This was the bench, headed by Justice Mohd Hishamudin Mohd Yunus, that ruled he and Hindraf leader P Uthayakumar had legal standing to file a suit against the present prime minister and his deputy.
This decision by the appellate court, delivered in January 2013, is said to have halted Justice Hishamudin’s elevation as a Federal Court judge by the Prime Minister’s Office in September that same year.
This followed widespread talk that Prime Minister Najib Abdul Razak wanted another person elevated, not Justice Hishamudin, despite the Judicial Appointments Commission's (JAC) recommendation that Justice Hishamudin be elevated to the Federal Court.
JAC is the body formed under the law in 2009 to oversee the appointment of judges of the High Court, Court of Appeal and the Federal Court.
Manoharan, who contacted Malaysiakini following the publication of yesterday’s article on Justice Hishamudin (right)
being overlooked again for elevation, said the Court of Appeal decision
in his case was a landmark of sorts as this was a first small victory
against a sitting PM and sitting deputy prime minister.“If I remember correctly, no suit or legal action filed against a sitting PM or DPM in Malaysia has ever been successful. The decision by the Court of Appeal led by Justice Hishamudin was one rare occasion,” Manoharan said.
“In deciding that we have legal standing to file the suit, the Court of Appeal ordered the case to be referred to the High Court and to be heard on its merits,” the lawyer added.
Besides this, Manoharan said, the Court of Appeal also awarded RM2,000 as costs.
Najib and Muhyiddin Yassin were named in the suit in their personal capacities as PM and DPM. Muhyiddin is also the education minister.
The suit was filed by Manoharan and Uthayakumar against the PM and DPM over the government’s alleged neglect of 523 Tamil primary schools nationwide, where they wanted the Tamil schools to be fully aided, as provided for under the Federal Constitution.
Justice Hishamudin sat with recently retired judge Justice Mohamad Ariff Md Yusof and Justice Abdul Aziz Abdul Rahim in the unanimous decision.
Initially senior federal counsel Effandi Nazila Abdullah had managed to have the suit struck out, based on the issue of locus standi
A Chief Judge Malaysia never had
Manoharan agreed that Justice Hishamudin is truly Chief Justice material or at the very least, the Chief Judge of the Court of Appeal.
It is unfortunate, he said, that the government does not recognise or had halted the promotion of judges who only upheld the law and the constitution.
“Justice Hishamudin is well-versed in all matters. He is an all-rounder be it in criminal, habeas corpus, civil, trade and even land laws. I had the pleasure of appearing before him two weeks ago, in a land matter, and he is very well-versed in it.
“In that case against Najib and Muhyiddin, he gave a full day hearing in allowing parties to submit. After making a decision, he wrote a full judgment on it.
“Initially, the government (PM and DPM) wanted to appeal the decision at the Federal Court but due to the strength of Justice Hishamudin’s judgment they withdrew the appeal,” he said.
Unfortunately, Manoharan said the suit did not go on as planned as Uthayakumar (left), who was the second plaintiff, faced a prison sentence as a result of a sedition charge.The lawyer noted that most of Justice Hishamudin’s judgments had been upheld by the superior courts.
Manoharan said he acted in the case of another Internal Security Act detainee, Badrul Zaman PS Mohamad, before Justice Hishamudin in the High Court, where the court awarded RM3.3 million for unlawful detention.
“Although the government was partly successful in its appeal to reduce the quantum of damages in that case to RM300,000, Justice Hishamudin’s judgment remains intact,” he said.
“I believe a lot of other decisions that Justice Hishamudin made have been upheld by the superior courts, for he gave sound judgments and reasoning.”
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