The government has skirted around answering why a veteran appellate court judge was not elevated to the Federal Court.
Instead when asked why Justice Mohd Hishamudin Mohd Yunus was bypassed, de facto Law Minister Nancy Shukri only listed the criteria for someone to be appointed, citing Article 123 of the Federal Constitution on the qualification of judges.
However none addressed the question of why Justice Hishamudin was sidelined.
Her written reply to the question asked by M Kulasegaran (DAP-Ipoh Barat), did say that the High Court, Court of Appeal, and Federal Court judges were appointed by the Agong upon the prime minister's advice.
Kulasegaran (photo) had asked in Parliament on Thursday what were the criteria for the elevation of judges and asked for reasons why Justice Hishamudin, the most senior Court of Appeal judge, was not elevated to the Federal Court.
Malaysiakini previously reported that Justice Hishamudin's namewas omitted from the promotion list, not once but three times, upon the recommendation of the Judicial Appointments Commission (JAC). It’s understood this was the result of a directive from the Prime Minister's Office.
The JAC was formed through an Act of Parliament when Abdullah Ahmad Badawi was premier, and it was intended to be transparent in the appointments of the judiciary.
Malaysiakini had also posed similar questions to Nancy and Chief Justice Arifin Zakaria through email since February this year, after an article on Justice Hishamudin's name being overlooked was put-up but there has not been a response from the minister and the CJ.
Justice Arifin (photo) when asked in 2013 about Justice Hishamudin’s promotion being stalled, maintained that the appointment or elevation of judges was made without the influence of anyone, and that it was at the prerogative of the Yang di-Pertuan Agong, on the advice of the Premier Najib Abdul Razak.
“The PM did consult us (through the JAC). But it is not 100 percent the prerogative of JAC.
"JAC looks at the merits of the appointment (or promotion) and then it would be the prerogative of the Agong. It is unfair of you (the media) to pinpoint a particular judge,” Justice Arifin had said then.
It was learnt the directive from the PMO came following a decision where Justice Hishamudin led a three member bench in January 2013 that ruled two Hindraf leaders, M Manoharan and P Uthayakumar, as having legal standing to initiate a class-action suit against Prime Minister Najib Abdul Razak and his deputy Muhyiddin Yassin.
DAP parliamentary leader Lim Kit Siang, hadalso quizzed why Justice Hishamudin was sidelined. He questioned if the controversial Ayer Molek Rubber Company vs Insas Bhd case, where Justice Hishamudin had presided a case related to it, was a reason why the judge was bypassed twice and denied elevation to the Federal Court.
Justice Hishamudin, who was a High Court judge then, had dismissed controversial lawyer VK Lingam’s suit against Euro Money Publications, for an article titled ‘Malaysian justice on trial’ that appeared in the International Commercial Litigation magazine.
In that judgment dismissing Lingam's suit, Justice Hishamudin declared the Federal Court panel in the Insas vs Ayer Molek case - led by former Lord President and Chief Justice Eusoff Chin - was illegally constituted as the third panel member, Pajan Singh, was then only a High Court judge (only judges of the Court of Appeal and above can sit in the Federal Court).
For the record, Nancy's answer on Article 123 of the Federal Constitution explained that it lists down the qualification of judges, namely the person must be a citizen of Malaysia, was a lawyer for at least 10 years, or a member of the federal or state judicial and legal service.
The JAC requirements are that the judge must have integrity, competency and experience, is objective, not biased, is fair and has good morals.
It also lists that the judge must be stern in giving out judgments in the stipulated time and have the skill to write good judgments, is hardworking and is well physically.
Nancy (photo) said in her reply that under Section 26 (1) (a) of the JAC Act, that after receiving the report from JAC, the names would be submitted to the PM who after receiving the report, can ask for two further names for consideration.
A local daily had previously described Justice Hishamudin as 'a judge of big events' after he ordered controversial author Khalid Jafri of the book `50 Dalil kenapa Anwar tak boleh jadi PM' to pay RM4.5 million in damages to opposition leader Anwar Ibrahim.
He was also the High Court judge who sentenced express bus driver Hanafi Mat Hassan to death following the brutal rape-cum-murder of clerk Noor Suzaily Mukhtar, and recently declared that Section 66 of the Negri Sembilan Syariah Offences Enactment which bars men from cross-dressing as women, as unconstitutional.
Justice Hishamudin is also the first member of the judiciary to grant damages for unlawful detention and assault against the government, when he awarded former ISA detainee, Abdul Malek Hussin, RM2.5 million in 2007.