The first woman in the country to be made top judge said they need not show loyalty to the four administrators as they were only “the first among equals” in the judicial hierarchy.

Besides the chief justice, the others in the top four are the Court of Appeal president, the chief judge of Malaya and the chief judge of Sabah and Sarawak.

“The loyalty that is expected from you is allegiance to defend the principle of the separation of powers, independence of the judiciary and uphold the rule of law,” she had said.

Fast forward to now and Tengku Maimun, who will be 62 next month, has the distinction of being in the minority in five judgments so far relating to constitutional issues, which is a rare occurrence.

Last week, she was the dissenting judge in a narrow 4-3 verdict that dismissed an appeal for citizenship by a boy who was illegitimate at the time of his birth. His parents only married five months later.

The majority ruled that an illegitimate child followed the citizenship of the mother, while Tengku Maimun held that the citizenship of a child could be determined by the mother if the identity of the father was unknown.

In April, she was also in the minority together with another judge in holding that Section 4(1) of the Prevention of Crime Act 1959 (Poca) was unconstitutional as it removed the judicial power of the court and violated the doctrine of separation of powers.

However, three others held as constitutional Section 4(1) of Poca, which lays down the procedures on the granting of remand orders by magistrates.

Over the last 15 years, chief justices have been in the minority only once each during their tenure in office.

The norm then was that the top judge would have led the bench to deliver unanimous or majority rulings, especially in interpreting the constitution.

In December 2007, then chief justice Abdul Hamid Mohamad and another judge were in the minority while three others ruled that law lecturer Dr Badariah Sahamid was qualified to be appointed as a judicial commissioner (JC).

The trio said her appointment was valid as she had been an advocate of the High Court in Malaya for 10 years preceding her appointment within the meaning of Article 123 of the Federal Constitution.

In April 2019, Richard Malanjum, who was about to retire, was also in the minority when the majority (5-4) held that the findings on Islamic finance by Bank Negara Malaysia’s Shariah Advisory Council (SAC) were binding on the civil courts.

It also ruled that SAC’s function did not encroach on the powers of the judiciary or violate the doctrine of separation of powers.

Retired Court of Appeal judge Varghese George said the dissenting judgments where Tengku Maimun led the bench did not reflect a personal agenda against her.

He said that in analysing the majority and minority verdicts, one must see if the end of justice was met rather than reading the written law literally.

“I’m glad that there is dissent because there are judges who are convinced that the spirit of the law and basic structure of the constitution must be upheld,” he said.

George, who was in the bench for seven years until 2017, said a dissenting judgment in the apex court opened an avenue for the issue to be revisited by another bench in the future.

However, retired Federal Court judge Gopal Sri Ram said Tengku Maimun had been in dissent as the majority had declined to follow the principles of constitutional interpretation laid down by the decision of the nine justices in the case of Alma Nudo in 2019.

“That decision constitutes binding precedent. A smaller bench may not agree with the decision in Alma Nudo, but it is bound to follow it, in order to act in accordance with judicial courtesy and judicial discipline,” said Sri Ram, who retired in 2010.

In the Alma Nudo Atenza case, the Federal Court’s nine-member bench struck down the provision of the Dangerous Drug Act 1952 which allowed the use of double presumption to secure conviction.

Sri Ram said the majority in a number of cases had acted against the agreed position between the parties before the court without giving counsel an opportunity to argue the point.

“This is a breach of the rules of natural justice as a party must be heard before the court makes a decision which is different from the agreed position adopted by the parties,” he said.

Former Malaysian Bar president Zainur Zakaria said his reading was that there were “two camps” in the Federal Court.

“One is concerned about executive power and they are of the view that it seemingly encroaches on judicial authority,” he said.

Zainur said some judges were attempting to restore judicial power as ouster clauses in written laws were incompatible with the basic structure in the constitution.

“However, one has to look into the intention of Parliament as these clauses were enacted for security reasons. As such, a balance must be struck between the interest of the state and the litigants,” he said.

He said he expected the trend of split decisions in the apex court to continue until Tengku Maimun retired from office. Judges leave office at the age of 66.