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A JUDGE WITH MANY LANDMARK DECISIONS Emeritus Professor Datuk Dr Shad Saleem Faruqi Holder of the Tunku Abdul Rahman Chair, Faculty of Law, University of Malaya Justice Dato’ Mohd Hishamudin Mohd Yunus illuminated the judicial firmament for 23 years and retired from the Court of Appeal on Sept 9, 2017. He was an exemplar of judicial integrity, fearless independence and unwavering commitment to constitutional supremacy and human rights. He saw law as an embodiment of justice and not a mere heathen word for power. Whenever he could, he interpreted legal provisions in such a way as to promote fairness and equity. He was a distinguished member of a very small band of Malaysian jurists in the “post-Salleh Malaysian judiciary”1 who maintained fearless independence, resisted politicization and refused to allow executive policies and priorities to trump the law and the Constitution. He acted with even-handedness towards all persons, irrespective of race and religion or political affiliation. The dominant tendency in the superior courts of his time, of allowing race and religion to outweigh the Constitution, did not colour his judgments. His life was animated by the finest ideals of the Constitution. The law in his hands was interpreted creatively and equitably. How far his example and his judicial philosophy will be emulated by other judges remains to be seen. What we can hope for is that in the new Malaysia after GE14, there will be more judges like him who will honour their oath to preserve, protect and defend the Constitution. A SELECTION OF HIS PROMINENT JUDICIAL DECISIONS Personal liberty: Throughout his judicial career, Justice Hishamudin showed tenderness for fundamental liberties and exhibited a creative and activist streak in his interpretation of laws. He will be remembered with respect by all those who believe that the judiciary must balance the might of the state with the rights of citizens.2 The learned judge will most certainly be remembered for his Abdul Ghani Haroon v IGP trilogy.3 In this series of cases involving preventive detention under the Internal Security Act, he made a number of bold and pioneering rulings. First, an applicant for habeas corpus has a right to be present in court during the proceedings. This eminent ruling was overruled by the Federal Court on a pedantic, literal and executive-minded interpretation of Article 5(2): “Where a complaint is made … that a person is being unlawfully detained the court shall inquire into the complaint and, 1 “Post-Salleh Malaysian judiciary” refers to the judiciary after the suspension of the Lord President Tun Salleh Abas and five other Supreme Court judges in 1988. Three of the six were ultimately dismissed. 2 Parts of this essay are drawn from the author’s article in The Star, “A Judge With Many Landmark Decisions”, Reflecting on the Law, Thursday, 17 Sep 2015. 3 Abdul Ghani Haroon v Ketua Polis Negara [2001] 2 CLJ 574; Abdul Ghani Haroon v Ketua Polis Negara Application (No. 3) [2001] 2 CLJ 709; Abdul Ghani Haroon v Ketua Polis Negara (Application (No. 4) [2011] 3 CLJ 606. unless satisfied that the detention is lawful, shall order him to be produced before the court and release him”. The apex court felt that the order of production should not be automatic and should be issued only after the judge is satisfied that the detention is unlawful. It is humbly submitted that the Federal Court was wrong and Justice Hishamudin was eminently correct. The proud history of habeas corpus in other countries supports a tradition that the applicant is required to be present in court rather than be heard in abstentia. To hold otherwise would make no sense if there is allegation of torture, inhumane treatment or of custodial death. In such circumstances the only way to establish facts is to produce the detainee in court. A second principle enumerated by Justice Hishamudin was that the discretion of the police to arrest is not absolute. Judicial review of executive discretion is possible if grounds of arrest and sufficient particulars are not supplied and access to lawyer and family is denied. The right to see one’s family was a creative interpretation of Article 5(1). Third, habeas corpus will issue if there is unreasonableness and bad faith in police conduct. Justice Hishamudin emphasized an objective rather than a subjective criterion to test the legality of police conduct. Fourth, in a courageous and innovative ruling, he ruled that the police can be restrained from re-arresting the detainee immediately after release. In another ISA case, Justice Hishamudin awarded the detainee in Abdul Malek Hussin bin Hussin v Borhan bin Hj Daud & Ors [2008] 1 MLJ 368 RM2.5mil in damages for unlawful detention and assault. His judgement was partly set aside on appeal. All the above rulings ran counter to prevalent judicial subservience to executive perceptions of security and public order in preventive detention cases. In Muhamad Juzaili bin Mohd Khamis v. State of Negeri Sembilan [2015] 3 MLJ 513, the appellants were Muslim men who, because of a gender identity disorder, had been expressing themselves as women by wearing female clothes and make up. Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 made it an offence for any male Muslim to wear a woman’s attire or to pose as a woman. The appellants had been repeatedly detained, arrested and prosecuted by the religious authority. They challenged the constitutionality of Section 66. The High Court dismissed the challenge. It was held by the Court of Appeal, with Justice Hishamudin writing the majority opinion, that Section 66 interferes with the personal liberty of the appellants because it prevents them from moving about in public places to reach their respective work places. The right to work is part of their right to life in Article 5(1). Additionally, Section 66 was inconsistent with Article 8 of the Constitution because it unfairly subjected G.I.D. sufferers to the same provisions as other normal males. It was further discriminatory because it singled out males who dressed like females and said nothing about females who dress like males. Section 66 affects the appellants’ right to freedom of expression, in that they are prohibited from expressing themselves in the way dictated by their psychological make-up. Equality: In Manoharan Malayalam & Anor v Dato’ Seri Mohd Najib Abdul Razak & Ors [2013] 8 CLJ 1010, the plaintiffs alleged that the Federal Government discriminated against Tamil primary schools contrary to Articles 4, 8 and 12. The High Court refused locus standi (legal standing to sue). Justice Hishamudin and his brother judges at the Court of Appeal overruled the High Court and granted the applicants the right to submit their arguments because concerned citizens with a bona fide complaint of human rights violation should have a right to be heard on merits. In the famous transgender, cross-dressing case of Muhamad Juzaili [2015] 3 MLJ 513, Justice Hishamudin wrote the unanimous opinion that section 66 of the Negri Sembilan Enactment which penalises men who dress like a woman, but does not impose similar punishment on women who dress like men, was a violation of the equality doctrine. Speech and association: In the Muhammmad Hilman Idham v. Kerajaan Malaysia [2011] 9 CLJ 50 Justices Hishamudin and Linton Albert J. held that section 15(5)(a) of the Universities and University Colleges Act, which forbade students from expressing any sympathy or support for any political party, was contrary to the Constitution’s guarantees in Article 10. The decision emphasized that parliament is not supreme, and the restrictions imposed on free speech must be confined to the restrictions enumerated in Article 10(2). There must be a rational and not a fanciful connection between the law and the object sought to be achieved. Secrecy: In a dissenting judgment relating to the Official Secrets Act and the secrecy of a water concession agreement, Justice Hishamudin disagreed with the majority that the Minister cannot be compelled to disclose the agreement and the audit report: Minister of Energy, Water and Communication & Anor v Malaysian Trade Union Congress & Ors [2013] 1 MLJ 61. Property: In Ismail Bakar & Ors v Director of Land and Mines, Kedah Darul Aman [2010] 9 CLJ 810, the delay of nine years to effect payment for a compulsory acquisition order rendered the order null and void. In Ee Chong Pang & Ors v The Land Administrator of the District of Alor Gajah & Anor [2013] 2 MLJ 16, the failure of the Malacca government to comply with the mandatory procedure of issuing Form A, invalidated the compulsory land acquisition order. In Syarikat Pengangkutan Kesejahteraan Sdn Bhd v Tenaga Nasional BHD [2010] 1 CLJ 625, the right to property under Article 13 was involved. There was an exercise of statutory power under the Electricity Supply act 1990 to enter the private land for installation purposes. However, notices required by the law were not addressed to the registered proprietor. There was no date for hearing and there was inadequate description of the land in the notice. No proper assessment inquiry was conducted. Compensation was not paid to the land owner but to a third party! However, TNB gained occupation of the plaintiff’s land. It was held that the defendant’s occupation of the disputed area was prima facie unlawful. The notices that were issued were defective. There was no proper assessment inquiry. As such, there was a violation of Article 13(1) of the Constitution which requires that no person shall be deprived of his property save in accordance with the law. The Defendant’s claim for restitution against the third party (that had received the compensation) could not be granted because the Defendant had not come to the court with clean hands.

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