21 April, 2008
On 30 May 2001, in an unusual and courageous ruling, Judge Hishamuddin Yunus ordered the release of two ISA detainees on a writ of habeas corpus, and suggested that Parliament should review and either scrap or amend the ISA to reduce its potential for abuse.
THE CORRIDORS OF POWER
Raja Petra Kamarudin
The government must apologise to these judges, proclaimed Zaid. He was immediately taken to task and at the first Cabinet meeting another fortnight later he was whacked good and proper by his fellow Cabinet members. As part of his damage-control exercise, Zaid had to clarify that that was his personal opinion and not the opinion of the government.
A few days ago, Prime Minister Abdullah Ahmad Badawi officiated a dinner cum meeting of the Malaysian Bar Council and announced that the victimised judges will be given 20 years back-pay. The following day, however, Deputy Prime Minister Najib Tun Razak announced that the 20-year back-pay does not tantamount to an apology.
This is certainly a very confusing set of events. Is the government sorry or not? Have these judges been wronged or not? If not, then why the need to pay them 20 years back-pay? Compensation -- and this is compensation however you may twist and spin it -- is an admission that a wrong has been done and the 20-year back-pay is to right that wrong. So, if a wrong has been made, why then it is so difficult to apologise? Confusing lah!
Actually, what was not revealed is that the dinner cum meeting of the Bar Council was organised by the government. It was the government that mooted the idea and asked for the dinner cum meeting to be held. In fact, what was further not revealed is that the government paid for the whole thing. The Bar Council did not have to come out with one Sen. The government underwrote the entire cost and threw in a datukship for the Bar Council Chairman as a bonus. Yes, that’s right, the government used the Bar Council for its little wayang. And the Bar Council allowed itself to be used, for a price.
Well, as they say, everyone can be bought, even some members of the Malaysian Bar Council.
But never mind. Malaysia Today is not against righting whatever wrongs done by the government, even those done as far back as 20 years ago. If they want they can also look at the wrongs done to Malaysians back in time before Merdeka, such as those Chinese rubber-tappers in Batang Kali who were massacred by the government security forces -- and many, many more. Let these people too be compensated for crimes worse than getting sacked from their cushy jobs. Lives were lost, and in a very unjust way on top of that, so if compensation is due then let compensation be made. What Malaysia Today is equally concerned about is the ongoing injustice -- injustice that is still being perpetuated and has not ended -- and we demand that these wrongs be put right as well.
Since we are riding this euphoria of righting the wrongs done to judges, let us look at another case that appears to have gone unnoticed and uncorrected. This is with regards to the injustice done to Hishamuddin Yunus. I know, some of you are going to ask, Hishamuddin who? For those ignorant of whom this most illustrious judge is, read the sections below this piece.
Hishamuddin Yunus, who could actually be the Chief Justice of Malaysia, or at the very minimum the President of the Court of Appeal, has been placed in cold storage. Many other judges below him, some who have the habit of not writing their written judgements -- resulting in many prisoners still languishing in jail -- have been promoted above his head.
Yes, it has been revealed that many judges do not write their written judgements. Some even get their lawyer friends to write their judgements on their behalf. Some do not bother to write anything at all their entire career and many people are languishing in jail, some in death row, and they can’t file their appeals because there is no written judgement. And, to add icing to the cake, some of these delinquent judges have even gone up to become the Chief Justice of Malaysia.
That is the sorry state of the Malaysian judiciary. But people like Hishamuddin Yunus who I would even give my vote for Prime Minister of Malaysia has been placed in cold storage. And his only ‘crime’ is doing the right thing.
Yes, well and good, let us remember that dark episode in the history of Malaysia’s judiciary that happened 20 years ago. But that was 20 years ago. It is too late to do anything about what happened 20 years ago other than pay these judges millions of Ringgit in compensation in the form of 20 years back-pay. They can’t be brought back and given back their jobs. Many are too old and beyond retirement age plus, I believe, one has already died. But Hishamuddin Yunus is still in service. He is not dead or retired yet. It is still not too late to right the wrong done to him. Or are we waiting for 2028 so that we can hold another dinner cum meeting and then ‘honour’ Hishamuddin Yunus for the wrong done to him 20 years before that?
I will only believe that the recent ‘honouring’ of the ‘victimised’ judges is a sincere gesture on the part of the Abdullah Ahmad Badawi government and not a Mahathir-bashing exercise when I see the wrong done to Hishamuddin Yunus also righted. If not, then I shall have to dismiss this entire exercise as a feeble attempt at staging a mere wayang.
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On 10-11 April 2001, just days before public protests planned to mark the second anniversary of the sentencing of former Deputy Prime Minister Anwar Ibrahim, the authorities detained seven opposition leaders under the ISA, then three other people in the following days. Most of the ten, who were all held incommunicado until May 4, were members of Keadilan. The authorities alleged that they were plotting to overthrow the government but produced no evidence to substantiate this.
On May 30, in an unusual and courageous ruling, Judge Hishamuddin Yunus ordered the release of two ISA detainees on a writ of habeas corpus, and suggested that Parliament should review and either scrap or amend the ISA to reduce its potential for abuse. By mid-November, authorities had released three more detainees, but five had been served with two-year detention orders and were being held at the Kamunting Detention Centre. The six are: Tian Chua, Ezam Mohamed Noor, Badrul Amin Bahron, Hishammuddin Rais, Saari Sungib, and Lokman Nor Adam.
Human Rights Watch World Report 2002 (Also see: http://www.freeanwar.net/index3.htm )
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Notable court cases
1996 was to prove a busy year for Lingam, as lawyer or litigant in a number of notable court cases. About the same time, Lingam represented Berjaya group tycoon Tan in a defamation suit against veteran journalist MGG Pillai which the High Court found in Tan’s favour and awarded RM10 million in damages - a record sum. Pillai’s appeal to the Federal Court was heard by a three-member panel led by Eusoff, who upheld the finding but reduced the quantum of damages to RM2 million.
Still in 1996, Lingam filed three defamation suits for a total of RM190 million against lawyers, journalists and several others over an article in the International Commercial Litigation (ICL) magazine. The article ‘Malaysian Justice on Trial’ published in the November issue of the British-based magazine had suggested that Lingam and Tan had connections with judges, namely in the controversial Ayer Molek case and Tan’s suit against Pillai.
It was only last year that High Court judge Hishamudin Yunus dismissed the suit filed against the magazine and said it was Lingam’s wrongful conduct in the Ayer Molek case that had led to the publication of the article. Hishamudin said Lingam was guilty of “abusing and manipulating the process of court” in filing the action in the appellate and special powers division of the High Court instead of the commercial division.
The Malaysian Bar, 2 October 2007
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A judge of the big events
High Court Judge Justice Datuk Mohd Hishamudin Mohd Yunus made an unprecedented ruling on Thursday by awarding RM2.5mil to Abdul Malek Hussin, an ex-ISA detainee, for having been wrongfully detained by the police. This is not the first time his judgment has got people talking.
HE IS no new kid on the block. High Court judge Justice Datuk Mohd Hishamudin Mohd Yunus who on Thursday awarded an unprecedented RM2.5mil in damages to an ex-ISA detainee for having been unlawfully arrested and beaten up is certainly one of those judges people take notice of.
For one thing, he has presided over a number of high profile and interesting cases. For another, he has made a number of landmark judgments and at times, his comments in court have raised eyebrows in political circles.
Take for example his judgment in May 2001 where he ordered the immediate release of two reformasi activists, N. Gobalakrishan and Abdul Ghani Haroon, who were being detained under the Internal Security Act (ISA). The two had been vocal and had taken part in the wave of reformasi following the sacking of Datuk Seri Anwar Ibrahim as deputy prime minister.
Fifty days after their arrests, Justice Hishamudin ruled their detention was unlawful on grounds that there was abuse of power by the detaining authorities and a failure by arresting officers to justify the arrests. He ruled that that there was a premature decision by the Inspector-General of Police (IGP) and director of Special Branch to detain the two for more than 30 days and that they were “deliberately and unreasonably denied” access to their lawyers and family members right up to their hearing.
Justice Hishamudin, who holds a Bachelor's degree and a Master's of Law from the prestigious London School of Economics and Political Science, caused a stir in his 28-page judgment when he said it was high time that Parliament examined the relevance of the ISA which was originally meant to counter terrorism. He called for a review of the ISA and its provisions to prevent or minimise abuses.
While lawyers applauded him, this, however, did not go down well with the Government. Datuk Rais Yatim, who was then a minister in the Prime Minister’s Department, said it was not up to a judge to decide which laws should be amended. But the Asean Law Association was quoted as saying that judges could comment on the relevance of laws and had a duty to inform Parliament when a law became outdated or was inappropriate.
The Negri Sembilan-born Hishamudin, who became a High Court judge in October 1995, has also presided over other interesting political cases. In August 2005, he awarded RM4.5mil to Anwar in his libel suit against Datuk Abdul Khalid @ Khalid Jafri Bakar Shah, the author of 50 Dalil Mengapa Anwar tidak boleh jadi PM (50 reasons why Anwar cannot be PM). Explaining the decision to award such a large figure, Hishamudin said the facts and circumstances of the case were unique and hence, the damages awarded must be reflective of the peculiarity of the case.
In another case heard in August 2005, where Anwar had sued the Government, the Home Minister and the then IGP Tan Sri Rahim Noor over the assault and infamous black eye incident while he (Anwar) was detained and held under police custody in September 1998, Hishamudin presided over the case. He struck out the suit when all parties came to an out-of-court settlement in which the sacked deputy prime minister was paid an undisclosed amount, and Rahim made an open court apology to Anwar for the assault.
Another riveting political case Hishamudin heard involved former Malacca Chief Minister Tan Sri Rahim Tamby Chik who sued Parti Keadilan Nasional (now Parti Keadilan Rakyat) former information chief Ruslan Kassim RM15mil for slander. But Justice Hishamudin again did not have to rule on the case because in January 2004, he announced that the two parties had agreed to settle the case out of court and Ruslan made an open court apology to Rahim for damaging his reputation.
He also heard a case that gripped the nation in October 2000 where express bus driver Hanafi Mat Hassan was accused of raping and murdering computer engineer Noor Suzaily Mukhtar, a passenger in the bus. Suzaily sustained 44 injuries and fractured a neck bone. She died from strangulation. Justice Hishamudin found Hanafi guilty and sent him to the gallows.
Last year, Justice Hishamudin also made a decision which sparked fresh debate when he ruled on the controversial Ayer Molek case. He ruled that the Federal Court panel that heard the case involving a dispute of shares was illegal and unconstitutional because only two of three judges – former Chief Justice Tun Mohamed Eusoff Chin and Datuk Dr Zakaria Mohamed Yatim – were competent to sit at the apex court.
He said the third judge, Datuk Pajan Singh, should not have heard the case because he was only a High Court judge back then. As such, he said, he was not bound by the Federal Court decision of that case handed down 11 years ago and chose to follow the Court of Appeal ruling instead.
By SHAHANAAZ HABIB, THE STAR, 20 October 2007
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