Datuk Mohd Hishamudin Mohd Yunus has retired from the Bench, but his integrity, fearless independence and unwavering commitment to constitutional supremacy will be remembered.
STUDENTS of public law will note with sadness that Datuk Mohd Hishamudin Mohd Yunus (pic), who illuminated the judicial firmament for 23 years, retired from the Bench on Sept 9.
His years on the Bench were marked by integrity, fearless independence and an unwavering commitment to constitutional supremacy.
He 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.
Personal liberty: Perhaps the learned judge will be best remembered for his Abdul Ghani Haroon v IGP trilogy. 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 and literal interpretation of Article 5(2). It is submitted that if there is allegation of torture or custodial death, the only way to establish facts is to produce the detainee in court.
Second, 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; access to lawyer and family is denied; and there is unreasonableness and bad faith in police conduct.
Third, the police can be restrained from re-arresting the detainee immediately after release.
In another ISA case, Justice Hishamudin awarded detainee Abdul Malek Hussin RM2.5mil in damages for unlawful detention and assault.
All the above rulings ran counter to prevalent judicial subservience to executive perceptions of security and public order in preventive detention cases.
Equality: In Manoharan Malayalam (2013), 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), Justice Hishamudin penned the unanimous opinion that section 66 of the Negri Sembilan Enactment which penalises men who dress like women, but does not impose similar punishment on women who dress like men, was a violation of the equality doctrine.
Speech and association: In the Hilman case Justices Hishamudin and Linton Albert 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.
Secrecy: In a dissenting judgment relating to the Official Secrets Act and the secrecy of a water concession agreement, he disagreed with the majority that the minister cannot be compelled to disclose the agreement and the audit report: Menteri Tenaga v MTUC (2012).
Property: In Ismail Bakar (2010), the delay of nine years to effect payment for a compulsory acquisition order rendered the order null and void. In Ee Chong Pang (2013), the failure of the Malacca government to comply with the mandatory procedure of issuing Form A invalidated the compulsory land acquisition order.
Syariah courts: While acknowledging the jurisdiction of syariah courts in matters assigned exclusively to them by the Constitution, Justice Hishamudin broke rank with many superior court judges who, at the slightest whiff of Islamic law, surrender jurisdiction to the syariah courts. In Kadar Shah Tun Sulaiman (2008), he ruled that a trust, even between Muslims, was a matter within federal jurisdiction.
In Siti Hasnah Vangarama Abdullah (2012), a seven-year-old child born into a Hindu family was converted to Islam by Muslim religious authorities in Penang without the consent of her parents. On reaching maturity she challenged the constitutionality of her conversion.
A question arose whether the civil court or the syariah court had jurisdiction over the matter. Justice Hishamudin held that as fundamental rights under Articles 11 and 12 were involved, the civil High Court had exclusive jurisdiction.
Creative interpretation: In an erudite article in 2011, the learned judge openly supported judicial activism. And rightly so. Life is always larger than the law and the glittering generalities of the law cannot anticipate all the vicissitudes of life.
Justice and equity: In pursuing justice, Datuk Hishamudin occasionally unshackled himself from the doctrine of binding judicial precedent. In his dissenting judgment in Ishak Hj Shaari v PP (2011), he ruled that the Court of Appeal has inherent power to review its own previous decisions in order to prevent injustice.
In one case the learned judge invited Parliament to abolish or review he ISA “to prevent or minimise the abuses highlighted in (his) judgment”.
In several judgments, Justice Hishamudin did not hesitate to take lawyers or judges who strayed from the path of justice or propriety to task. In Raja Segaran (2008), he refused locus standi to a lawyer who wished to prevent the Bar Council from discussing the misconduct of the then Chief Justice. Though only a High Court judge then, he strongly disagreed with a Court of Appeal judgment to bar such discussion.
In Dato’ V. Kanagalingam v David Samuels (2006), a prominent lawyer made a RM100mil libel claim against the author of an article in a commercial magazine. In dismissing the claim, Justice Hishamudin referred to the lawyer’s wrongful conduct in the Ayer Molek case, which the Court of Appeal took note of. He held that a person cannot bring an action based on his own wrong.
He also had harsh words for the illegally constituted Federal Court quorum which ordered the Court of Appeal remarks to be expunged.
In sum, his judicial life was one of courage and conviction. He leaves behind large footprints and the legal community will miss him.
Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely his own.