Judicial wisdom, independence and Judge Mohamed Hishamudin Mhd Yunus
“The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day”. Joseph Story (commentaries on the constitution)
OF REBELS RADICALS AND ROGUES
When retired Judge NH Chan lent his voice and exposed his political leanings to an audience of Malaysian lawyers at an event titled “13 May to 1 Malaysia forum”, he also revealed a darker side to the quality of justice and the judiciary in Malaysia.
That event like the many others staged by NGO’s and the Malaysian Bar who ‘seek change of government’ in Malaysia, was funded in part by the sinister, CIA linked ultra right wing organization, The National Endowment for Democracy (NED) and its civil societies movement.
Succession in infamy came quicker than expected, when High Court Judge Lau Bee Lian delivered her egregious decision in the Catholic Herald matter not long afterwards.
With her judgment in the Catholic Herald matter, Lau removed any doubts about the existence of ‘hostages to fortune’ and the cult of ignorance so deeply embedded within, infecting the legal fraternity, undermining the independence of the judiciary and the courts in Malaysia.
Apart from NH Chan’s bickering about justice and the courts in Malaysia, the situation with Malaysia’s judiciary in and out of office, demands a more informed debate on judicial appointments and a closer scrutiny of the quality of candidates for the bench.
RET. JUDGE HISHAMUDDIN MHD.YUNUS VIA THE MALAYSIAN INSIDER
Alexander Hamilton (The Federalist Papers)
Retried judge Datuk Mohd. Hishamuddin Mohd. Yunus (Hishamuddin Yunus) in seeking to join the ranks of the NH Chans of this world has now added his divisive desultory comments to the debate on politicizing and polarization of the judiciary.
By his comments retired judge Hishamuddin Yunus attacks the pillars of justice with his unique take on judicial independence, the courts and the executive. Nothing wrong with that one might suggest till Hishamuddin Yunus’s comments are examined for what they really are; except that he approbates then reprobates on the subject as if these were statements prepared for him by others or that he is out of his depth on the subject matter on which he speaks.
They who seek to erode the constitutional prerogatives of the executive in appointment of judges on the one hand, whilst criticizing judicial independence on the other, now speak in forked tongues through yet another voice of dissent from dysfunction.
Is this a genuine call for constitutional reform, or is Hishamuddin Yunus yet another stalking horse of the Malaysian Bar and the NED advancing their ‘blunderbuss’ political agenda of inciting rebellion in furtherance of the objectives of destabilization by the NED?
REVELATIONS, REFORM, REVOLT OR JUST PLAIN SEDITION?
The NED in Malaysia as it has in Syria and a host of other states, an agenda of destabilization and undermining of government in Malaysia.
Robert Baer the former CIA station chief in Tehran and Islamabad who once worked in the process of engineering destabilization of governments including in Yugoslavia has published books of how these programmes work.
In his books and documentaries Baer identifies the key players in the networks funded by the NED. Many so called “NGO’s” and individuals, including a former US diplomat stationed in Malaysia, still closely connected to the financing and the spread of unlawful dissent are named by Baer. More on that later.
Hishamuddin Yunus’ comments are seditious. By his comments he seeks to intimidate those sitting judges with his unfounded allegations, accusing them of being bound to factional governmental interests, afraid to stand up against what he implies is the tyranny of government.
The retired judge must be called to answer. He offers no evidence of any value to support his comments, except for the tired worn out and cliched rhetoric of the opposition sounding less and less credible each day.
The Prime Minister it appears, ought to be left out of the process of appointment of judges, according to some. Is this proposition to be taken to represent a thought out and permanent alternative feature of a new constitution? or its it something applicable only to the current government and its prime minister ?
Hishamuddin’ s comments are nothing more than a narrow judgmental and precipitous provocation deliberately designed and aimed at inciting rebellion from within the ranks of judges. It is a dangerous enterprise and one that is fraught with consequences for the retired judge and for the legal system in Malaysia.
TO LEAD BY EXAMPLE
“Leaders in all spheres who are living with a problem should be encouraged, not coerced, to lead by example and disclose their problematic status”. Nelson Mandela
Hishamuddin Yunus comments appear to be political in every sense of the word. They are mischievous as they are irresponsible. How does Hishamuddin Yunus judge the qualities of independence and fearlessness in judges?
The retired judge offers no examples of ‘bound’ ‘self interested’ or ‘timid’ judges to support his scurrilous claims against the judiciary. As a former judge he of all people ought to know the importance of evidence to support claims against anyone, let alone the otherwise sacrosanct judiciary; or to be silent.
His calls on the judiciary not to ‘fear victimization‘ and to act ‘fearlessly‘ is patronizing and condescending. By his own actions he is unable to demonstrate that quality of fearlessness in his own character.
Paradoxically Hishamuddin is not allowing judges, whatever their disposition or character, to be themselves and thereby independent of his own narrow politically driven interpretations and ideals of what being ‘fearless’ and ‘independent’ is about. Isn’t that difference in thought and style also what independence is about?
“Independence? That’s middle class blasphemy. We are all dependent on one another, every soul of us on earth.”
George Bernard Shaw
Judges who fail to meet Hishamuddin Yunus’ s esoteric standards of “independence” and “fearlessness” it seems may be “looked down upon by citizens” or not respected by them according to him.
Odd, this comment is, when one considers that in an adversarial justice system, support (and respect) for judges, their opinions, reasons and decisions will inevitably and necessarily result in at least one party to any decision or contest having something less than complimentary or respectful to say of the deciding judge.
Is vanity the sort of “respect” Hishamuddin Yunus speaks of what judges ought to aspire to? Do they really care about what people think of them? Should they?
Is Hishamuddin Yunus advocating for an unaccountable, totalitarian and dictatorial mindset of a “one size fits all” in the judiciary? If he is then he will have difficulty arguing the merits of his case or convincing anyone that he means otherwise.
FROM AN INSIDER TO THE INSIDER
Hishamuddin Yunus attack published in The Malaysian Insider on 20 December 2015 is identical to a string of other attacks against the judiciary by ‘prominent Malaysians’. They are part of a highly organized and foreign funded initiative to undermine the judiciary and to destabilize government and undermine the constitution.
The Malaysian Insider and those elements of the opposition who it favours, are often those like the retired judge whose skeletons rattling loud in their closets, awaken the opportunist in ‘civil societies’ and their drivers like the NED into action;
The NED is unafraid and willing to resort to intimidatory tactics exposing the skeletons of people like this retired judge as it did with NH Chan when it was expedient and in their interests to do so.
THE MALAYSIAN INSIDER INDEPENDENCE FEARLESSNESS AND IMPARTIALITY?
“Judges, therefore, should be always men and women of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men.”
What Hishamuddin has to conceal from the public eye as the quid pro quo to his speaking out as a captive of forces in the shadows threatening to ruin his reputation is yet to be discovered. With NH Chan it was always his philandering and being a hostage to fortune.
Lau Bee Lian’s decision in the Catholic Herald matter would in the view of Hishamuddin Yunus and the Malaysian Bar exemplify those qualities of “fearlessness” and “independence” as they see it no doubt.
Oddly enough, Hishamuddin Yunus does not seek to raise his concerns about the lack of impartiality and independence within the judiciary through the more appropriate procedural platform of parliament.
Hishamuddin instead indulges the mouth piece of an undemocratic opposition in The Malaysian Insider to smear a bench he once was a part of.
THE DOCTRINE OF JUDICIAL INDEPENDENCE VS THE VICE OF JUDICIAL IGNORANCE
The doctrine of judicial independence is a double edged sword. On the one hand one realizes that judges in truth cannot be totally independent from the executive and the legislature.
The legislature passes laws which judges are bound to uphold. As far as the executive is concerned judges are appointed and removed by the executive (through the sovereign) by the Prime Minister of the day and are thereby not necessarily free from or independent of one or the other in a strict sense.
The doctrine of judicial independence (within the separation of powers) remains a doctrine and a precarious one at that. So how would these alternatives to the current constitutional position opposed by Hishamuddin Yunus and the Malaysian Bar operate in the alternative?
In its classic form the doctrine of judicial independence seeks to separate the powers of the judges and their courts from the powers of the legislature and the executive so as to avoid the creation of a tyrannical regime when power is concentrated in any one arm of government.
More importantly and critically the doctrine of judicial independence also requires that a judge must be free from unjust criticism (the media, other judges, political and interests groups and government), free of the temptation of pecuniary inducements (which is why they are paid well), free of their personal moral, political, religious and social beliefs.
Judges typically are selected from a narrow band of men and women of impeccable unshakeable faith in the law and of unblemished character. These are disciplined individuals whose faith in the law and the principles of good governance take precedence over their own personal, moral convictions and their political preferences or leanings. At least that is the theory.
Hishamuddin Yunus’s recent outburst reinforces the position that this is more a theory than it is about reality; and that independence cannot be measured by the political yardstick of critics.
Above all judges are selected for judicial service because of their knowledge of the law, their ability to research and go beyond the mere precedents set by the law and for their ability to transcend the uni dimensional academic scriptures of law. This is what gives the law life and relevance.
THE IDEA OF RESPECT – A HISHAMUDDIN DILEMMA
The choice of The Malaysian Insider as a platform for such criticism is very telling on Hishamuddin Yunus’s own qualities as a former judge. It was an unfortunate choice of media outlet for its total lack of independence, analytical or balanced material or character.
The Malaysian Insider censors any criticism or valid comment on this very important unprecedented topic (an attack by a former judge on his colleagues and on the institution of the judiciary) by deleting comments that challenge the veracity and the underlying principles that Hishamuddin Yunus so piously articulates in his comments.
Respect and regard for the law requires an opportunity for Hishamuddin Yunus’ criticisms and critics to be given a fair opportunity to respond to his charges.
Criticisms, especially constructive criticisms (and not only) are part and parcel of a democratic milieu. It is a corollary to criticism that one also appreciates, acknowledges and accepts counter criticism or a rebuttal in response. Not with Hishamuddin Yunus publisher The Malaysian Insider it seems. And by that the former judge is tainted.
The very need for judges to be free of external and extrinsic influence in the discharge of their duties independently is clearly misunderstood by the selective criticisms of Hishamuddin Yunus. Unless of course he is prepared to demonstrate his knowledge of the law by being specific about breaches by other judges which is implied by his comments he should remain silent.
The Retired Judge for his part has little to show for his judgments. He has less to show for his knowledge and of the processes of the law. No landmark decision incapable of being demolished by a competent lawyer or appeal court judge.
There is a saying “It is often wiser to be silent and to be thought of a fool, than to open your mouth and to remove any doubt“.
Ridicule and adverse public commentary against the courts and the judiciary especially where it is unjustified is contempt.
Discretion, Retired Judge Mohamed Hishamuddin Mohd.Yunus, is the better part of valour.