KUALA LUMPUR, Feb 28 — Lim Kit Siang demanded today that Chief Justice Tun Arifin Zakaria state if the 1995 Ayer Molek case was one of the reasons why Justice Datuk Mohd Hishamudin Yunus was recently denied a promotion in the latest round of judicial appointments.
He asked if Justice Hishamudin was being punished by Arifin’s predecessor, Tun Mohd Eusoff Chin who had once led a Federal Court panel to preside over the Ayer Molek case.
In a statement here, Lim noted that years after the apex court heard the case, Justice Hishamudin had, in a separate matter, asserted that Eusoff’s panel had been illegally constituted as it had included a High Court judge who was not deemed as legally competent to sit on the Federal Court bench.
Since then, Lim pointed out that the senior judge has been overlooked twice for promotions; the first time in September 2013 and the second on February 16 this year.
“Arifin Zakaria should explain whether the Ayer Molek case is one reason why Justice Hishammuddin has been denied elevation to the Federal Court twice – a case of former CJ Eusoff Chin exacting his final vengeance,” Lim asked.
“Arifin owes not only the local and international legal and jurist community, but the whole nation, a proper and satisfactory explanation as a series of recent cases and events have put the Malaysian judiciary in the dock as to its ability to uphold a truly independent judiciary with just rule of law,” he added.
Lim cited the revelations made by retired Court of Appeal judge Justice K. C. Vohrah in last year’s in-house Malaysian judiciary publication to mark the appellate court’s 20th anniversary.
According to Malaysiakini today, Vohrah had alleged that ex-CJ Eusoff had first tried to influence a Court of Appeal judge who was about to hear the appeal of the controversial Ayer Molek case in 1995.
Vohrah was one of the judges in the appellate court panel about the hear the case, along with the now-retired Court of Appeal judge N. H. Chan and Tan Sri Siti Norma Yaakob, who was later made the first female Chief Judge of Malaya.
In the article titled “In the Court of Appeal, during the winds of change”, Vohrah alleged that Eusoff had called one of the panel members into his chambers before the appeal, Malaysiakini reported.
The news portal, citing Vohrah’s claim, wrote that Eusoff then gestured to the sheaf of papers on his table and indicated that the appeal had no merit.
Vohrah did not name the judge who met Eusoff, however.
Lim said according to the judge’s explanation, the Ayer Molek case involved the granting of an ex-parte order compelling the rubber company to effect the transfer of 540,000 of its ordinary shares to Insas Bhd in the share register of the company.
The April 10, 1995, order also compelled Ayer Molek to issue new certificates in Insas’ name within two working days of their receiving the share certificates.
Two days later, Ayer Molek filed an application to set aside the ex-parte mandatory order.
During the High Court hearing of the application, the presiding judge proceeded to adjourn the matter to April 27 that year, which was after the two day period allowed for compliance of the ex-parte order.
According to Vohrah, Lim said, the case defendants immediately applied to stay the ex-parte order pending the disposal of their application. But the High Court rejected their bid.
Subsequently on April 14, the share transfers were made in compliance with the order.
On April 18, Ayer Molek filed a notice of appeal against the ex-parte order at the Court of Appeal. On the same day, they filed a motion for a stay of the ex-parte order pending their appeal.
According to Malaysiakini, the appellate court panel comprising Vohrah, Chan and Siti Norma then granted an interim order pending the disposal of Ayer Molek’s appeal against the ex-parte order.
“As Vohrah wrote in his article, it was abundantly clear at the Court of Appeal that grave injustices had been perpetrated in the case at the High Court level,” Lim said.
“Insas - through their legal advisers - have abused the process of the High Court by instigating the injustice through misuse of the court’s procedure by manipulating it in such a way that it becomes manifestly unfair to the defendants,” Lim continued, quoting this time from Chan who penned the appellate court’s judgment on the matter.
The appellate court granted the stay order on July 26 that year, Malaysiakini reported.
But according to Vohrah, a stay application on appeal against that decision was filed with the Federal Court the following day.
The Federal Court panel, headed by Eusoff, heard the matter on August 1 and immediately set aside the Court of Appeal’s decision.
According to Vohrah, the Malaysian Bar was aghast at the apex court’s decision and even issued a statement to say that the panel led by Eusoff had been illegally constituted as one of its members was a High Court judge and therefore not legally competent to join the bench.
Recalling the matter, Lim noted that he had raised the case in Parliament that year, questioning how the High Court judge had made the “double jump” to sit as a Federal Court judge.
Eleven years after the case, Insas lawyer V.K. Lingam reportedly attempted to cite the Ayer Molek case in one RM100 million defamation suit that was being heard before Justice Hishamudin, saying the appellate court’s judgment in the former matter had been expunged.
But Justice Hishamudin maintained that the Federal Court panel then had been illegally constituted, noting the presence of a High Court judge in the panel.
He subsequently dismissed Lingam’s suit.
“Is the Ayer Molek case one reason why Justice Hishammuddin has been denied elevation to the Federal Court twice — a case of former CJ Eusoff Chin exacting his final vengeance?” Lim asked.
