely, to the extent that the right to exercise them is either denied or rendered illusory,” he brooded.

Hishamudin who just retired in September, said many disturbing issues and questions arose from these cases, such as whether the judiciary has forsaken its sacred role as the guardian and protector of the constitution and fundamental liberties.

He wondered if citizens in particular minorities look to the judiciary to defend their fundamental liberties.

“Have our courts become meek and subservient to the legislature and the executive, instead of asserting their judicial power and independence in upholding the rule of law?” he asked further.

He had presided the three-member bench at the Court of Appeal in the transgender case involving Nur Juzaili and two others which declared Section 66 of the Negeri Sembilan Syariah Offences Enactment that bars cross-dressing, as unconstitutional.

However, just after he retired the Federal Court ruled all decisions in the High Court and Court of Appeal in that case were not applicable as it should have been referred directly to the apex court, and not through judicial review.

The former judge who was speaking at a Law forum in Universiti Malaya following Human Rights Day today, said the issue is still alive as the apex court had not ruled Section 66 as constitutional.

Appointment of judges should change

Hishamudin said in light of these disturbing circumstances, Malaysians should seriously consider that something needs to be done.

“One would be to advocate for the establishment of a constitutional structure that provides for an independent judiciary in place in place of the existing constitutional structure, where the prime minister effectively determines the appointment of judges.

“The membership of the Judicial Appointment Commission should be expanded so that it would include the Bar as well as the academia and other relevant interests. There should be an end to the system where it is the prime minister who solely decides who should be appointed as judges,” he said.

Hishamudin known to have made many landmark judgments, had previously revealed that premier Najib Abdul Razak had halted his elevation to the Federal Court.