Justice Hishamudin’s ten points should be engraved in the Dewan of the Sarawak State Assembly

Justice Hishamudin’s ten points should be engraved in the Dewan of the Sarawak State Assembly

One Sarawakian said it was the best-spent eight hours of his life. He expressed that sentiment during the Question and Answer session at a seminar titled “Religious Freedom and Nation Building – Religion without Compulsion.”


That Sarawakian was one of over 400 persons who attended the seminar organized by the Dayak National Congress.
The seminar was organized in response to the Malay Dignity Congress (MDC) held in Shah Alam on 6 October, attended by over 5,000 persons, including leading politicians. One of the MDC’s demands is that positions of power be limited to Muslims, supposedly because Malaysia is an Islamic state.


When the Sarawakian expanded on his comment, he gave prominence to a 50-minute speech by retired Court of Appeal Judge, Datuk Seri Mohd. Hishamudin Yunus, and to answers Hishamudin gave during the Q&A.
Hishamudin is no stranger to those who have paid attention to court rulings in Malaysia. I suspect most of his listeners on Saturday, 9 November, don’t know of the courage he has displayed in his career – courage which resulted in PM Najib opposing his elevation to the Federal Court.


I’ll list just three of Hishamudin’s bold decisions.


In 2001, Hishamudin, then a High Court judge, ordered the (habeas corpus) release of Reformasi activists Abdul Ghani Harun and Gobala Krishna who had been held under the ISA in the aftermath of Anwar Ibrahim’s 1998 sacking. He even suggested Parliament should review the ISA.
(13 years later, a panel of three judges ordered the government to pay five detainees RM 4.55 million Ringgit in damages for unlawful detention.)


In 2011, in a majority judgment, Hishamudin held that Section 15(5)(a) of the Universities and University Colleges Act, which prohibits students from expressing support for or opposition towards any political party, contravened the constitutional guarantee of freedom of speech.
In 2014, in a case involving cross-dressing of transgender persons, Hishamudin was one of three judges who unanimously ruled that Section 66 of Negri Sembilan’s Syariah Criminal Enactment 1992 contravened the Federal Constitution.


Hishamudin is now a member of the Judicial Appointments Commission which decides who will be appointed judges and also a Human Rights (Suhakam) Commissioner. He serves Malaysia in many other capacities, but I shall not touch on those.


That’s the background to Hishamudin, who delivered a speech titled “Religion and the State: Secular or Theocratic.”
He began by asserting that based on the Federal Constitution, Malaysia is a secular state, not a theocratic Islamic state. He based his assertion on ten observations. I’ll present them almost entirely in his own words:
One, while Islam is declared to be the State religion, the Constitution stipulates that [the position of Islam] is subject to the provisions on fundamental liberties, citizenship, the separation of the legislative, executive and judicial powers in Malaysia, federal-state relations, finances, elections, public services, etc. [Article 3(4)]


Two, the Constitution proclaims itself to be the supreme law of the Federation, as opposed to the holy book of any religion. [Article 4(1)]
Three, the Constitution guarantees the Rule of Law and Separation of Powers i.e. Malaysia’s laws are made, executed and interpreted by three secular institutions, namely, Parliament, the Yang di-Pertuan Agong (or the Cabinet or any other person as determined by Parliament) and the Courts respectively. [Article 39, 44 and 121]
Four, the Constitution confirms that decisions in Parliament are made by a majority; a basic feature of Democracies, and not Theocracies. [Article 62(3)]
Five, the Constitution regards “written law” and “common law” as the applicable laws in Malaysia. Substantive Islamic law is not considered “law” under the present legal framework; it must be legislated for. [Article 160 and 74(2)]
Six, the creation of key religious authorities i.e. the Majlis Agama, the Mufti and the Syariah courts, are all pursuant to laws passed by a secular institution i.e. the State Legislative Assembly. [Item 1 of State List]
Seven, all Ministers of Cabinet, members of the Houses of Parliament and Judges take an oath of office which requires them to “preserve, protect and defend” the Constitution, as opposed to any religion. [Sixth Schedule]
Eight, the Constitution guarantees freedom of religion for all persons. [Article 11(1)]
Nine, the Constitution does not create a Head of the religion of Islam for Malaysia.
Ten, there is no religious qualification with respect to office(s) in Government; thus, a person of any religious affiliation can be a member of the Legislature, Executive or Judiciary in Malaysia.
Hishamudin covered much historical ground in his presentation. In the interest of space, I will not here recount what he said.


It’s enough to say that his grounds included material from the Cobbold Commission Report, the Government Paper: Malaysia and Sarawak, the Memorandum on Malaysia, the Intergovernmental Committee Report, the Government Paper: Malaysia and North Borneo, the Sabah 20 Point Memorandum and the Sarawak 18 Point Memorandum.


The people were awed by Hishamudin’s exposition and presentation. The people agreed that both the state and federal governments have misrepresented the constitution for decades. The people agreed it’s time for the truth to prevail.


Will the Sarawak state assembly take positive action?
I propose they begin by putting up an engraving, in large letters, of Hishamudin’s ten points in the august hall where they meet, and do the same in every school assembly hall in Sarawak.

Rama Ramanathan is an activist for Citizens Against Enforced Disappearances

The views expressed here are those of the author/contributor and do not necessarily represent the views of The Leaders Online.