‘ONE MUST CONSIDER THE SPIRIT OF THE LAW’

Under Art. 145(5), of the Federal Constitution, the A-G holds office ‘during the pleasure of the Yang di-Pertuan Agong’. This means he can, at any time, be removed by His Majesty on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet (by reason of Art. 40, His Majesty, generally, may only act on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet).

SHAILA KOSHY AND M. MAGESWARI, The Star

AFTER 42 years as a judge and an officer in Malaysia’s Judicial and Legal Service (JLS), Datuk Mohd Hishamudin Yunus, 66, is now a consultant with a legal firm and intends to venture into the world of commercial arbitration.

He grew up in the small railway town of Gemas, Negri Sembilan, which had a circuit magistrate’s court. Mohd Hishamudin’s late grandfather was a magistrate in Seremban and the young boy would go watch him when he came on circuit.

Upon completing Sixth Form at Malay College Kuala Kangsar in 1968, Mohd Hishamudin applied for a Federal Judicial Scholarship the next year to study law. He got it and went to London, since Malaysia did not have a law faculty at the time. He enrolled at the London School of Economics (University of London) for the LLB course and at Lincoln’s Inn for the Bar-at-Law course. After attending a few lectures, he says he “fell in love with the subject”.

He says that life and education in Britain, particularly as a student of law at the London School of Economics, had much influence in his life.

His legal career began in August 1973 when he became a magistrate at Bukit Mahkamah in Kuala Lumpur. He also did stints as a deputy registrar, deputy public prosecutor, assistant draftsman, federal counsel, and even a Syariah Appeal Court judge and a member of the Fatwa Council when he was legal adviser in Selangor. In May 2008, the International Bar Association Human Rights Institute chose him for a fact finding mission to South Africa on the independence of the judiciary there.

In October 1992, he became a Judicial Commissioner (JC) and two years later he was elevated as a High Court judge. He became a Court of Appeal judge in 2009, staying there until his retirement, achieving what he had set out to do: dispense justice without fear or favour. He did so for 23 years, and delivered several landmark judgments.

Mohd Hishamudin is married to Datin Siti Patimah Ahmad and has four children.

In an exclusive interview, he talks candidly about judicial activism, why civil court judges should not abdicate responsibility to the Syariah Court and how the Constitution needs to be amended to give the Attorney-General security of tenure.

General

How did LSE influence you?

It taught me to be critical in my thinking and original in my thoughts. Well I suppose you can say that it did teach me to look at the law from the eyes of the people. After all, the law is meant to serve society and to attain social justice.

What makes a judge decide to go beyond the letter of the law and rule that right to life includes the right to livelihood and the right to a clean and healthy environment?

Some of the views I have expressed in my judgments are based on precedents (local as well as from other jurisdictions) including the principle that the right to life includes the right to livelihood. Whilst on the one hand a judge must be cautious in relying on foreign precedents, yet on the other hand the Constitution should not be interpreted as if it is an ordinary statute. A Constitution should be construed with less rigidity and more generosity than other statutes (to quote a principle laid down by the Privy Council in the case of Minister of Home Affairs v Fisher [1980] AC 319). At times the interpretation of constitutional provisions calls for judicial activism in order to arrive at a just decision.

It is rare for a judge to invalidate a government agreement as you did in the 1994 Kerpan tiger prawn farming case (Kedah farmers whose lands had been acquired for prawn farming alleged the state government’s acquisition was unlawful).

Can you explain your ruling?

I decided the case as a JC at the High Court in Alor Star. I found the acquisition was unlawful due to non-compliance with the Land Acquisition Act by the state government.  Our Constitution provides that a person must not be deprived of his property except in accordance with the law. The farmers had a good lawyer, Mr Gurdial Singh Nijar.

Did you have any specific goals when you became a judge? Did you achieve them?

One of my goals was to make an effective contribution to the development of the Malaysian law to the best of my ability. Another objective was to dispense justice without fear or favour. I have tried my very best in serving the judiciary and the country, and, I think,  I am quite satisfied with what I have achieved so far in my almost 23 years on the bench. But, of course, it is better that other people do the judging.

Your decision in the transgender case last year – that criminalising cross-dressing for Muslims was an unreasonable restriction of a person’s freedom of expression – was nominated for the “Right on Track” award in the 2015 Aiyoh Watlah! awards.

How did you feel when you won?

That was the first time I heard of such an award! What a pleasant surprise. Of course I feel very delighted that the judgment was appreciated. But the credit must also go to the other two members of the panel, Justice Aziah Ali and Justice Lim Yee Lan. My sincere thanks to the judges of the Aiyoh Watlah! Awards.

In the transgender case, much of the debate in the public has been whether this is a medical or religious issue.

I accepted the reports by the medical experts (two psychiatrists, one psychologist and one sociologist). I don’t see any reason to doubt them. In any event, the Negeri Sembilan government did not offer any evidence to rebut the medical evidence of the expert offered by the plaintiffs. Besides the medical issue, the case also concerns constitutional law issues.

(Aiyoh … Wat Lah?! is an awards ceremony held annually since 2012 and organised by the Joint Action Group for Gender Equality to raise awareness of sexism, misogyny, homophobia, and transphobia in Malaysia.)

You wrote the unanimous decision. Would it have helped if three judgments were written, seeing as how split the population is? Then again, if everyone agrees on the law, is it necessary for individual judgments?

Originally I suggested that each member of the panel write a separate judgment. But the other two members of the panel suggested that I put up the draft judgment first. So I put up the draft judgment for their consideration. They read it and agreed with the draft with only minor amendments. So there was no necessity for individual judgments.

When you hear cases which have a huge religious aspect, does being Muslim impact on you in any way?

In this particular case, it did not. It must be appreciated that the Court was not called upon to question any principle of Islamic law. The Mufti of Negeri Sembilan gave an opinion that Muslim males are prohibited from dressing as females in public. In its judgment, the Court of Appeal did not question that opinion. We, however, did make a remark that the learned Mufti should have also given an opinion as to what is the position in Islam as to the appropriate dress code for male Muslim persons like the appellants who were sufferers of Gender Identity Disorder, an incurable medical condition. Judges are governed by their oath of office to uphold the Constitution. And the issue before the Court in this particular case was only this: whether section 66 of the Negeri Sembilan State Syariah Enactment offends the Federal Constitution. We decided that it did. That was the only legal issue that the Court decided on.

If you’re overturned?

This is a hypothetical question. The appeal is still pending before the Federal Court. We just wait and see.

If it’s upheld?

I’ll be delighted.

Being a Judge

You have been a legal officer in the state and Federal Government. As a judge, was it difficult to sit in judgment over their actions?

No, it was not difficult. On the contrary, my experience as a legal officer in Government (be it at the State or Federal level) in various capacities was an advantage when I became a judge, especially in hearing cases involving the Government. When I was a law officer in the Government, I would not side with the Government whenever the Government was in the wrong.

Whenever the Government had erred, I would advise the Government to concede to liability and to negotiate a settlement on the damages. In other words, I would give honest legal opinions without fear or favour, even when the Government was unhappy with the advice.

It is the same as when I became a judge. I decided each case on the merits and gave judgment accordingly, even if I had to rule against the Government. In quite a number of cases I had ruled against the Government.
What is the hardest thing about being a judge? Has trying cases become easier over the years?

I find nothing really hard being a Judge – except, perhaps, often struggling to find time to write grounds of judgments, especially when I was a High Court Judge. I enjoy hearing cases, sieving and evaluating evidence, and analysing the legal issues.

The law is my passion. My normal lifestyle easily fits into what is expected of the life of a judge. But judges must be given more time to write grounds of judgment so that they can write grounds of judgment of quality.

When I started, there was no case management, no preparing of witness statements by the parties, no court transcribers, and no video recording of what transpired during the proceedings. I had to personally write every word that the witness or counsel said, including what was said in examination-in-chief. I had to ensure that what was recorded was accurate.

Conducting a trial was tedious and time-consuming then. But today we have the case management system, witness statements, court transcribers who take down the notes of proceedings, and video recording of the proceedings. Life is now much easier for the judges. And trials are being conducted at a faster pace.

What areas of law do you feel passionately about?

Constitutional law, commercial arbitration, and English legal history.

Trangenders used to be a hidden community. Today they’re standing up and claiming their constitutional right to exist openly.  Is it important to look at the spirit of the law in developing constitutional law and rights?

I think it is universally accepted that the role of a judge is not to stick to the letter of the law, particularly in dealing with constitutional law issues. One must consider the spirit of the law.

Who can remove the Attorney-General? Can it be done without a tribunal being constituted to hear the charges?

Under Art. 145(5), of the Federal Constitution, the A-G holds office ‘during the pleasure of the Yang di-Pertuan Agong’. This means he can, at any time, be removed by His Majesty on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet (by reason of Art. 40, His Majesty, generally, may only act on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet).

By reason of Art. 132 (4)(b),  of the Federal Constitution, the A-G is not regarded to be a member of the public service (except for the purposes of Art. 136 and Art. 147). This means he is not protected by Art. 135 of the Federal Constitution (restriction on dismissal and reduction in rank of public officers).

Originally, the provision in the Federal Constitution on the appointment of the A-G was different. The Federal Constitution originally provided that the A-G must be a member of the JLS and he enjoyed a security of tenure in that he could only be removed in the like manner as a Supreme Court Judge.

But this protection was removed when the Federal Constitution was amended in 1963 to provide for the appointment of the A-G from among persons who need not necessarily be from the JLS.

I am of the view that the A-G due to the nature of his job must have a security of tenure. Thus there is a need to amend the Federal Constitution to confer security of tenure on the A-G.

Separation of Powers

Is there a clear separation of powers in Malaysia? Should judges take their cue on interpreting laws from the Executive or Parliament or the Constitution? Why?

The doctrine of separation of powers has its origin in the famous work of  the French cultural and political thinker, Baron de Montesquieu, namely, The Spirit of the Laws. According to this doctrine, in order to avoid any abuse of power, the government is divided into three branches, namely, the Legislature, the Executive and the Judiciary, with each branch having its own distinct function.

The function of the Legislature is to make laws. The function of the Executive is to carry out the laws. And the function of the Judiciary is to interpret and to enforce the laws. These three bodies are meant to check and balance each other.

Malaysia, like other modern democratic states, adopts the doctrine of separation of powers. Although the term ‘separation of powers’ is not found in the Federal Constitution, the concept, however, is entrenched in the provisions of the Constitution.

Following the British model, in Malaysia, the separation of the functions of the three branches of government, for practical reasons, is not a tight or a rigid one. There are some degree of overlapping. For instance, although legislation is a function of the Legislature/Parliament, yet many laws are made by the Executive in the form of rules, regulations and by-laws made by Ministers and statutory authorities under the system of delegated legislation.

The Judiciary too exercises limited legislative functions when it makes rules of procedure and when Judges make or develop the law through the judicial interpretation of the laws and judicial activism. The Executive also in some limited ways exercises judicial functions. For example, the Industrial Courts are not part of the Judiciary but rather a part of the Executive organisation. Yet they perform judicial functions.

In Malaysia (again following the British model) the separation of powers between the Legislature and the Executive is to some extent somewhat blurred by the fact that all Ministers (including Deputy Minister) (who are part of the Executive branch) have to be members of the Legislative branch, that is to say, Parliament (see Art. 43(2)(b) and Art. 43A(1) of the Federal Constitution).

The majority of the Ministers and Deputy Ministers are members of the Dewan Rakyat, whilst a few of them are members of the Dewan Negara. Since Independence, largely due to the system of ‘party discipline’, the practice appears to have evolved resulting in Parliament not being independent of the Executive but instead allows itself to be dominated by the latter. This is undesirable: for, then, Parliament is not performing its role in the manner as envisaged by the doctrine of the separation of powers.

On the separation of powers as a doctrine of constitutional law, there is a matter that needs to be said. The amendment to Art. 121(1) by Act A704 in 1988, followed 20 years later by the Federal Court case of PP v Kok Wah Kuan [2007] 6 CLJ 341, are disturbing developments as far as the doctrine of separation of powers and the concept of ‘judicial powers’ are concerned.

In this case, the Federal Court took the position that the doctrine of separation of powers is not a provision of the Malaysian Constitution; and that the judicial power of the judiciary is only to the extent as is conferred by the Legislature. However, with respect, I prefer the dissenting view as expressed by Justice Richard Malanjum CJSS in this case cited in that the 1988 amendment does not make the Superior Courts servile to, or mere agents of, the Federal Legislature; and that Art 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country (and he gave his reasons).

In the same case but at the Court of Appeal stage, Justice Gopal Sri Ram, in delivering the judgment of the Court, states the law correctly when he said that the doctrine of the separation of powers is very much an integral part of the Federal Constitution.

I hope one day Parliament will amend Art. 121(1) and restore the original provision. Pending that to happen, I hope the Federal Court will have the opportunity one day to revisit Art. 121, Clause (1), and to reconsider its view on the doctrine of the separation of powers and on the meaning of ‘judicial powers’. (PP v Kok Wah Kuan is the case of the child who killed his tuition teacher’s daughter)

In interpreting statutes it is permissible for a judge when dealing with an ambiguous provision to take the cue from external sources as extrinsic aids to interpretation. The judge may, for instance, take the cue from the Executive.

It is not permissible, for example, to take into account a Minister’s speech at a function on the meaning of the provision in question; all the more so if it is a political speech. But certainly it is permissible to refer to a report of a Governmental Committee or a Commission on the matter.

It is also permissible to refer to the Explanatory Statement in a Bill (but nowadays the Explanatory Statement is too general or vague to be of any help) or to the Minister’s speech in Parliament when moving the Bill, as reported in the Hansard. But the judge must always remember that these are mere aids and are not conclusive. The judge must always bear in mind that we are seeking the meaning of the words that Parliament used.

We are seeking not what Parliament meant but the true meaning of what Parliament said. But more importantly, when interpreting a statute a judge must always have the Federal Constitution and constitutional principles at the back of his mind: principles like right to property, equality before the law, the judicial powers of the Court and the doctrine of the separation of powers.

Landmark cases

Is there added stress when you write the grounds of judgment in a landmark case?

I won’t describe it as stress but I do feel the need to exercise extra caution and to do deeper research as such judgments would normally involve difficult (and sometimes novel) legal or constitutional issues; and such judgments invariably would involve a development of the law that would have far reaching implications.

I have already mentioned earlier two examples of judgments in landmark cases, namely, Muhamad Juzaili Mohd Khamis & 2 ors v. State  Government of Negeri Sembilan [2015] 1 CLJ 954 and Muhammad Hilman Idham & Others v. Kerajaan Malaysia and Others [2011] 9 CLJ 50.

Other examples are –
(a) Abdul Ghani Haroon v. Government of Malaysia [2001] 2 MLJ 689;
(b) Dato’ V. Kanagalingam v. David Samuels [2006] 3 CLJ 909;
(c) Raja Segaran S. Krishnan v. Malaysian Bar [2008] 5 CLJ 470
(d) Abdul Malek Hussin v. Borhan Hj. Daud and two others [2008] 1 CLJ 264;
(e) Tun Dato’ Sri Ahmad Fairuz Dato’ Sheikh Abdul Halim v. Commission of Enquiry on the Video Clip [2011] 3 MLJ 573;
(f) Menteri Tenaga, Air dan Komunikasi v. Malaysian Trade Union Congress [2012] 9 CLJ 858.

What do you reckon was your best judgment? Was it appealed?

I think it is the ‘transgender’ judgment (the case of Muhamad Juzaili). The judgment is about the right of transgenders to wear female dresses. It is about the validity of Section 66 of the Syariah Criminal Enactment 1992 of Negeri Sembilan. It is about fundamental rights of transgenders under the Federal Constitution. I chaired the Court of Appeal panel that ruled Section 66 was null and void as well as being in violation of several provisions of the Constitution pertaining to fundamental rights.

The State of Negeri Sembilan has obtained leave to appeal to the Federal Court, and the appeal is still pending.

The Judiciary

What is the most important foundation stone for a judiciary to mete justice in a democracy?

A truly independent judiciary.

In 1988, then Lord President Tun Salleh Abas, who was brought before a tribunal for misconduct, and the five Supreme Court judges that granted him an interim order against the tribunal, were either sacked or suspended. Today, in cases where the Government is a defendant/respondent or claimant, can judges still decide on the law alone or do you think some might find themselves thinking “I think this is what the Government wants me to do”?

The 1988 assault on our Judiciary was a judicial nightmare, a national tragedy. With respect, I hold the opinion that the then Rt. Honourable Lord President and the five Supreme Court Judges were innocent of the charges. The late Justice Wan Sulaiman and his panel of Supreme Court Judges must forever be remembered and commended for their courage and uprightness in upholding the rule of law and the independence of the judiciary; for which they paid a high price.

Yes, by now, after some 27 years since that dark episode, the Judiciary has probably recovered, but still to a very limited extent. The negative public perception against the Judiciary is still there. Indeed, as the late Tun Suffian (a former Lord President) had said many years ago in his speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that was unjustly dismissed in the assault of 1988) on 10 March 2000, ‘I had predicted that our judiciary would take a whole generation to recover from the assault. Now more than 12 years have lapsed. I doubt if the judiciary would recover in a generation from today’.

As to the second part of the question, I do not think it is fair for me to speculate what goes in the mind of judges. But allow me to say this: a judge is required by his oath of office to dispense justice in accordance with the law and the Constitution, and without fear or favour. Judgeship is a public trust. A judge must never betray that trust; no matter what. He must constantly be guided by the Latin maxim fiat justitia ruat caelum (let justice be done though the heavens fall). He must always be mindful that his judgment is subject to public scrutiny; and today we are in the era of the Internet, and in the era of a well-informed and critical society. A person must not accept the appointment as a Judge if he or she is timid and could not live up to his oath of office.

Do you think civil court judges have the jurisdiction to try disputes having Syariah elements (e.g. An application to get the Registration Department to effect a change in name and religion to reflect conversion out of Islam or a challenge against the unilateral conversion of a child to Islam by one parent)?
Where the issue involves the interpretation of the Federal Constitution or it involves the civil law the civil court judge has the jurisdiction and, indeed, must hear the case. It is outside the jurisdiction of the Syariah Court to interpret the Constitution or to determine the interpretation of a non-Syariah legislation, or to determine a non-Syariah legal issue.

How should a judge deal with such cases? Abdicate responsibility to the Syariah courts? Hear them with the assistance of Syariah experts?

Of course, the civil court judge must hear the case. It would be wrong for the judge to pass the matter to the Syariah Court. If the need arises, he can hear the case with the assistance of a Syariah expert. But the Syariah expert has to come by way of an expert witness. This is provided for in Order 40 of the Rules of Court 2012 and by section 45 of the Evidence Act 1950.

There was talk once of having syariah judges sit together with civil court judges to advise them? Would that work or would you rather have them as witnesses?
I would rather have them as witnesses.

Who would you decide is the expert  if you had to choose between the Perlis mufti or the Perak mufti?

This is a hypothetical question.

Do you think there are judges who are influenced by their political or religious leanings?

I do not think it would be fair for me to speculate here. All I can say is that a judge must not decide a case in accordance with his religious or political leanings.

That would not be an honest decision. That would not be a lawful decision. For, in deciding a case, a judge must do so strictly in accordance with the merits of the case, in accordance with the law and the Constitution. He must decline to hear a case if he thinks that his political and religious leanings, rather than the law, is going to influence him in making a decision.

Do you think dissenting judgments are good?

As a Judge of the Court of Appeal, I have dissented in quite a number of cases. It is not a question of whether they are good or bad. It is the moral and constitutional duty of a judge to dissent if he strongly feels that he does not agree with the majority decision.

He has no option. It would be dishonest of him if he were to just go along with the majority decision, in spite of his conviction, just for the sake of convenience or expediency. A judge must have the courage to dissent when it is expected of him to do so.

He owes it to his oath of office and to the litigants before him to dissent; particularly, the litigant in whose favour his dissenting judgment would have been, had he taken the initiative to deliver his dissenting judgment. The existence of dissenting judgments is one of the hallmarks of an independent judiciary.

Do you know why you were left in the High Court for so long before you were elevated to the Court of Appeal and why you were not promoted to the Federal Court although you are more than capable?

I was not told why I was left in the High Court for so long before being elevated to the Court of Appeal. But with regard to my non-promotion to the Federal Court, I was reliably informed that in early 2013 my name was recommended by the Judicial Appointments Commission to the Rt. Hon. Prime Minister but the latter was not in favour of my elevation to the Federal Court.

What are your plans for retirement?

I am now a consultant with a legal firm. Besides being a consultant, I also intend to venture into the world of commercial arbitration.

Legal Profession

Do you think law schools here and overseas are producing competent advocates for Malaysian courts? What is your advice for aspiring lawyers?

I am afraid, judging from their performance before me at the Court of Appeal, my answer will have to be in the negative. I think merely being called to the Bar is not sufficient. We need to establish a law academy for those graduates aspiring to be advocates where they have to undergo a compulsory course and pass an examination on advocacy, before being allowed to appear as advocates before the courts.

My advice for aspiring lawyers is that always be bold and articulate in presenting your client’s case; do not easily feel intimidated, no matter how intimidating or difficult you find the judge to be. Always uphold the ethics of the profession. Do not be disheartened if you lose cases; for, nobody becomes a good advocate overnight. You learn and improve from experience and from your mistakes.

Always read and keep abreast with the current development of the law. As a lawyer, particularly, a litigation lawyer, the learning process never ends.

You believe a law academy would produce better quality lawyers?

Yes. The course at the law academy should, perhaps, be a minimum of one year. Of course, there has to be a deeper study into this proposal. Retired judges, practising lawyers and academics could be employed to lecture at the law academy.

Would the Bar Council’s proposed CBC – which is supposed to provide a single entry vocational training course before admission to the legal profession –  help improve advocacy standards?

I am afraid I am not familiar with the proposed CBC.