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.”