KUALA LUMPUR: In 2001, Datuk Mohd Hishamudin Md Yunus, then a High Court judge, raised eyebrows when he freed two opposition party members held under the Internal Security Act (ISA) after allowing their habeas corpus application.

Abdul Ghani Haroon and N Gobalakrishnan of Parti Keadilan were freed on the basis that the evidence given by the police was vague and unsubstantiated.

Hishamudin said it was extremely rare for a person to succeed in such an application against an ISA detention order.

The ISA, which was drawn up in 1960 to combat communists during the Emergency years, was repealed in 2012.

“The abuse of the ISA as disclosed by the facts of the case compelled me to politely say in my judgment that it was high time for the Parliament to consider abolishing the law or at the very least to consider making amendments to eliminate or minimise the possibility of abuse,” he told The Malaysian Insider in an interview following his retirement from the bench on Sept 9.

His remark ruffled some feathers among the top echelons of the government, recalled Hishamudin.

“The then prime minister said that judges who ‘disliked’ the ISA should not hear such cases.

“The minister in charge of the administrative affairs of the judiciary (sadly, of all persons), himself a lawyer, issued a press statement that it was unusual for a judge to make such a comment.”

Tan Sri Rais Yatim was de facto law minister in the Prime Minister’s Department at the time, under Tun Dr Mahathir Mohamad, who was in power from 1981 to 2003.

But retired Supreme Court judge, the late Tan Sri Harun Hashim, came to Hishamudin’s defence, saying it was normal for judges in delivering judgments to suggest amendments to laws or that obsolete laws be abolished.

Hishamudin, who started as a magistrate in Kuala Lumpur in 1973 and served close to 23 years in the High Court and Court of Appeal, said he was alarmed by the attacks.

However, he also received accolades and letters of appreciation from people of all walks of life, including from serving judges and former judges.

“But rather touchingly, most of those who wrote to me were people I did not know and had never met,” said Hishamudin who has written close to 750 judgments in both courts.

His notable legal pronouncements include striking down as unconstitutional a provision in a Negeri Sembilan Islamic religious enactment that punished Muslim men who cross-dressed. That was in 2014.

Last month, he led a bench to rule that decisions of native courts in Sabah and Sarawak were subject to judicial review in the High Court. 

Law professor Datuk Dr Shad Saleem Faruqi from Universiti 

Teknologi Mara, in his column in the English daily The Star, said Hishamudin’s years on the bench were marked by integrity, fearless independence and unwavering commitment that the constitution was the supreme law of the land.

“He will be remembered with respect by all those who believe that the judiciary must balance the might of the state and rights of citizens,” the academic said.

Former Federal Court judge Datuk Seri Gopal Sri Ram said Hishamudin’s fearless integrity was demonstrated in the habeas corpus case as he was right for historical reasons to order prison officials to produce the two detainees in court. — The Malaysian Insider

This article first appeared in digitaledge Daily, on September 21, 2015.