Justice Hishamudin Mohd Yunus: Different, Courageous and Very Refreshing

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Kim Quek

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The Case Before the Court:
Abdul Malek Hussin was arrested by the police under the dreaded Internal Security Act (ISA) in Sept 1998 in the tumultuous days of Reformasi (reform movement) following the sacking and imprisonment of former deputy prime minister Anwar Ibrahim. During the 57 days of detention, Malek was subjected to - - “vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment”, and completely deprived of legal counsel.

In March 1999, Malek filed a civil suit, citing a police special branch officer Borhan Daud, the then Inspector General of Police Rahim Noor, and the Government as correspondents.

For the first time in history, a Malaysian judge heavily punished the Government for gross abuse of its draconian law – the first big slap on the face of the Executive.

High Court Judge Hishamudin Mohd Yunus ruled on Oct 18 that the State has violated the Constitution. He (then) awarded political detainee Abdul Malek Hussin RM 2.5 million in total compensation.

In his judgment, Hishamudin found NO evidence of Malek posing any threat to national security but every indication that the detention and torture was politically motivated arising from Malek’s support to Anwar Ibrahim and his reform movement. As such, Malek’s detention was unlawful, and a violation of his constitution right under Article 5(3).

In hard hitting language, the judge described the defendents’ behaviour as “inhuman, cruel and despicable”.

He awarded an exemplary damage of RM 1.0 million “to show the abhorrence of the court of the gross abuse of an awesome power under the Internal Securtiy Act, and to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely.”

In his 41-page judgment, Hishamudin pin-pointed several police officers for breaching the law and concocting evidence.

He also expressed displeasure at the Deputy Public Prosecutor for having implicitly colluded with police officers in thwarting Malek’s complaints.

Justice Hishamudin

In the present judgment, Hishamudin’s courageous and righteous act has undoubtedly brought cheers to a nation long dismayed by unrelenting decline in judicial integrity and most recently shocked by the stunning revelation of the Lingam video clip.

Justice Hishamudin is no stranger to human rights watchers, who have been impressed by his consistent record in delivering independent and impartial judgment - a remarkable feat in a judiciary perceived to often bend to the wishes of the high and mighty, in scant regards to the Constitution.

His most notable judgment is perhaps his decision in May 2001 to free two Reformasi activists – N. Gobalakrishnan and Abdul Ghani Haroon – arrested under ISA at the height of repression against the Reformasi movement under former autocrat Mahathir Mohamad.

The Disgraceful Judicial System of Promotion

Contrast the fortunes between Justice Hishamudin and Justice Augustine Paul (of the infamous Anwar trial fame).

While Paul, newly promoted to high court judge to handle the Anwar case in 1998, had leapfrogged to the nation’s highest court (Federal Court) by 2005, Hishamudin has remained stagnant as a high court judge since 1995, despite his illustrious judicial record.

Another example is Court of Appeal judge Gopal Sri Ram, the most senior judge who has made Malaysians proud for his many impartial and courageous judgments, has been by-passed for promotion to the Federal Court 14 times by his juniors since his direct appointment to the Court of Appeal in 1994. Some of these promoted on the express train had stayed in the Court of Appeal for only one year, notably those who were seen to have “delivered”.

The moral of the story in our judiciary is obvious: fortune only smiles on those who are obedient and submissive, but woe to those who are steadfastly principled. Under such a system, is there any wonder why our judiciary has been traveling on a downward slippery way?

While our spirit is buoyed by the Hishamudin judgment, we must temper our joy with the realization that the likes of Hishamudin and Sri Ram are rare gems that numerically could not influence the course of our judiciary. As they say, one swallow does not a summer make. Judicial reform is a long journey, and we haven’t even started yet.

The Hishamudin judgment has already opened our eyes to the immense benefits that a just judiciary can bring to the nation.

Imagine our courts are filled mostly with judges of Hishamudin’s integrity – from high courts to court of appeal to federal court – and led by a chief justice of impeccable honesty and competence, wouldn’t that be the best deterrent against the rampant breeding of corruption and abuse of power that is raging in every strata and section of our government – the cabinet, judiciary, attorney general’s chambers, police, government departments, anti-corruption agency, election commission, statutory bodies and GLCs (government linked corporations)?

In fact, a competent judiciary can act as a powerful agent to cleanse our political and administrative systems of corruption.