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Saturday October 20, 2007

A judge of the big events

By SHAHANAAZ HABIB

High Court Judge Justice Datuk Mohd Hishamudin Mohd Yunus made an unprecedented ruling on Thursday by awarding RM2.5mil to Abdul Malek Hussin, an ex-ISA detainee, for having been wrongfully detained by the police. This is not the first time his judgment has got people talking.

HE IS no new kid on the block.

High Court judge Justice Datuk Mohd Hishamudin Mohd Yunus who on Thursday awarded an unprecedented RM2.5mil in damages to an ex-ISA detainee for having been unlawfully arrested and beaten up is certainly one of those judges people take notice of.

For one thing, he has presided over a number of high profile and interesting cases.

For another, he has made a number of landmark judgments and at times, his comments in court have raised eyebrows in political circles.

Take for example his judgment in May 2001 where he ordered the immediate release of two reformasi activists, N. Gobalakrishan and Abdul Ghani Haroon, who were being detained under the Internal Security Act (ISA).

The two had been vocal and had taken part in the wave of reformasi following the sacking of Datuk Seri Anwar Ibrahim as deputy prime minister.

Fifty days after their arrests, Justice Hishamudin ruled their detention was unlawful on grounds that there was abuse of power by the detaining authorities and a failure by arresting officers to justify the arrests.

He ruled that that there was a premature decision by the Inspector-General of Police (IGP) and director of Special Branch to detain the two for more than 30 days and that they were “deliberately and unreasonably denied” access to their lawyers and family members right up to their hearing.

Justice Hishamudin, who holds a Bachelor's degree and a Master's of Law from the prestigious London School of Economics and Political Science, caused a stir in his 28-page judgment when he said it was high time that Parliament examined the relevance of the ISA which was originally meant to counter terrorism. He called for a review of the ISA and its provisions to prevent or minimise abuses.

While lawyers applauded him, this, however, did not go down well with the Government.

Datuk Rais Yatim, who was then a minister in the Prime Minister’s Department, said it was not up to a judge to decide which laws should be amended.

But the Asean Law Association was quoted as saying that judges could comment on the relevance of laws and had a duty to inform Parliament when a law became outdated or was inappropriate.

The Negri Sembilan-born Hishamudin, who became a High Court judge in October 1995, has also presided over other interesting political cases.

In August 2005, he awarded RM4.5mil to Anwar in his libel suit against Datuk Abdul Khalid @ Khalid Jafri Bakar Shah, the author of 50 Dalil Mengapa Anwar tidak boleh jadi PM (50 reasons why Anwar cannot be PM).

Explaining the decision to award such a large figure, Hishamudin said the facts and circumstances of the case were unique and hence, the damages awarded must be reflective of the peculiarity of the case.

In another case heard in August 2005, where Anwar had sued the Government, the Home Minister and the then IGP Tan Sri Rahim Noor over the assault and infamous black eye incident while he (Anwar) was detained and held under police custody in September 1998, Hishamudin presided over the case.

He struck out the suit when all parties came to an out-of-court settlement in which the sacked deputy prime minister was paid an undisclosed amount, and Rahim made an open court apology to Anwar for the assault.

Another riveting political case Hishamudin heard involved former Malacca Chief Minister Tan Sri Rahim Tamby Chik who sued Parti Keadilan Nasional (now Parti Keadilan Rakyat) former information chief Ruslan Kassim RM15mil for slander.

But Justice Hishamudin again did not have to rule on the case because in January 2004, he announced that the two parties had agreed to settle the case out of court and Ruslan made an open court apology to Rahim for damaging his reputation.

He also heard a case that gripped the nation in October 2000 where express bus driver Hanafi Mat Hassan was accused of raping and murdering computer engineer Noor Suzaily Mukhtar, a passenger in the bus.

Suzaily sustained 44 injuries and fractured a neck bone. She died from strangulation.

Justice Hishamudin found Hanafi guilty and sent him to the gallows.

Last year, Justice Hishamudin also made a decision which sparked fresh debate when he ruled on the controversial Ayer Molek case.

He ruled that the Federal Court panel that heard the case involving a dispute of shares was illegal and unconstitutional because only two of three judges – former Chief Justice Tun Mohamed Eusoff Chin and Datuk Dr Zakaria Mohamed Yatim – were competent to sit at the apex court.

He said the third judge, Datuk Pajan Singh, should not have heard the case because he was only a High Court judge back then.

As such, he said, he was not bound by the Federal Court decision of that case handed down 11 years ago and chose to follow the Court of Appeal ruling instead.

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