Another round of elevation for Federal Court and Court of Appeal judges has come and gone but it seems there is no room for the most senior Court of Appeal judge, Justice Mohd Hishamudin Mohd Yunus, to be elevated as a Federal Court judge.
What are the actual reasons behind the halt to his ascension despite him being over-qualified for the post?
It is understood that Justice Hishamudin's ( left ) name was omitted from the promotion list, as a result of a directive from the Prime Minister's Office.
This was in 2013, after the recommendation for his elevation had passed through the Judicial Appointments Commission (JAC)
Justice Hishamudin's name was missing again on the promotions list released on Feb 16 this year, in which he was bypassed in favour of Justice Zaharah Ibrahim.
His Lordship turns 66 this September, the compulsory retirement age for judges.
Observers remind us that Justice Hishamudin - well-known in the legal circles as an independent-minded judge - had 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.
The suit was filed by Manoharan ( left in photo ) and Uthayakumar ( right in photo ), and against the two as leaders of the government, following the gross state of neglect of 523 Tamil schools found themselves in despite being partially-aided government schools.
It is understood, the observers further noted, that the Prime Minister’s Office was upset that the appellate court saw it fit for the Hindraf matter to be re-tried after the High Court in Kuala Lumpur had earlier thrown out the suit, ruling the two had no locus standi.
Hurdle at High Court, too
Chief Justice Arifin Zakaria, when asked in September 2013 after word was leaked that Justice Hishamudin did not make the cut, 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 Najib as PM.
“The PM did consult us (through the JAC). But it is not 100 percent the prerogative of JAC. JAC looks at the merit in the appointment (or promotion) and then it would be the prerogative of the Yang di-Pertuan Agong. It is unfair of you (the media) to pinpoint a particular judge,” Justice Arifin ( left, at forefront ) had scolded then.
Justice Hishamudin, who studied at the London School of Political Science, University of London, was admitted as a barrister-at-law with The Honorable Society of Lincoln’s Inn of London in 1973.
He has had the unfortunate distinction of being overlooked previously, first when he was a High Court judge for promotion to the Court of Appeal, and now again to the Federal Court. In fact, Justice Hishamudin was forced to remain in the High Court for 14 years before moving up.
During his term on the bench, he has been credited with making various controversial and landmark decisions and in doing so, truly upholding the judge's oath to put the Federal Constitution ahead and above anything else.
Some of his landmark decisions included the recent transgender case ( right ) where he led a panel in ruling that the law on cross-dressing under Section 66 of the Negeri Sembilan Syariah Offences Enactment was unconstitutional. The matter is now subject on appeal in the Federal Court, with leave to do so being granted last month.
A CJ the country never had?
He also wrote the landmark majority judgment that declared Section 15 (5) of the University and University Colleges Act ( UUCA ) - which bars university students from taking part in political activities - as unconstitutional. Justice Linton Albert supported Hishamudin while former Court of Appeal judge Justice Low Hop Bing - who led the panel - dissented.
Justice Hishamudin had, in the High Court in Kuala Lumpur in 2001, also courageously allowed a habeas corpus application to release two then PKR Internal Security Act detainees - this at the time when the judiciary rarely intervened in such cases.
He is also noted for his pertinent remark on the now infamous Ayer Molek case by declaring the Federal Court panel - led by former Lord President and Chief Justice Eusoff Chin ( left )- 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).
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 book 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.
Justice Hishamudin is also the first member of the judiciary to award a former ISA detainee, Abdul Malek Hussin, RM2.5 million in damages for unlawful detention and assault.