Malaysian Judge Stands Up

Malaysian High Court Judge Hishamudin Mohd Yunus has punished the government heavily for gross abuse of the colonial-era Internal Security Act, ruling that the state had violated the Constitution and awarding political detainee Abdul Malek Hussin 2.5 million ringgit in compensation.

Malek was arrested in September 1998 in the tumultuous days of the reform movement following the sacking and imprisonment of former deputy prime minister Anwar Ibrahim. During his 57 days of detention, Malek was subjected to what the judge called “vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment,” and completely deprived of legal counsel.

The High Court decision is likely to be appealed, and it is questionable if it will stand. Other lower-court decisions with political implications have been reversed by higher courts. Nonetheless, Anwar, now an opposition leader, hailed the decision as one "that potentially drives a dagger through the heart of a notorious law."

The law allowing preventive detention without trial originated in the 1930s under the British colonial government and was extended to allow the government to detain suspects for up to a year in 1948 when the Malayan Communist Party began its armed struggle to take over the colony. Although the emergency ended in 1960 and most of the regulations were repealed, the ISA remained in place. It has been used regularly by succeeding Malaysian governments against detractors, particularly when racial tensions have threatened to get out of hand.

In March 1999, Malek filed a civil suit citing police special branch officer Borhan Daud, the then-Inspector General of Police Rahim Noor and the government as respondents. In his judgment, Hishamudin said he had found no evidence that Malek had posed any threat to national security but every indication that the detention and torture was politically motivated, arising from Malek’s support of Anwar and his reform movement. As such, Malek’s detention was unlawful, and a violation of his rights.

In an October 20 interview with Malaysiakini, the Kuala Lumpur-based Internet publication, Malek described being stripped naked and forced to drink the urine of his captors and being given dog feces to eat. He told the publication he had been beaten senseless repeatedly and was hit so hard on the side of his head that he sustained permanent hearing damage. He said he had been subjected to interrogation for 17 straight days at all hours of the day and night.

In hard-hitting language, the judge described the defendants’ behavior as “inhuman, cruel and despicable”. He awarded exemplary damages of RM 1 million “to show the abhorrence of the court of the gross abuse of an awesome power under the Internal Security Act, and to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely.”

In his 41-page judgment, Hishamudin pinpointed several police officers for breaching the law and concocting evidence. He also expressed displeasure at the Deputy Public Prosecutor for having implicitly colluded with police officers in thwarting Malek’s complaints.

A minority in a judiciary often perceived willing to bend to the wishes of the government, Hishamudin has impressed human rights watchers with a record of independent and impartial judgments. His most notable one came in May 2001 when he freed two activists who had been arrested under the ISA for their activities in the reformasi movement, as it was called, after Anwar had been arrested.

Hishamudin’s judgment is a significant counterpoint to recent developments in Malaysia’s court system, most notably allegations inspired by a video clip that V K Lingam, a well-connected Kuala Lumpur lawyer, was conspiring with current Chief Justice Ahmad Fairuz in a telephone conversation to fix the appointments of jurists loyal to then-Premier Mahathir Mohamad in 2002. Subsequent events turned out to tally with the scenario outlined in the Lingam-Fairuz conversation, thus strengthening the credibility of this tape.

A prominent example of this skewed system of promotion is seen in the contrasting fortunes of Justice Hishamudin and Justice Augustine Paul, who handled the sodomy and corruption trial of Anwar. The trial has been widely regarded by human rights groups across the world as politicized and badly flawed, and ultimately the decision was reversed.

Paul, newly promoted to the high court to handle the Anwar case in 1998, was leapfrogged to the nation’s highest court, the Federal Court, by 2005. Hishamudin, by contrast, has stagnated as a high court judge since 1995. Another example is Court of Appeal judge Gopal Sri Ram, Malaysia’s most senior judge, who has been by-passed for promotion to the Federal Court 14 times since his appointment in 1994. Some of those promoted on the express train had stayed in the Court of Appeal for only one year.

Critics say that fortune smiles only on those judges who are obedient and submissive, but woe to those who are steadfastly principled. Hishamudin and Sri Ram are rare gems in Malaysia’s judiciary. Judicial reform is a long journey, and the country hasn’t started yet.

Malaysia cannot afford to compromise on the quest for a royal commission of enquiry to look into the judicial rot revealed by the Lingam video clip, as a first step towards full reform. Those who wish to can contribute towards making this objective a reality by supporting a petition to the king to set up such a royal commission. The full text of the petition can be read at: http://harismibrahim.wordpress.com.

Kim Quek is a Malaysia-based commentator who writes regularly on political affairs in the country.