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1. A JUDGE WITH MANY LANDMARK DECISIONS
Emeritus Professor Datuk Dr Shad Saleem Faruqi
Holder of the Tunku Abdul Rahman Chair, Faculty of Law, University of Malaya
Justice Dato’ Mohd Hishamudin Mohd Yunus illuminated the judicial firmament for 23 years and
retired from the Court of Appeal on Sept 9, 2017. He was an exemplar of judicial integrity, fearless
independence and unwavering commitment to constitutional supremacy and human rights. He
saw law as an embodiment of justice and not a mere heathen word for power. Whenever he
could, he interpreted legal provisions in such a way as to promote fairness and equity.
He was a distinguished member of a very small band of Malaysian jurists in the “post-Salleh
Malaysian judiciary”1 who maintained fearless independence, resisted politicization and refused
to allow executive policies and priorities to trump the law and the Constitution. He acted with
even-handedness towards all persons, irrespective of race and religion or political affiliation. The
dominant tendency in the superior courts of his time, of allowing race and religion to outweigh
the Constitution, did not colour his judgments. His life was animated by the finest ideals of the
Constitution. The law in his hands was interpreted creatively and equitably.
How far his example and his judicial philosophy will be emulated by other judges remains to be
seen. What we can hope for is that in the new Malaysia after GE14, there will be more judges like
him who will honour their oath to preserve, protect and defend the Constitution.
A SELECTION OF HIS PROMINENT JUDICIAL DECISIONS
Personal liberty: Throughout his judicial career, Justice Hishamudin showed tenderness for
fundamental liberties and exhibited a creative and activist streak in his interpretation of laws. He
will be remembered with respect by all those who believe that the judiciary must balance the
might of the state with the rights of citizens.2
The learned judge will most certainly be remembered for his Abdul Ghani Haroon v IGP trilogy.3
In this series of cases involving preventive detention under the Internal Security Act, he made a
number of bold and pioneering rulings. First, an applicant for habeas corpus has a right to be
present in court during the proceedings. This eminent ruling was overruled by the Federal Court
on a pedantic, literal and executive-minded interpretation of Article 5(2): “Where a complaint is
made … that a person is being unlawfully detained the court shall inquire into the complaint and,
1
“Post-Salleh Malaysian judiciary” refers to the judiciary after the suspension of the Lord President Tun Salleh
Abas and five other Supreme Court judges in 1988. Three of the six were ultimately dismissed.
2
Parts of this essay are drawn from the author’s article in The Star, “A Judge With Many Landmark
Decisions”, Reflecting on the Law, Thursday, 17 Sep 2015.
3
Abdul Ghani Haroon v Ketua Polis Negara [2001] 2 CLJ 574; Abdul Ghani Haroon v Ketua Polis Negara Application
(No. 3) [2001] 2 CLJ 709; Abdul Ghani Haroon v Ketua Polis Negara (Application (No. 4) [2011] 3 CLJ 606.

2. unless satisfied that the detention is lawful, shall order him to be produced before the court and
release him”. The apex court felt that the order of production should not be automatic and should
be issued only after the judge is satisfied that the detention is unlawful. It is humbly submitted
that the Federal Court was wrong and Justice Hishamudin was eminently correct. The proud
history of habeas corpus in other countries supports a tradition that the applicant is required to
be present in court rather than be heard in abstentia. To hold otherwise would make no sense if
there is allegation of torture, inhumane treatment or of custodial death. In such circumstances
the only way to establish facts is to produce the detainee in court. A second principle enumerated
by Justice Hishamudin was that the discretion of the police to arrest is not absolute. Judicial
review of executive discretion is possible if grounds of arrest and sufficient particulars are not
supplied and access to lawyer and family is denied. The right to see one’s family was a creative
interpretation of Article 5(1). Third, habeas corpus will issue if there is unreasonableness and bad
faith in police conduct. Justice Hishamudin emphasized an objective rather than a subjective
criterion to test the legality of police conduct. Fourth, in a courageous and innovative ruling, he
ruled that the police can be restrained from re-arresting the detainee immediately after release.
In another ISA case, Justice Hishamudin awarded the detainee in Abdul Malek Hussin bin Hussin
v Borhan bin Hj Daud & Ors [2008] 1 MLJ 368 RM2.5mil in damages for unlawful detention and
assault. His judgement was partly set aside on appeal.
All the above rulings ran counter to prevalent judicial subservience to executive perceptions of
security and public order in preventive detention cases.
In Muhamad Juzaili bin Mohd Khamis v. State of Negeri Sembilan [2015] 3 MLJ 513, the appellants
were Muslim men who, because of a gender identity disorder, had been expressing themselves
as women by wearing female clothes and make up. Section 66 of the Syariah Criminal Enactment
(Negeri Sembilan) 1992 made it an offence for any male Muslim to wear a woman’s attire or to
pose as a woman. The appellants had been repeatedly detained, arrested and prosecuted by the
religious authority. They challenged the constitutionality of Section 66. The High Court dismissed
the challenge. It was held by the Court of Appeal, with Justice Hishamudin writing the majority
opinion, that Section 66 interferes with the personal liberty of the appellants because it prevents
them from moving about in public places to reach their respective work places. The right to work
is part of their right to life in Article 5(1). Additionally, Section 66 was inconsistent with Article 8
of the Constitution because it unfairly subjected G.I.D. sufferers to the same provisions as other
normal males. It was further discriminatory because it singled out males who dressed like females
and said nothing about females who dress like males. Section 66 affects the appellants’ right to
freedom of expression, in that they are prohibited from expressing themselves in the way
dictated by their psychological make-up.
Equality: In Manoharan Malayalam & Anor v Dato’ Seri Mohd Najib Abdul Razak & Ors [2013] 8
CLJ 1010, the plaintiffs alleged that the Federal Government discriminated against Tamil primary
schools contrary to Articles 4, 8 and 12. The High Court refused locus standi (legal standing to
sue). Justice Hishamudin and his brother judges at the Court of Appeal overruled the High Court

3. and granted the applicants the right to submit their arguments because concerned citizens with
a bona fide complaint of human rights violation should have a right to be heard on merits.
In the famous transgender, cross-dressing case of Muhamad Juzaili [2015] 3 MLJ 513, Justice
Hishamudin wrote the unanimous opinion that section 66 of the Negri Sembilan Enactment
which penalises men who dress like a woman, but does not impose similar punishment on
women who dress like men, was a violation of the equality doctrine.
Speech and association: In the Muhammmad Hilman Idham v. Kerajaan Malaysia [2011] 9 CLJ
50 Justices Hishamudin and Linton Albert J. held that section 15(5)(a) of the Universities and
University Colleges Act, which forbade students from expressing any sympathy or support for any
political party, was contrary to the Constitution’s guarantees in Article 10. The decision
emphasized that parliament is not supreme, and the restrictions imposed on free speech must
be confined to the restrictions enumerated in Article 10(2). There must be a rational and not a
fanciful connection between the law and the object sought to be achieved.
Secrecy: In a dissenting judgment relating to the Official Secrets Act and the secrecy of a water
concession agreement, Justice Hishamudin disagreed with the majority that the Minister cannot
be compelled to disclose the agreement and the audit report: Minister of Energy, Water and
Communication & Anor v Malaysian Trade Union Congress & Ors [2013] 1 MLJ 61.
Property: In Ismail Bakar & Ors v Director of Land and Mines, Kedah Darul Aman [2010] 9 CLJ
810, the delay of nine years to effect payment for a compulsory acquisition order rendered the
order null and void. In Ee Chong Pang & Ors v The Land Administrator of the District of Alor Gajah
& Anor [2013] 2 MLJ 16, the failure of the Malacca government to comply with the mandatory
procedure of issuing Form A, invalidated the compulsory land acquisition order. In Syarikat
Pengangkutan Kesejahteraan Sdn Bhd v Tenaga Nasional BHD [2010] 1 CLJ 625, the right to
property under Article 13 was involved. There was an exercise of statutory power under the
Electricity Supply act 1990 to enter the private land for installation purposes. However, notices
required by the law were not addressed to the registered proprietor. There was no date for
hearing and there was inadequate description of the land in the notice. No proper assessment
inquiry was conducted. Compensation was not paid to the land owner but to a third party!
However, TNB gained occupation of the plaintiff’s land. It was held that the defendant’s
occupation of the disputed area was prima facie unlawful. The notices that were issued were
defective. There was no proper assessment inquiry. As such, there was a violation of Article 13(1)
of the Constitution which requires that no person shall be deprived of his property save in
accordance with the law. The Defendant’s claim for restitution against the third party (that had
received the compensation) could not be granted because the Defendant had not come to the
court with clean hands.
In Jitender Singh A/L Pagar Singh & Ors v. Pentadbir Tanah Wilayah Persekutuan [2008] 7 MLJ
479 there was a dispute as to the amount of compensation for the compulsory acquisition of
property. Under Section 40(2) of the Land Acquisition Act 1960, two assessors were appointed

4. and they had the power to decide upon the amount of compensation. Where the assessors differ
from each other, the judge shall elect to concur with the decision of one of the assessors. Justice
Hishamudin held that both assessments were reasonable, but he adopted the evaluation which
favoured the land owners. To his mind, this was in consonance with the spirit of Article 13.
Syariah courts: The Malaysian legal system enshrines both Islam and liberal rights. Since the 90s
these dual commitments provide contending visions for the state and society. A number of
controversial cases from the courts of law indicate how many superior court judges have become
co-opted to ride along on the ‘Islamic state’ bandwagon. A 'rights-versus-rites binary' has been
constructed in law, politics, and the popular imagination.4 Many judges have sidestepped
constitutional supremacy to give primacy to religion and the religious establishment. Syariah-civil
court conflict of jurisdiction cases have proliferated. Many superior court judges, at the slightest
whiff of Islamic law, surrender jurisdiction to the Syariah courts. Justice Hishamudin is not one
of them. While acknowledging the jurisdiction of Syariah courts in matters assigned exclusively
to them by the Constitution’s Schedule 9 List II Paragraph 1, Justice Hishamudin, in the case of
Dato’ Kadar Shah Tun Sulaiman v Datin Fauziah Haron [2008] 4 CLJ 504, ruled that a trust, even
between Muslims, was a matter within federal jurisdiction. Even though the Defendant was
arguing that there was a Muslim gift (a topic in the State List) and not a trust (a topic in the
Federal List), there was no ouster of the civil court’s jurisdiction.
The learned judge laid down a number of guidelines. (1) Where there is an issue of competing
jurisdiction between the civil court and Syariah Court, the proceedings before the High Court
must take precedence over the Syariah Court. (2) Whether this case involved a Muslim gift (a
Syariah court matter) or a civil trust (a civil court matter) is an issue that is not severable and
therefore in the civil court’s jurisdiction. (3) Questions of breach of trust came within the
jurisdiction of the High Court. Any dispute pertaining to the Law of Trusts is outside the
jurisdiction of the Syariah courts (4) The High Courts are superior courts and the Syariah Courts
are inferior tribunals existing under State law. As such, the High Court has supervisory jurisdiction
over all inferior tribunals including Syariah Courts. (5) Article 121(1) and (1A) must not be
interpreted literally or rigidly but must be interpreted purposively. (6) Civil courts are ousted only
if the Syariah Court has exclusive jurisdiction.
In Siti Hasnah Vangarama Abdullah v Tun Dr Mahthir Mohamad (As the President of Perkim)
[2012] 7 CLJ 845, a seven-year-old child born into a Hindu family was converted to Islam by
Muslim religious authorities in Penang without the consent of her parents. On reaching maturity
she challenged the constitutionality of her forced conversion. A question arose whether the civil
court or the Syariah court had jurisdiction over the matter. Justice Hishamudin held that (1) A
subject matter does not cease to be within the jurisdiction of the civil courts just because it has
an Islamic element in it. (2) As there was an allegation that the child was made to renounce her
religion in an unconstitutional and illegal manner, therefore, the fundamental rights of the
parents and the child under Articles 11 and 12 were involved and the civil High Court had
4
Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State,
https://www.cambridge.org/core

5. exclusive jurisdiction. (3) A High Court must be extremely cautious and slow in declining
jurisdiction and in coming to the conclusion that the subject matter of an action falls within the
exclusive jurisdiction of the Syariah Courts especially if fundamental rights are involved. (4) The
civil courts cannot interfere with the Syariah court only if the matter is within the exclusive
jurisdiction of the Syariah court.
Binding precedent: In pursuing justice, Datuk Hishamudin occasionally unshackled himself from
the doctrine of binding judicial precedent. In Raja Segaran a/l S Krishnan v Malaysian Bar [2008]
4 MLJ 941, he refused locus standi to a lawyer who wished to prevent the Bar Council from
discussing the misconduct of the then Chief Justice. Though only a High Court judge then, he
strongly disagreed with a Court of Appeal judgment to bar such discussion. In Dato’ V
Kanagalingam v David Samuels [2006] 3 CLJ 909 the Plaintiff, in a commercial suit, had
manipulated the process of the court to secure a judge of his choice and obtain a mandatory
injunction in the High Court in relation to 540,000 shares. The Court of Appeal in the exercise of
its inherent power had ordered the preservation of the status quo pending appeal. Undaunted,
the Plaintiff applied to the Federal Court for leave to appeal. Leave was granted and the apex
court harshly criticised the alleged lack of neutrality of the Court of Appeal and ordered parts of
the Court of Appeal judgment to be expunged. The Defendant then published an article in an
international magazine criticizing the Plaintiff’s conduct. The Plaintiff sued in defamation. At the
High Court, Justice Hishamudin dismissed the suit on a number of grounds – that the pleading
was defective; that the Plaintiff’s wrongful conduct and manipulation of the process of the court
was the main reason for the publication of the article. In addition, Justice Hishamudin, then a
High Court judge, strongly criticized the Federal Court that had heard the case as being
unconstitutionally constituted. A High Court judge had been illegally coopted by the Chief Justice
to sit on the Bench in disregard of Article 122(2).
In Ishak Hj Shaari v PP [2011] 2 CLJ 46 the issue was whether the Court of Appeal as the apex
court for appeals from the Sessions Court has the inherent power to reopen and set aside an
earlier order of the same court? The majority held that the review jurisdiction or review powers,
not being derived from Article 121(1B), were limited to practice and procedure and could not
extend to setting aside an earlier decision. In his dissent, Justice Hishamudin invoked the “judicial
power” of Article 121(1) and held that the Federal Court and the Court of Appeal had inherent
jurisdiction to review their previous decisions under exceptional circumstances or to prevent an
injustice or abuse of the process of the courts.
Law reform: In Abdul Ghani Haroon v Ketua Polis Negara and another application [2001] 2 MLJ
689 the learned judge invited Parliament to abolish or review the ISA “to prevent or minimise the
abuses highlighted in (his) judgment”.
Misconduct by judges and lawyers: In several judgments, Justice Hishamudin did not hesitate to
take to task lawyers or judges who strayed from the path of justice or propriety. In Dato’ V.
Kanagalingam v David Samuels & Ors [2006] 6 MLJ 521, a prominent lawyer made a RM100
million libel claim against the author of an article in a commercial magazine. In dismissing the

6. claim, Justice Hishamudin referred to the lawyer’s wrongful conduct in the Ayer Molek case5
which the Court of Appeal had taken judicial note of. He held that a person cannot bring an action
based on his own wrong-doing. He also had harsh words for the illegally constituted Federal Court
quorum which ordered the Court of Appeal remarks to be expunged.
Administrative law: In Manoharan Malayalam vs Dato’ Seri Mohd Najib Tun Hj Abdul Razak
[2013] 8 CLJ 1010, the issue was whether the plaintiffs who alleged that the Federal Government
discriminated against Tamil primary schools, had locus standi to commence the proceedings. It
was held by Justice Hishamudin on behalf of the majority that where the complaint is that the
Federal Government or its agents had violated the Constitution by its action or legislation, the
plaintiff has locus to challenge the unconstitutionality without the necessity of showing that his
personal interest or some special interest of his has been adversely affected. The learned court
relied on the opinion in Robert Linggi v The Government of Malaysia [2011] 7 CLJ 373 and
affirmed the trend of liberalisation of the rules of locus standi. It was held that wherever there
is a bona fide complaint by a concerned citizen of a violation of the Constitution, he has a right
to knock on the doors of justice.
However, a different approach was adopted, and rightly so, by the Court of Appeal in State
Government of Selangor vs Murtini Kasman [2014] 7CLJ 773. The issue here was that the
opposition Pakatan Rakyat Coalition had issued a campaign manifesto promising an allowance to
every single mother in Selangor. The promise was not honoured and a group of single mothers
went to the court. The High Court held that the mothers had a reasonable cause of action and a
legitimate expectation. On appeal to the Court of Appeal it was held that a government cannot
be bound by an election manifesto which is more of a moral obligation. Also, there is no room
for the doctrine of legitimate expectation in relation to election promises.
Civil procedure: In Rashidah Mohammad vs Mayban Finance Bhd [2003] 2 CLJ 542 there was a
simple issue of procedure - the defendant Bank had applied to transfer the proceedings to the
High Court of Kuala Terengganu from the High Court in Kuala Lumpur. Under the Rules of the
High Court 1980 there is no provision for the exercise of such power. But true to his belief in
inherent powers of the court, Justice Hishamudin held that there is merit in the Defendant’s
application because the plaintiff has an address in Dungun, the defendant has a branch office in
Terengganu and the plaintiff’s claim emanated from a suit commenced in Kuala Terengganu High
Court. The defendant’s witnesses reside in Terengganu. Justice would best be served if the
proceedings are transferred.
Legal personality: In the case of Chin Yoke Teng v. William Ui Yee Mein [2005] 1 CLJ 819, there
was a civil suit by a lady for breach of promise to marry. In her action against the defendant, the
plaintiff added her unborn child as the second plaintiff to the proceedings. It was held that under
5
Ayer Molek Rubber Co Bhd & Ors v Insas Bhd & Anor [1995] 2 MLJ 734]

7. various laws including the Interpretation Acts 1948 & 1967, an unborn child has no legal
personality to sue.
In sum, Justice Hishamudin’s life was one of courage, conviction and judicial activism. He left
behind large footprints. His years on the Bench were marked by integrity, fearless independence
and an unwavering commitment to do justice on the facts of each case. After his retirement, he
remains active in legal affairs and staff and students of law schools continue to benefit from his
wisdom and experience in many areas
JUDICIAL ACTIVISM
One aspect of Justice Hishamudin’s judicial life that attracted controversy in some circles was his
creative, activist and liberal interpretation of the law. A look at his decisions indicates that he was
not supportive of a passive role for the judiciary. In fact, in an erudite article in 2011, he openly
supported judicial activism. In his words judicial activism refers to “a judicial decision that is
creative, that breathes life into the law; a decision that involves inductive reasoning, that is
positive and takes into account the social needs of the time, whilst at the same time paying heed
to the principles of justice and the legal and constitutional framework within which that decision
is made”6. In his article, Justice Hishamudin chose as an example of judicial activism the decision
of Tan Sri Wan Suleiman to convene the Supreme Court during the tragic events of the judicial
crisis of 1988. Lord President Tun Salleh had been suspended by the Yang di-Pertuan Agong and
a tribunal, headed by Tun Salleh’s Deputy, was constituted to try him. Tun Salleh applied to the
High Court for an injunctive relief to stop the Tan Sri Hamid Omar Tribunal from delivering its
recommendations. The High Court judge Ajaib Singh J deliberately delayed the disposition of the
application. Tun Salleh applied to the Supreme Court. Tan Sri Hamid Omar as the Acting Lord
President would normally have the right to convene a session of the Supreme Court under
Section 39(1) of the Courts of Judicature Act 1964. Instead, he instructed the court registrar to
prevent the application from being filed. In the face of the various impediments placed before
the court on the instructions of Tan Sri Hamid Omar, and given the conflict of interest situation
involving Tan Sri Hamid, Tan Sri Wan Suleiman, as the next most senior judge, convened an urgent
sitting of the Supreme Court which issued an order of prohibition. For his moral courage and
independence, Tan Sri Wan Suleiman was suspended and later dismissed. Dato’ Hishamudin
refers to the decision of Tan Sri Wan Suleiman as an act of great judicial activism.
Building on Dato’ Hishamudin’s views, it is suggested that a judicial decision is “activist” or
“creative” if:
• It is non-literal; it rejects strict textualism or plain meaning of the words.
• It is not based on the actual words but on the legislative history.
• It views the law holistically i.e. reads rules in the context of the whole legal system. It
emphasizes coherence and harmony and reads a norm as part of the whole system.
6
“Judicial Activism – The Way To Go?” [2012] 6 MLJ xvii

8. • It supplements (formal) rules with “non-rule standards”, i.e. with principles, presumptions
and a dimension of morality. The decision has an innate sense of equity and justice and right
and wrong.
• It takes note not only of the letter but also the spirit of the law i.e. it looks not only at rules
but behind them to their idealistic purpose (purposive interpretation).
• It looks not only at rules but beyond them to their consequences. What inspires the decision
is not the content but the consequence; not the form but the functioning; not what the law
says but what the law does.
• It escapes the icy grip of precedent and refuses to allow the dead hand of the past to dictate
to the present.
Having defined judicial creativity as above, let me administer one caution. Creativity and justice
are not always fellow-travelers. Regrettably, it is often the case that judges exercise their genius
to interpret the law creatively to expand the horizons of power and constrict those of freedom.
For example, in Ooi Ah Phua v Officer in Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ
198 the arrestee sought to enforce his Article 5(3) right “to consult and be defended by a legal
practitioner of his choice”. The learned judge held that though the right exists from the moment
of arrest, it can only be exercised after police have completed their investigation! The judicial
gloss on the law rewrote Article 3 in the name of public order but to the detriment of the hapless
detainee.
In Hjh Halimatussaadiah Hj Kamaruddin v Public Service Commission Malaysia & Anor [1992] 1
CLJ 413 freedom of religion in Article 11 was interpreted to mean only the essential, mandatory
practices of religion - which is not how the faithful view things.
In Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors [2007] 4 MLJ 585 and a host of
decisions on attempted apostasy, the freedom of conscience of the parties in Article 11 was
subjected by the Federal Court to the prior permission of the Syariah court. Where does this prior
permission requirement come from? Not from Article 11(5) – restriction on religious freedom on
the ground of “public order, public health and morality”. Not from Schedule 9 List II Para 1 which
permits “creation and punishment of offences against the precepts of Islam” “except in relation
to matters in the Federal list or covered by federal law”. Lina Joy was not being prosecuted for a
crime. The prior permission of the Syariah court appears to be a pure judicial gloss on the law to
appease Malay-Muslim public opinion and at the same time recognize the constitutional
freedom, though in a nominal way.
In support of Justice Hishamudin’s views on judicial activism it is submitted that there are many
moral, philosophical and interpretive imperatives that support judicial creativity.
The judiciary is a moral institution: More than the executive and the legislature, the judiciary is
the bulwark of our liberties and protector and guardian of values on which a democratic, rule of
law society thrives. It is often the case that for electoral reasons, the executive and the legislature
look away when injustices blight our society. This is where the moral role of the judiciary becomes

9. important. For example, in the USA, while the atrocities of racial discrimination blazed, the
executive and the legislature slept till the sixties. The Supreme Court in Brown Et Al. v Board of
Education of Topeka Et Al. 347 U.S. 483 stepped in to roll back by the tide of discrimination.
The reality of uncontrolled executive power: Throughout the world there has been a massive
enlargement of the bureaucratic apparatus of the State. The traditional parliamentary techniques
for providing a check and balance and for supervising the administration are not working well.
Therefore, it is imperative that judicial control over the administration be proportionally
strengthened. According to Prof. Wade “as liberty is subtracted, justice must be added”.
Time-frame problems: The Constitution is a document not just for the present but for posterity.
Its wisdom could not possibly have calculated for the felt necessities of today and tomorrow. It
must be interpreted to keep pace with the march of time, to stay sensitive to the rise and fall of
ideas, and to remain abreast of the tides that wash at our shores. Provisions enacted in one age
need to be applied in a time frame of the continuum to problems of another age. A present time
frame interpretation to a past time frame statute invariably involves the judge in a time travel
from the past to the present. The judge has to leap-frog decades to apply the law to the felt
necessities of the times. For example, the concept of ‘property’ in Article 13 drafted in 1957 must
take note of the age of copyright, trademark, patents and industrial designs today. Freedom of
speech must wake up to the cyber age.
Novel situations require holistic view: Life is always larger than the law and the glittering
generalities of the law cannot anticipate all the vicissitudes of life. Now and then novel situations
arise on which the law provides no guidance. For example, does Article 5(1) on personal liberty
give to an accused a right to an expeditious trial? Does an indigent have a right to legal aid as part
of due process under Article 5 and equal protection under Article 8? Whenever rules run out, as
they sometimes do, the judge should not wring his hands in despair. He should adopt a prismatic
approach to the clauses of the Constitution and read into the text, some non-textual,
unenumerated, implied rights. He should reach out into the heart of legal darkness where the
flames of precedent fade and flicker and extract from there some raw materials with which to
fashion a sign-post to guide the law. The contemporary philosopher Ronald Dworkin gives similar
advice in situations where rules run out. According to him, the law consists of rules and non-rule
standards. The judge can rely on principles, doctrines and standards to assist in his decision.
These non-rule standards are an integral part of the majestic, seamless web of the law. A
constitutional court is entitled to view the whole matrix of the law in arriving at his decision.
Ambiguities: The law of the Constitution is so full of ambiguities and conflicts that often the judge
must reach out beyond formal rules to seek a solution to the problem at hand.
Interpretation is a creative task: The law is in language and most legal words are like amoebas
constantly changing shape. Interpretation is an art, not a science. The interpretive task, in its
functioning, if not in its form, is virtually indistinguishable from the law constitutive task. As

10. Justice Holmes pointed out poetically: “A word is not a crystal, transparent and unchanged, it is
the skin of a living thought and may vary greatly in color and content according to the
circumstances and the time in which it is used… It is for the judge to give meaning to what the
legislature has said”. (Towne v Eisner, Collector of United States Internal Revenue for the Third
District of the State of New York 235 U.S. 418)
The number of theories on judicial interpretation is so varied and the taxonomy is so confusing
that the analysis and classification of the various theories is rather subjective and imprecise.7
Given the richness of approaches, it is easy to agree with McHugh J that “any theory of
constitutional interpretation must be a matter of conviction based on some theory external to
the Constitution itself”.8
It is proposed to lump all theories of statutory construction in two categories:
(i) Literal interpretation, and
(ii) Liberal interpretation.
Among the theories of literal interpretation are the following:9
Textual: This is also referred to as literalism, strict textualism, or the plain meaning theory. It is
often described as originalism10 or positivism.11 Decisions should be based on the ordinary
meaning of the actual words of the written law if the meaning is unambiguous. A verbis legis non
est recedendum. “From the words of the law there is not any departure”. Textualism is an
originalist theory that makes primary reliance on the text itself and non-textual sources like the
drafters’ intention or natural law are not binding.
Doctrinal: Decision should be based on the prevailing, normative practices or opinions of legal
professionals. Argumentum a simili valet in lege. “An argument from a like case avails in law’.
This approach is consistent with a rigid application of the doctrine of stare decisis.
In contrast, there are many theories of liberal interpretation:
Historical intention: Decision should not be based on the actual words but on the legislative and
case history. Intention of the drafters is important. Animus hominis est anima scripti. “Intention
is the soul of the instrument”. The law should be interpreted purposively. A slight variation is that
7
Malayan Law Journal, Halsbury’s Laws of Malaysia, vol. 3(2) (at 19 May 2018), Constitutional Law, ’15
Constitutional Interpretation’ [100 207]
8
McGinty v Western Australia (1996) 186 CLR 140 at 230.
9
Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Public Policy 23, 24 (1994)
10
McGinnis, J O and Rappaport, M B “Original Methods Originalism: New Theory of Interpretation and the Case
Against Construction”, (2009) 103(2) Northwestern University Law Review 751-802.
11
Purcell Jr E A, “Democracy, the Constitution and Legal Positivism in America: lEssopns from a Winding and
Troubled History”, Florida law review 66(4) (2015) 19 May 2018 https://scholarship.law.ufl.
Edu/cgi/viewcontent.cgi?article=1209&content=flr

11. some jurists emphasise the original intention of the actual text and not of the drafters, which
converts this approach to a literal approach.
Functional: This is also referred to as the pragmatic, consequentialist, prudentialist or economic
approach. The social, political and economic consequences of alternative interpretations must
be regarded. Not the content but the consequence, not the form but the functioning is important.
Not what the law says, but what it does must be noted. When the declared law leads to unjust
or undesirable results or raises issues of public policy or public interest, judges around the world
try to find ways of adding moral colours or public policy shades to the legal canvas. In this
sociological, functional, consequentialist approach, factual data from society is collected and
analysed to understand the working of the law and law’s actual consequences. This is referred to
as the “Brandeis Brief” method of lawyering in the courts.
One could note for instance that public interest interpretation of Article 5(3) in Ooi Ah Phua v
Officer in Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 in which the constitutional
right to consult and be defended by a legal practitioner of one’s choice was judicially interpreted
to come alive only after police have completed their investigation.
In Hjh Halimatussaadiah Hj Kamaruddin v Public Service Commission Malaysia & Anor [1992] 1
CLJ 413, a public servant’s freedom of religion was subjected to a “reasonable restriction” not
enumerated in Article 11(5). In a string of cases under Article 8, the Courts have grafted the
judicial concept of “rational classification” to classify citizens in different categories for purposes
of the equality doctrine. Witness the pension case of Government of Malaysia v VR Menon [1990]
1 MLJ 277.
In the party-hopping case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor
[1992] 1 MLJ 697 the judges adopted a consequentialist approach. The consequence of the anti-
hopping law will be that a punishment will follow the exercise of the fundamental right to
association.
Structural: Decision should emphasise the coherence and harmony of the system. The law should
be read as a whole. A statutory provision should be read in the light of other provisions of the
legislation. One Nemo aliquam partem recte intelligere potest antequam totum perlegit. “No one
can properly understand a part until he has read the whole”.
Natural law approach: This is also called the equitable, ethical, aspirational and natural law
approach. Decision must be based on an innate sense of justice, balancing of interests and what
is right and wrong regardless of what the written law provides. Equitas est perfecta quodam ratio
quoe jus scriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione
consistens. “Equity is a perfect reason which interprets and amends written law”.12 Decisions are
12
Coke, Littleton, 24.

12. based on natural law and a theory of higher law. An unjust law is not law - lex injusta non est lex.
The judge takes note of what is required or advised by the laws of nature. Jura nature sunt
immutabilia. “The laws of nature are unchangeable”.
Dworkinian holistic approach: According to Ronald Dworkin, law includes rules as well as non-
rule standards that have grown up in the life of the community. A judge must interpret the law
holistically, reading a section in the context of other sections and a statute in the context of other
statutes that are pari materia. If the formal rules lead to injustice, it is the job of the judge to
mitigate the harshness of the law by reading the statute in the light of doctrines, principles and
a dimension of morality. Dworkin rejects lex injusta non est lex but advises judges at the
interpretive stage to use the moral paint brush to add colours to the legal canvas. Justice
Hishamudin did that often.
Prudential: In the related prudential approach, decisions should be based on factors external to
the law such as the convenience of overburdened officials, avoidance of litigation or of disturbing
a stable body of practices, or efficiency of government operations. Boni judicis est lites dirimere.
“The duty of a good judge is to prevent litigation”.
Rules of interpretation: Along with theories of interpretation, there are scores of rules of
interpretation. For example, the rule of “literal interpretation”, the rule of “purposive
interpretation” the “golden rule”, the rule of “harmonious construction”, the Mischief rule13,
“later overrides former”, “special overrides general”, the “doctrine of pith and substance” and
the “rule of ejus dem generis”.
In response to the multiplicity of rules of interpretation, it is often said in jest that the golden rule
is that there are no golden rules!
Consistency in principle: It is submitted that if judicial creativity is permissible to expand the
powers of the State, then it should also be permissible to expand the horizons of freedom. We
must be consistent in principle and not hide behind separation of powers in some situations but
add judicial colours to the law in others to provide legitimacy to expansive exercises of power.
Separation of powers or check and balance? Separation of powers need not mean strict
compartmentalization of Montesquieu. It can also refer to check and balance of Madison. It can
also refer to a diarchal allocation of the same power to more than one branch of the State, to
keep anyone from exercising unlimited competence. Judicial review and judicial activism are
essential aspects of check and balance.
Judicial activism is inherent in a supreme Constitution: In addition to the moral, philosophical
and interpretive imperatives, the Constitution of Malaysia is framed in such a way that judicial
13
Rule in Heydon’s Case (1584) 3 Co Rep 7a, 76 ER 637)

13. activism is an inherent, inevitable and indispensable part of the constitutional and legal system.
The Constitution is supreme. Any pre or post Merdeka law that violates the Constitution can be
invalidated by the courts. Parliament is not supreme. There is a chapter on fundamental liberties.
In a federal system of government, there is a clear demarcation of federal-state powers on
legislative, executive, judicial and financial matters. Though Islam is the religion of the
Federation, it is not the basic law of the land and applies in only 24 areas enumerated in Sch 9
List II Para 1. Some provisions of the Constitution are entrenched against easy repeal or
amendment and judicial review is available if the mandated procedures are not complied with.
Constitutional interpretation is a class of its own: Constitutional philosophers are generally in
agreement that a Constitution is a living document and cannot be interpreted literally or
pedantically: Badan Peguam v Kerajaan [2008] 2 MLJ 285. This is the “living tree” approach
towards interpreting the Constitution. Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 asserted
that the term ‘law’ in the Constitution includes natural justice. In the Singapore Constitutional
Reference No. 1 of 1995 [1995] 2 SLR 201, a purposive interpretation was emphasized.14
One must bear in mind that the Constitution is not just a lawyer’s document, but also the vehicle
of a community’s legal, political and social life. It is the repository of the nation’s dreams and
demands, its values and vulnerabilities. It seeks to reconcile the irreconcilable conflict between
the might of the State and the rights of the citizens.
A Constitution is not drafted just to protect the rich but also to liberate the poor, the orang asli,
the marginalized and the disadvantaged. While reflecting existentialist realities, it is meant to be
dynamic and transformative.
A Constitution is not the last will and testament of our forefathers. It is a document of destiny for
the generations to come.
A Constitution is not just black-letter words (as the majority in Kok Wah Kuan v Public Prosecutor
[2007] 5 MLJ 174 implied by rejecting the unwritten doctrine of separation of powers). A
Constitution has a spirit and a soul. It is founded on values of freedom and justice and doctrines
like rule of law, separation of powers and natural justice.
It is the duty of judges to enforce these values. Constitutionalism and constitutional supremacy
are not promoted if the interpretation that is chosen is literally possible but promotes absolutism,
shields abuse of power and prevents accountability.
More than most judges of his time, Justice Hishamudin reflected these values. Malaysian
jurisprudence owes him a great debt of gratitude.
14
However, Rajeevan Edakalavan v Public Prosecutor [1998] 1 SLR 815 preferred strict textualism. Likewise, Loh
Kooi Choon [1977] 2 MLJ 187 gave primacy to the written text. Dato Menteri Othman Baginda [1981] 1 MLJ 29
emphasized the sui generis principle of interpretation.