The Perak constitutional crisis case of 2009 and the Roman Catholic Archbishop’s challenge against the Home Ministry over the use of the word “Allah”, were recent highly-charged cases that gripped the nation.
However, to former Court of Appeal judge, Justice Mohd Hishamudin Mohd Yunus, who never sat on any of these two cases, the High Court decisions in both cases should have stood.
Judging by the facts of the cases, he said he would be inclined to agree with the decisions of the High Court judges had he sat on the Federal Court bench.
In the Perak case, the Kuala Lumpur High Court decided then PAS leader Mohamad Nizar Jamaluddin (photo) was the rightful menteri besar.
The decision was made by Justice Abdul Aziz Abdul Rahim, who is now at the Court of Appeal.
However, that decision was overturned by Court of Appeal and upheld by the Federal Court recognising Zambry Abdul Kadir as the MB.
In the Archbishop’s case, the High Court in 2009 decided the banning of the word 'Allah' in the Bahasa Malaysia publication of the Christian weekly The Herald was unconstitutional.
The High Court judge who made the decision was Justice Lau Bee Lan.
However, as in the Perak case the decision was overturned by the Court of Appeal and the Federal Court upheld it with a narrow 4-3 majority.
Justice Hishamudin, however, did not want to comment on another controversial case, the Anwar Ibrahim Sodomy II trial, as the case is on review.
Leaving it to public opinion
Hishamudin said from conversations with the public, he can understand how the independence of the Court of Appeal and Federal Court can be questioned, especially when it comes to high profile cases.
“As to whether the superior courts are truly independent, I leave it to the court of public opinion to judge.
“I can only say this. Judges are expected by the Federal Constitution and their oath of office to be independent in making decisions; to decide in accordance with the law and the constitution; and to decide without fear or favour.
“To what extent that a judge lives up to this expectation depends on the integrity of the individual judge.
“But a person must not accept the appointment of a judge if he/she is timid or cannot not live up to the expectation of his or her office,” he said.
However, he said that as a Court of Appeal judge, he had never been told or directed how to decide a case; or been reprimanded over a decision that he had made.
Asked further on perception that many top judges are sympathetic to Umno, Hishamudin said it was neither fair nor appropriate for him to speculate on their sympathies or political inclinations.
“All I can say is that judges must decide cases according to the facts, the law and the Constitution. Political leanings are irrelevant.
“An honest judge must put that aside in deciding cases,” he stressed.
The highly-respected judge said incidences like a video tape allegedly showing how judges are brokered caused damage to the judiciary’s image, and it will take time to recover.
“The negative perception is still there,” he admitted.
He may be leaving the judiciary, he said, but his love for the nation remains strong.
His wish as such is to see Malaysia be a truly democratic nation.
“Where the rule of law and human rights are respected in accordance with the spirit of the Federal Constitution and the Rukun Negara, with the citizens living in harmony and enjoying a decent standard of living; and corruption and abuse of power kept to a very minimum.” - mk
Hishamudin: Saya berbeza hakimi kes Perak, 'Allah'
Yes, Najib blocked my promotion, says retired judge Hishamudin...
He may have been hailed as a beacon of light in the Malaysian judiciary but he never got the promotions his peers such as recently appointed attorney-general Mohd Apandi Ali did.
Court of Appeal justice Mohd Hishamudin Mohd Yunus, who retired earlier this month, confirmed Prime Minister Najib Abdul Razak halted his elevation to the Federal Court.
He explained that this happened in 2013, when the judicial appointments commission (JAC) recommended his name to the PM for appointment to the Federal Court.
“Unfortunately, the PM was not in favour of my elevation to the Federal Court. I think this fact is public knowledge,” he told Malaysiakini in an exclusive interview.
Formed through the JAC Act 2009, the commission was mooted during former premier Abdullah Ahmad Badawi's time.
Its role is to ensure an unbiased selection of judges to the High Court, Court of Appeal, and Federal Court where the commission would weigh in and make recommendations to the PM.
The commission came in the aftermath of the royal commission of inquiry into the Lingam video tape controversy in 2007 that involved political interference in judicial appointments.
Hishamudin's many landmark decisions throughout his 23-year career may have impacted his promotion.
Among his memorable rulings was his decision in 2001 to release PKR leaders N Gobalakrishnan and Abdul Ghani Haroon from detention under the Internal Security Act (ISA) and a more recent decision that the persecution of cross dressers is unconstitutional.
Career triple bypass
As to how many times he has been bypassed for promotions to the Federal Court - whether it was three - Hishamudin said he did not bother to count.
“But probably, you could be right,” he said.
Asked how he felt about this, he admitted to feeling downhearted.
“To be honest, I felt disappointed. It would be unnatural if I did not feel that way. After all, I am human,” he said.
Hishamudin, who hails from Gemas, Negeri Sembilan, is known for many landmark judgments when he was on the bench at the High Court and the Court of Appeal.
He is one of the longest serving judges at the High Court, where he was appointed as a judicial commissioner in 1992 and then confirmed in Oct 1994, before his elevation to the Court of Appeal in April 2009.
He was the senior most Court of Appeal judge in 2015 that had not gotten promoted to the apex court.
Constitutional law expert and law professor Shad Saleem Faruqi paid tribute to this legal luminary upon his retirement with an article in The Star last week, highlighting Hishamudin’s many landmark decisions.
It was reported in Malaysiakini in February that Putrajaya had put a stop to Hishamudin's advancement as a Federal Court judge in January 2013, as his name was omitted despite a recommendation by the commission.
The rumour then was that the snub had something to do with Hishamudin leading a panel at the Court of Appeal against Najib, which unanimously overturned the High Court decision which said M Manoharan and P Uthayakumar had no legal standing to sue the government over the welfare of Tamil schools.
Manoharan described that case, a challenge on behalf of Hindraf, as the only time someone had won against a sitting prime minister.
Disappointed but no regrets
Asked whether he views his non-elevation to Federal Court as a form of discrimination, Hishamudin quipped, "Well, what do you think?"
He added that despite the snub, he had no regrets.
“I had carried out my duty as a judge in a manner expected of me. I have upheld the oath of office and decided cases in accordance with my conscience, the law, and the Federal Constitution.
“I have consistently upheld the cause of justice. If I have to relive my life again as a judge, I would still have decided those landmark cases in the same way that I did,” he said.
On describing his retirement from the bench, he said he leaves with a great sense of fulfilment.
“I think I have done my very best in serving my country, in contributing to the development of Malaysian law, and above all, to the cause of justice,” he said.
When asked of his relationship with his peers, including Federal Court judges Abdull Hamid Embong and Apandi (above), Hishamudin said he was happy for them.
“Our acquaintances go a long way back. We were law students in London in the late sixties and early seventies.
“In fact, all three of us were on the same Qantas Boeing 707 flight that night to London in September 1969; and going under the same scholarship.
"Abdull Hamid and myself were classmates at Malay College Kuala Kangsar, from 1962 to 1968, and both of us grew up in the judicial and legal services,” he said.
Besides Abdull Hamid and Apandi, former Court of Appeal judge Mohamad Ariff Md Yusof was also from the same batch.
Justice Ariff entered the judiciary from private practice in 2009 and he retired in January from the Court of Appeal. All of them studied at the London School of Economics. - mk
Bekas hakim: PM sekat kenaikan pangkat saya.
Dr M: Najib berpontensi ditangkap di luar negara...
Berdepan beberapa siasatan penggubahan wang yang dikaitkan dengan skandal 1MDB, perdana menteri berpontensi untuk ditangkap di luar negara, kata bekas perdana menteri Tun Dr Mahahtir Mohamad.
Beliau berkata demikian dalam satu ucapan pada Jumaat, berdasarkan kepada video klip yang dimuat naik penulis blog Din Turtle, yang menjalankan beberapa temubual kritikal Dr Mahahtir terhadap Datuk Seri Najib Razak.
Dr Mahahtir berkata Najib mungkin dapat mengelak siasatan terhadap skandal 1MDB yang sedang disiasat di luar negara, tetapi tidak di luar negara.
"Undang-undang dunia berbeza daripada dulu. Kalau jenayah buat di sini, undang-undang sini berkuatkuasa.
"Tapi jika (jenayah) kaitan dengan luar negeri, negara lain ada kuasa (untuk mengambil tindakan)," katanya.
"Sekarang ini, di Switzerland, Britian, Amerika Syarikat... (sudah ada siasatan penggubahan wang). Mereka berhak untuk saman untuk suruh Interpol tangkap (jika ada alasan kukuh).
"Kalau (dia) keluar daripada negara, mungkin akan berlaku tangkapan," kata negawaran dalam ucapannya dalam majlis 'Kumpulan Melayu Berani Bersatu' di Kuala Lumpur, seperti menurut video klip itu.
Bagaimanapun Dr Mahathir cukup berhati-hati dengan menyatakan ia hanya spekulasi.
"Itu mungkin. Saya cerita, bukan akan berlaku," kata bekas perdana menteri selama 22 tahun itu. - mk
Mahathir speculates about Najib’s arrest abroad.
FBI Opens Money-Laundering Investigation On 1MDB...
Shortly after police officers from Bukit Aman arrested former UMNO leader Khairuddin Abu Hassan, WSJ reports that the US Federal Bureau of Investigation (FBI) has initiated an investigation into allegations of money-laundering linked to the debt-ridden 1MDB
Citing an unnamed person familiar with the matter, the Wall Street Journal (WSJ) said the FBI's probe is the latest in a series of international investigations centred on the 1MDB scandal. It, however, said that the scope of the investigation wasn't known.
Although contrary to the claims made by Khairuddin's lawyer Matthias Chang that the former UMNO leader was scheduled to travel to New York to meet with an FBI agent to urge the U.S. authorities to investigate PM Najib's involvement in the 1MDB, a spokeswoman for the FBI's New York office told WSJ that no agent in the office had arranged to speak with Khairuddin or had any previous contact with him.
1MDB was set up by Najib to invest in Malaysia's economy.The international investigations center on entities related to 1Malaysia Development Bhd., which was set up by Prime Minister Najib Razak in 2009 to help drive the economy. The fund is having difficulty repaying more than $11 billion of debt and is at the center of investigations that are destabilizing the government.
A Malaysian government probe found that nearly $700 million moved through banks, agencies and companies linked to 1MDB before being deposited into Mr. Najib’s alleged private bank accounts ahead of a close election in 2013, the Journal reported in July.
The source of the money is unclear, and the government investigation hasn’t detailed what happened to the funds that allegedly went into Mr. Najib’s personal accounts. Malaysia’s anticorruption body in August said the funds were a donation from the Middle East. The donor wasn’t specified.
Mr. Najib has denied wrongdoing and denied taking money for personal gain.
We know the Switzerland's Office of Attorney-General has opened a criminal proceedings against two unidentified executives of 1MDB and has also frozen tens of millions of dollars in Swiss banks.
After which, on 15 September, Switzerland’s Federal Prosecutor said his Malaysian counterpart, Apandi Ali, has agreed to arrange for Swiss investigators to interview witnesses in their investigation.
In a statement, Switzerland’s Office of Attorney-General said that its chief, Michael Lauber, today met with his Malaysian counterpart, Tan Sri Mohamed Apandi Ali, to discuss “mutual cooperation” in the 1MDB case.
The statement said the Swiss regarded Malaysian cooperation as crucial to their ongoing inquiry. The Swiss did not identify witnesses whose testimony they formally requested Malaysian authorities to arrange.
Meanwhile, commenting on the series of ongoing investigations by foreign countries into alleged money-laundering activities linked to 1MDB, the longest-serving PM of Malaysia, Dr Mahathir, said it could lead to PM Najib being arrested abroad if any wrongdoing is proven.
Speaking at a meeting with an NGO named Kumpulan Melayu Berani Bersatu on Friday, Dr Mahathir said that there was a “possibility” that such a scenario could happen.
"Those countries ― Switzerland, Britain, America ― if they find Najib doing any money laundering (activities) they can ask Interpol to arrest him if he goes overseas. So he (Najib) has to remain here, like how he withdrew the passports of some people and barred them from going overseas," the said in a video uploaded on Youtube.- says.com