This article first appeared in The Edge Malaysia Weekly on March 13, 2023 - March 19, 2023
LAST December, Negeri Sembilan Yang di-Pertuan Besar Tuanku Muhriz Tuanku Munawir officiated the launch of Upholding The Federal Constitution: The Judicial Thoughts of Dato’ Seri Hishamudin Yunus, a book discussing key decisions by the retired Court of Appeal judge, who is now a consultant with law firm Rosli Dahlan Saravana Partnership.
Hishamudin, 73, retired in 2015, and while in the judiciary, delivered 750 judgements, a number of which were groundbreaking. The erudite legal eagle was a Suhakam commissioner and member of the Judicial Appointments Commission.
The Edge catches up with Hishamudin, who shares his views on several issues, particularly those relating to the law and the Federal Constitution. The following are excerpts from the interview.
The Edge: Chief Justice Tun Tengku Maimun Tuan Mat said last September during the reference on former Lord President Allahyarham Tun Salleh Abas that judges must be faithful to the Federal Constitution and uphold the rule of law. What are the challenges faced by today’s judges?
Hishamudin: I would say the need for judges to be courageous and to embrace judicial activism is one of the challenges. To explain in simple terms, ‘judicial activism’ is a term that describes a judicial decision that is creative, that breathes life into the law; a decision that involves inductive reasoning, that is positive and takes into account the social needs of the time, while at the same time paying heed to the principles of justice and the legal and constitutional framework within which that decision is made.
Indeed, I would say judicial activism is as old as the common law.
Unfortunately, some judges are against judicial activism, and they say so in their judgements. With respect, this (is) a wrong attitude to take. I think it is a fair statement to say that, today, the judiciary, in whichever common law jurisdiction, subscribes to judicial activism; only that the degree of judicial activism may differ from one jurisdiction to another. Judicial activism, say, in the UK, may not be the same as, say, in India. But, today, judicial activism is a reality. It is generally accepted today that judicial activism is a legitimate exercise of judicial function. It is recognised as being part and parcel of the role of the judiciary, which is co-equal with the other two arms of government, namely the legislature and the executive; and as being essential to good governance and the system of checks and balances.
A good example where our Federal Court has embraced judicial activism is the enunciation of the principle of the doctrine of basic structure by the Federal Court. The doctrine of the basic structure of the Federal Constitution has been affirmed time and time again in landmark cases such as Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526, Indira Gandhi v Pengarah Jabatan Agama Islam Perak [2018] 3 CLJ 145 and Alma Nudo v PP [2019] 5 CLJ 780. The basic structure doctrine is the constitutional principle that the basic features or basic structure of a constitution cannot be destroyed or emasculated by a constitutional amendment duly passed by parliament in accordance with prescribed procedures. This doctrine is declared by the Federal Court to be embedded in Art 4(1) of the Federal Constitution.
The doctrine of basic structure to our Federal Constitution has been unequivocally reaffirmed very recently by a unanimous judgement of the Federal Court in Dhinesh Tanaphll v Lembaga Pencegah Jenayah [2022] 5 CLJ 1.
Another challenge, I think, is this. Among some Muslim judges, at times they have to face a situation of conflict, a predicament, by reason of the facts of the case before them involving an Islamic law element that conflicts with the Federal Constitution. On the one hand, being Muslims, should they uphold Islamic principles? Or, on the other hand, being judges, should they uphold the Federal Constitution in accordance with their oath of office?
When faced with such a predicament, the Muslim judges (again, I am only referring to some of them) tend to uphold Islamic principles instead of the Federal Constitution; or, they would refer the dispute to the shariah courts to be dealt with by the latter.
I am of the view that in such a situation, Muslim judges must not abdicate their judicial responsibility to hear the case and to uphold the Federal Constitution, as on the day of appointment, they took an oath to uphold the Federal Constitution and not Islamic law. Although under Art 3, clause (1) of the Federal Constitution, Islam is the religion of the Federation, yet under Art 3, clause (4), it is stipulated that the practice of Islam in this country is subject to the provisions of the Federal Constitution, meaning that, where there is a conflict between the provision of an Islamic enactment and the provision of the Federal Constitution, the provision of the Federal Constitution prevails. If Muslim judges are not prepared to accept this constitutional principle, then they should not have accepted the appointment to be judges.
Some people say that in normal cases, possibly justice would be dispensed fairly but if it involves politically charged cases, judges may be under further pressure in making the decision? Did you face that situation when you were a judge sitting in the landmark Abdul Ghani Haroon and N Gobalakrishnan case or other cases?
I am afraid I cannot speak for other judges — of what goes in their minds when they decide cases. I can only speak for myself. But I must stress here that any person who is not prepared to be judicially independent in politically charged cases must not accept the appointment to be a judge in the first place.
Judgeship is a public trust. This trust must constantly be upheld. A judge must not be afraid to do what the constitution, the law and his conscience tell him to do. Self-interest must be put aside. The judge has taken an oath to uphold justice and the Federal Constitution. If he cannot do this, then he must tender his resignation. This is the only decent thing to do. No two ways about it.
If, by ‘pressure’, you mean ‘external pressure’, I have to say that throughout my career on the bench either as a lower court judge (that is, as a magistrate or Sessions Court judge) or as superior court judge (High Court or Court of Appeal judge), I have never been directed or advised by any ‘superior authority’ as to the manner on how to deal or decide with any particular case. Nor have I ever been reprimanded by any superior authority for deciding against the government.
Having said that, since you mentioned the Abdul Ghani Haroon and N Gobalakrishnan case, I will now elaborate a little on this case. It was a unique judicial experience for me.
The habeas corpus decision was made on Friday, May 31, 2001, at the High Court of Shah Alam. It was the habeas corpus applications of Abdul Ghani Haroon and Gobalakrishnan, who were two members of Parti Keadilan. I granted their applications for their freedom from detention under the Internal Security Act. On the vague and unsubstantiated affidavit evidence adduced by the police, I was convinced that they were innocent of the charges. But it was extremely rare then for any person to succeed in a habeas corpus application against an ISA detention order. Indeed, a few of those arrested and detained under the ISA (together with Abdul Ghani Haroon and Gobalakrishnan) had applied for habeas corpus at the High Court of Kuala Lumpur, but their applications were dismissed.
I read out my 28-page judgement at 9.30am that Friday morning. There were not many people in the public gallery of the court; probably because many were expecting the ‘usual’ decision, that is to say, the habeas corpus applications would just be dismissed by the court. After having read out the judgement, which was in favour of the two applicants, I ordered that they be produced before the court in the afternoon at 3.30pm the same day to enable me to make the formal order for their release pursuant to Art 5 of the Federal Constitution.
Come 3.30pm, there were many police personnel in court, both in uniform and in plain clothes, the latter I believed to be members of the Special Branch. By now, word of the impending release had spread and the public gallery of the court this time was packed. There was then the fear that the two applicants would be rearrested the very moment they were to step out of the court premises. Thus, upon the application of their counsel, Malek Imtiaz Sarwar, I also made an ancillary order that the two persons not be rearrested upon stepping out of the courtroom. The police complied with the order and the two applicants were never rearrested thereafter.
The abuse of the ISA as disclosed by the facts of the case compelled me to politely say in my judgement that it was high time for parliament to consider abolishing the ISA or, at the very least, to consider amending the ISA, to eliminate or minimise the possibility of abuse.
The Attorney General appealed to the Federal Court, but withdrew the appeal two weeks before it was scheduled to be heard. Hence, the AG’s appeal was dismissed and my decision affirmed.
For that High Court ISA decision, I received accolades and letters of appreciation from people from all walks of life; from serving judges and former judges. But, rather touchingly, most who wrote to me were people whom I did not know and had never met. I was touched.
I did not suffer any repercussions as a result of that ISA decision in the sense of a ticking-off from my superior or earning an immediate transfer out of the Shah Alam High Court. The question of being bypassed then did not arise as at that time there were many senior judges above me.
But the remark that I had made in my judgement suggesting that the ISA be abolished or amended so as to avoid abuses, unfortunately, had ruffled some feathers on the political front. The minister in charge of the administrative affairs of the judiciary (sadly, of all persons!), himself a lawyer, stated in a media statement that it was ‘unusual’ for a judge to make such a comment. A deputy minister said in the news on TV3 that it was inappropriate for me (he specifically mentioned my name) as a High Court judge to have made such a suggestion. The then prime minister in a media statement said that judges who ‘disliked’ the ISA should not hear ISA cases. The prime minister was careful not to mention my name or the case; but I knew it was an oblique reference to me and the ISA case.
I was alarmed by these criticisms. I never had such an experience before. But a retired Supreme Court judge, the late Tan Sri Harun Hashim, came to my defence and said what was rightly needed to be said: that it was normal for judges in delivering judgements to suggest the abolishment of obsolete laws or to suggest amendments to the laws.
How long did it take to come out with this latest book?
About a year. This book is published by my firm, Rosli Dahlan Saranava Partnership. It was edited by one of the partners, Mr Saravana Kumar, whose enthusiasm and untiring efforts brought this book project into fruition. The book comprises critical commentaries by partners and associates of the firm focusing on the judgements on fundamental liberties and the Federal Constitution that I made throughout the 23 years I was on the bench.
What is your advice to today’s judges and politicians in upholding the Federal Constitution?
The Federal Constitution is the very philosophical and political foundation upon which our nation is built. It is also the basic law of the country. Judges and members of parliament have taken the oath upon taking office to uphold the Federal Constitution. They must honour their oath of office and uphold the Federal Constitution. On no account must they betray this trust.
Should the Federal Constitution be taught as a subject in schools and, if so, when should it start or be taught?
Yes, certainly, the Federal Constitution should be taught in schools. We can begin teaching the pupils even as early as when they are in primary school (but perhaps in the later years of primary schooling), especially on the fundamental liberties. The part of the Federal Constitution dealing with the system of government can be taught later at the secondary-school level. The Federal Constitution should be made a compulsory subject.
Do judges face challenges in upholding the constitution? Can you give some examples of those cases, the rightly decided and the wrongly decided?
I have already answered this question in question 1 above on some of the challenges. In terms of upholding the Federal Constitution, recent judgements of the Federal Court must be commended. For example, in Dhinesh Tanaphll, Justice Datuk Nallini Pathmanathan, delivering the judgement of the Federal Court, explains succinctly the vital role of the judiciary in upholding the supremacy of the Federal Constitution.
Significantly, the Federal Court in that case takes pains to declare that judicial power takes its source and ambit from Art 4(1) of the Federal Constitution read in conjunction with Art 121(1).
I must add that having so held, the Federal Court declared ouster clauses, such as section 15B of the Prevention of Crime Act 1959 (POCA), as being unconstitutional as they undermine the judicial power of the judiciary. Hence, such ouster clauses are inconsistent with Art 4(1) of the Constitution. Such a decision is timely as our legislation is, unfortunately, littered with ouster clauses.
The doctrine of the basic structure of the Federal Constitution has been affirmed time and time again in the three landmark cases I mentioned in question 1.
These three cases that I just mentioned make it clear that Art 121(1) of the constitution, as it stands, does not abrogate nor reduce judicial power to that conferred by or under federal law; notwithstanding the unfortunate attempt by parliament in 1988 to emasculate the judiciary, by amending the original Art 121(1) vide the Constitutional (Amendment) Act 1988.
Yet, unfortunately, some doubts have been cast over the applicability of the doctrine of basic structure in certain Federal Court cases like Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 2 CLJ 579, Goh Leong Yong v ASP Khairol Fairoz Rodzuan [2021] 8 CLJ 331 and Zaidi Kanapiah v ASP Khairol Fairoz Rodzuan [2021] 5 CLJ 581. However, it is a great relief that the applicability of the doctrine of basic structure to our Federal Constitution has been unequivocally reaffirmed very recently by the unanimous judgement of the Federal Court in Dhinesh Tanaphll.
Having said the above, I feel compelled to critically comment on one Federal Court case as I feel that the majority judgements in that case were against the Constitution and had resulted in serious injustice to a Muslim family. I associate myself with the dissenting judgements (that is, the minority judgements).
The case concerned is Jabatan Pendaftaran Negara v Seorang Kanak-Kanak [2020] 4 CLJ 731. It was a split judgement of four judges (majority) against three (minority/dissenting). With respect, I am of the opinion that the minority judgements are right in law that the father of a child should be permitted to have the child named ‘bin’ after him, instead of ‘bin Abdullah’ as insisted by the National Registration Department. The National Registration Department was following the Johore Islamic Fatwa merely by reason of the fact that the child was born less than six qamariah months after the marriage of the parents and that Muslim law deems the child illegitimate. According to the minority judgements — and correctly — the National Registration Department had no jurisdiction to apply Islamic law as far as the registration of births and deaths was concerned in the context of Item 12(a) of the Federal List of the Federal Constitution. The registration of births and deaths is a subject matter falling exclusively within the Federal List.
In today’s world, where fundamental liberties and human rights are at stake, and when the state enforces new laws such as that against fake news to curb social media abuses, how does the AG’s Chambers or government hold the balance in enforcing the laws?
The attorney general as the guardian of public conscience must ensure that laws to be enacted by the government are in accord with fundamental liberties and human rights. The AG must be independent-minded, fair and firm in discharging his powers and duties. He must scrutinise with care any proposed legislation intending to restrict fundamental liberties or that might (directly or indirectly) impact on fundamental liberties. It is true that the government, through parliament, may enact laws to restrict fundamental liberties (for example, freedom of speech) on certain permissible grounds, such as for the purpose of protecting public order or public morality. However, the AG must ensure that such laws do not render the fundamental liberties (guaranteed by the Federal Constitution) illusory. Such proposed restrictions, if enacted, may render such fundamental liberties illusory if they are widely worded or are disproportionate to the mischief that the law intended to address. For example, the Anti-Fake News Act 2018. It was a big relief that the Act was repealed when the Pakatan Harapan government came into power in 2018.
On the issue of enforcement, the AG being the public prosecutor and guardian of public interest is entrusted by the Federal Constitution to ensure that the rule of law is fairly enforced; and that the principle that everyone is equal before law is strictly observed. He must carry out his constitutional functions without fear or favour; and in such manner as not to be perceived to be partial or to practise selective prosecutions.
As for those who make hate speeches raising religious and racial issues, stern action must be taken against them, no matter who they are, for the sake of public order and racial harmony. Further, on the issue of enforcement and selective prosecution, take the SRC (International Sdn Bhd) case, for example.
The complaints in respect of the SRC and the RM42 million that was embezzled were made against (former prime minister) Datuk Seri Najib Razak way before 2018. Yet, he was not prosecuted. It was only after the Pakatan Harapan government came into power in 2018 and a new AG was appointed that Najib was charged for the SRC offences. His conviction and sentence imposed by the High Court were confirmed by the Court of Appeal (a panel of three judges) and the Federal Court (a panel of five judges, chaired by the Chief Justice).
Do our enforcement departments understand the Federal Constitution and do you think if it is taught, it may limit the number of deaths in custody cases and others?
The way detainees are treated at detention centres and police stations in some cases gives me the impression that our enforcement officers are not well trained in fundamental liberties, human rights and ethics. I do believe that if they are well trained on the Federal Constitution and human rights, and made to understand that detainees are human beings just like them and their families, and need to be treated as human beings who have their dignity, there will be fewer instances of custodial deaths and complaints of ill-treatment of detainees.
There must be constant oversight by superior officers and stern action must be taken against the officers who violate the rules. In this regard, where it concerns the police force, I am of the conviction that the country needs a law such as the proposed Independent Police Complaints and Misconduct Commission (IPCMC) Act, and nothing less.
As MyCC (Malaysia Competition Commission) chairman and it being a statutory body that is less than 15 years, what are the challenges faced in competition law?
The Competition Commission Act and the Competition Act were both passed by parliament only in 2010. Make no mistake, the commission is an enforcement agency. We enforce the Competition Act.
We need to make citizens aware that competition law prohibits unhealthy business practices among enterprises; unhealthy practices that are detrimental to the interest of the consumers, like price fixing or market sharing agreements (sometimes referred to as ‘cartels’), bid rigging and abuse of dominant position in business.
We are still a small enforcement agency with a staff population of 70, out of which only about 30-plus are enforcement officers. But the number of cases that we have to deal with, particularly, cases of bid rigging (currently about 500), are overwhelming in comparison with the number of staff such that we have to prioritise our enforcement functions.
Currently, the commission is in the process of amending the Competition Act and the Competition Commission Act so as to confer on the commission the power to regulate mergers and acquisitions. We hope to table the bills by the end of this year.
Among the many cases that you presided over as a High Court (HC) and Court of Appeal (CA) judge, which would you rank as among the top five in terms of impact on jurisprudence, the law and the Federal Constitution?
The five cases that I can think of are the following:
• Abdul Ghani Haroon and Gobalakrishnan v The Inspector-General of Police (2001) (HC) — the ISA case and fundamental liberties;
• Mohamad Juzaili and Others v The Majlis Agama Islam NS and the Government of Negeri Sembilan (2015) (CA) — the transgender case on fundamental liberties, the right of transgender persons to cross-dress under the Negeri Sembilan Islamic Law Enactment;
• Muhammad Hilman Idham and Others v Universiti Kebangsaan Malaysia (2011) (CA) — (the four UKM students’ case concerning freedom of speech of students under the Universities and University Colleges Act);
• Dato’ V Kanagalingam v David Samuel and Others (2006) (HC) — The case is related to the infamous Ayer Molek case and violation of the Federal Constitution by the then Chief Justice in appointing the Federal Court panel of three judges to hear the appeal in Ayer Molek;
• Tun Dato’ Seri Ahmad Fairuz Dato’ Sheikh Abdul Halim v Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges under the Commission of Enquiry Act 1950 (2011) (CA, my dissenting judgement that was subsequently upheld by the Federal Court) — This case concerned the video clip recording of an inappropriate conversation between a senior judge and a lawyer that led to the setting up of a Royal Commission of Inquiry; and on the issue of whether the findings of a Royal Commission of Inquiry are amenable to judicial review.
As a former member of the Judicial Appointments Commission (JAC), what are your views on the Conference of Rulers’ proposal that the PM plays no role in appointing JAC members?
I associate myself with the views as expressed by the Conference of Rulers, in particular, by His Royal Highness Tuanku Muhriz, the Yang di-Pertuan Besar of Negeri Sembilan.
The JAC was established in 2009 by an Act of Parliament, namely the Judicial Appointments Commission Act 2009. Credit must go to the then Prime Minister Tun Abdullah Ahmad Badawi, for the passing of this Act. From the testimonies gathered, the Royal Commission of Inquiry made a startling discovery: that elements of political patronage were involved in the appointments and promotions of judges; and this is detrimental to the judiciary.
Now, the JAC comprises nine members; that is to say, firstly, the four top judges who are automatically members by virtue of their respective offices, namely the Chief Justice (who chairs the commission); the President of the Court of Appeal; the Chief Judge of Malaya and the Chief Judge of Sabah and Sarawak. These four top judges are automatically members of the JAC by virtue of their respective offices.
In addition, there are five members appointed by the PM, one of whom is a Federal Court judge and the rest are ‘four eminent persons’. The role of the JAC is to nominate names of suitable candidates to the prime minister to be appointed as superior court judges.
It is important to appreciate here that the role of the JAC is only to nominate or recommend names: The JAC does not appoint judges.
The following are my reform proposals for the JAC:
• Essential provisions in the JAC Act should be incorporated into the Federal Constitution.
In my view, ideally, the main provisions of the JAC Act and the mechanism of appointment of superior court judges should have been incorporated into the Federal Constitution.
• Appointment by the prime minister
The appointments should be through open competition. In other words, they are not directly appointed by the executive.
• Appointed commissioners may be removed at any time without reason
Under our JAC Act, the prime minister may at any time terminate the appointment of an appointed commissioner without giving any reason. Whereas, in the UK, it is not that easy to remove a commissioner appointed through open competition as the UK government may recommend to His Majesty the King to remove a commissioner — but only for certain specified reasons.
• Composition of the JAC: Judge-heavy and lacking in diversity
The membership should be expanded to have more members; say, for example, 15. There should be members to represent the Bar and academia and the attorneys general (including that of Sabah and Sarawak). There should also be lay members appointed and the membership should represent the diverse nature of Malaysian society: multiracial, multicultural and multireligious.
• Prime minister is not obliged to accept the nominated candidate
It has been proposed that the JAC (instead of the PM) recommend the names directly to the Conference of Rulers (for their views) and thereafter directly to the Yang di-Pertuan Agong.
Some have been calling for the separation of powers of the attorney general and the public prosecutor. What are the challenges that the country will face if this is done?
It would be a good move to remove prosecutorial powers from the attorney general. The current constitutional role of the AG is spelt out in Art 145 of the Federal Constitution. He is the legal adviser to the government and represents the government in court proceedings. He drafts laws for the government, like government bills for tabling in parliament.
In Malaysia, the AG is also the public prosecutor. He conducts prosecutions in court and decides if a person alleged to have committed a crime ought to be prosecuted.
The AG is the guardian of public interest, and is expected to uphold the rule of law.
As a legal adviser to the government, the AG must not be involved with issues of government policy. His role is merely to advise the government on the legal aspects of the policies or proposed policies. He should refrain from engaging in political debates and must be neutral in relation to party politics.
In his role as the public prosecutor, the AG is bound by the principle that any decision to prosecute should be made by him alone, independent of political considerations.
Regarding the role of the AG, legal developments have taken place in several Commonwealth countries. In England and Wales, Canada, Australia and New Zealand, the position is that, by statute or by convention, the AG ceases to exercise the powers of prosecution. Such powers are now vested in the director of public prosecutions, who exercises these powers independently of the AG.
Malaysia should be moving in a similar direction so that there will be greater confidence in the criminal justice system. It will remove suspicion or perception of political interference with regard to the AG’s prosecutorial function. It is also good for the office of the AG for he can concentrate on his other functions as a legal adviser and counsel to the government, without being burdened with matters pertaining to prosecution; or having to deal with public suspicion or allegation of political biasness in criminal matters.
In order to create the office of the deputy public prosecutor (DPP), the government has to amend the Federal Constitution to redefine the functions of the AG, and to establish the separate office of the DPP. For this amendment to be passed, the government must have the support of two-thirds majority in parliament.
When I interviewed you while I was still with Malaysiakini, you mentioned that Datuk Seri Najib Razak had once halted your elevation to the Federal Court, and now that he is serving a jail sentence and still facing multiple charges, how do you feel about it?
Regarding the episode when Najib blocked my elevation to the Federal Court, despite my nomination by the JAC, I have put all that behind me. I will treat his conviction and jail sentence of 12 years over the SRC case as a separate issue. The courts right up to the Federal Court have affirmed his conviction and sentence. He had been accorded a fair trial. Everyone is equal before the law and the rule of law must prevail. He committed the grave crimes and must face the legal and judicial consequences. Let this case be a lesson to all who yield great powers.
How do you foresee our judiciary? Will it return to the glory days of the pre-Tun Salleh Abas era?
I am optimistic that with strong public awareness of the importance of an independent judiciary and fundamental liberties, and the very recent change in the political landscape of our nation, things will change for the better for the judiciary.
I am confident that the new leadership in the judiciary, with the Right Honourable Chief Justice Tun Tengku Maimun Tuan Mat at the helm, will restore public confidence in the administration of justice in this country; and that the judiciary will function in a better environment than before.
Indeed, there are already a number of seminal pronouncements by the federal court such as the doctrine of basic structure, the doctrine of the separation of powers, upholding fundamental liberties, the unconstitutionality of ouster clauses, judicial independence and the judiciary’s power of judicial review. All these judgements bring about a much-needed breath of fresh air. They must be applauded and celebrated.
These developments are significant as they bring life and meaning to the citizens’ expectation of justice, and are in accord with the rule of law and the spirit of the Federal Constitution. They are manifestations of judicial activism by enlightened and courageous judges. I heartily commend the Chief Justice and the Federal Court judges in these cases for upholding justice and the Federal Constitution. I earnestly hope that these developments will inspire all judges and lawyers to uphold our Federal Constitution without fear or favour.
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