For a person who has sat on the bench for years from the Magistrates' Court to the Court of Appeal, retired judge Mohd Hishamudin Mohd Yunus has literally presided over thousands of cases but to him, his favourite would have to be the transgender case.

Admitting that it would be difficult to pick just one favourite, he said that that case is both interesting and important in the context of constitutional law and fundamental liberties.

“It is multi-dimensional. It has the religious dimension, the medical dimension, the sociological dimension, and the constitutional law dimension.

“I chaired the panel, with justice Aziah Ali and justice Lim Yee Lan being the other judges.

“We ruled section 66 (which prohibits Muslim men in Negeri Sembilan from cross-dressing as women) of the Negeri Sembilan syariah criminal enactment to be unconstitutional, as being in violation of several articles in the federal constitution pertaining to fundamental liberties,” he told Malaysiakini in an interview.

The three transgenders - Muhamad Juzaili Mohd Khamis, 27, Shukor Jani, 29, and Wan Fairol Wan Ismail, 31 - had decided to launch a constitutional challenge of the Negeri Sembilan enactment after failing at the Seremban High Court.

In recognising the rights of the transgenders , Hishamudin ruled that Section 66, which bars men from dressing as women, is void.

“We hold that section 66 is invalid, as it is unconstitutional. It is inconsistent with article 5(1), article 8(2), article 9(2), and article 10(1)(a), of the federal constitution, and is therefore void,” Hishamudin had ruled in the unanimous decision delivered last year.

Article 5(1) states that no person shall be deprived of his or her personal liberty. Article 8(2) is with regard to equality, where no person can be discriminated based on religion, race, descent, place of birth, or gender. Article 9(2) is on freedom of movement, and Article 10(1) is on freedom of expression.

The government is presently appealing the decision at the Federal Court.

ISA release crowning achievement

Hishamudin retired on Sept 9 and was given a send-off at the Court of Appeal. He studied law at the London School of Economics, was called to the Bar at Lincoln's Inn in 1973, and made numerous landmark judgments when he was at the High Court and the Court of Appeal.

One of his achievements was when he was appointed by the International Bar Association Human Rights Institute to be part of a fact-finding delegation to South Africa on the Independence of the Judiciary.

Despite a stellar career, earning respect among the local and international legal community, he did not get elevated to the Federal Court.

One of Hishamudin's landmark judgments was granting habeas corpus in the case of Internal Security Act (ISA) detainees Abdul Ghani Haroon and N Gobalakrishnan at the Shah Alam High Court 14 years ago.

For him, this was the highest point in his career as a judge, where he granted their freedom from detention without trial.

“Based on the evidence, 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.

“At the time of making the formal order for their release at 3.30pm on May 30, 2001, there were many police personnel in court, and there was the fear that the two applicants would be rearrested the moment they were to leave the court premises.

“Thus upon the application of their counsel, I also made an ancillary order that the two persons not to be re-arrested upon stepping out of the courtroom, if the intended re-arrest were to be based on the same evidence in the possession of the police,” he said, adding that the police complied.

Called for ISA's repeal

Commenting on the case, he said the abuse of the ISA had compelled him to write in his judgment that it was high time for Parliament to consider abolishing the ISA, or at the very least, amend the ISA to eliminate or minimise the possibility of abuse.

The day after reading out the decision, Hishamudin said there was this feeling of happiness in him, as he drove up north on a trip to Alor Setar, Kedah.

“I thought that I had done something good, that I had done some substantial justice to hapless individuals, in accordance with the law.

“The attorney-general appealed to the Federal Court but withdrew the appeal two weeks before the appeal was scheduled to be heard.

“Hence, the AG’s appeal was dismissed and my decision was affirmed,” he said.

For that decision, the former Court of Appeal judge said he received accolades and letters of appreciation from all walks of life - from serving and former judges; friends; his former history teacher at Malay College Kuala Kangsar, the late Muzaffar Tate; and a Roman Catholic priest.

“But most who wrote to me are people whom I did not know and had never met. It was touching,” he described.

The ISA was repealed in 2012 but was replaced in essence by the Security Offences (Special Measures) Act 2012.

Liberating varsity students

Hishamudin also wrote the landmark majority judgment that declared Section 15(5) of the University and University Colleges Act - which bars university students from taking part in political activities - as unconstitutional.

The retired judge is also known for his pertinent remark in the VK Lingam vs David Samuels (known as the Euromoney magazine case) which is referred to now as the infamous Ayer Molek case.

In this, he declared the Federal Court panel that heard the Ayer Molek case, led by former lord president and chief justice Eusoff Chin ( left ) - was illegally constituted as the third panel member, Pajan Singh, was at the time only a High Court judge.

Only judges of the Court of Appeal and above can sit in the Federal Court.

A local daily had previously described Hishamudin as 'a judge of big events', after he ordered controversial author Khalid Jafri of the book ` 50 Dalil Kenapa Anwar Tak Boleh Jadi PM ' to pay RM4.5 million in damages to opposition leader Anwar Ibrahim.

He was also the High Court judge who in 2002 sentenced express bus driver Hanafi Mat Hassan to death following the brutal rape-cum-murder of computer engineer Noor Suzaily Mukhtar.

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