LoyarBurok Interview: NH Chan (Part 3)

Loyarburok is pleased to present its exclusive interview in five parts with the incorrigible, irrepressible and inimitable NH Chan. In this instalment, LoyarBurok asks Malaysia’s most famous retired Court of Appeal judge if he has personally encountered corrupt acts by his fellow judges and whether he has sat on panels where the other judges were ‘fixed’.

NH CHAN PerakWhen do you suppose the rot started to set into the judiciary? Did it begin in 1988 with the removal of Tun Salleh Abas or was it later? Why do you think so?

Most would like to think it started with the removal of Salleh Abas. My personal perception is that it started much earlier with Salleh Abas. During Hamid Omar’s time apparently there were appointments to the Bench of persons we never heard of. Was this because of their support for him during the judicial crisis of 1988?

Some sycophants were regularly at his mansion; some even traveled from Ipoh. But the worst period was during Eusoff Chin’s tenure as Chief Justice when the peoples’ perception was that justice could be manipulated by the Executive, the Bar, the Judiciary and even by business people. This unhealthy trend appears to have pervaded to the present day as recent events have shown.

Do you think the majority in Lim Kit Siang v UEM’s Supreme Court decision to be a political decision or one where only the applicable legal principles were considered?

I do not think the decision of the majority was politically motivated at all. It was a decision by 3 pro-government and 2 independent judges. But first let me explain what I mean by “pro-government”.

It is useful to remember that the Judiciary is the third component of government. In a democracy, the government is a combination of the Legislature, the Executive and the Judiciary. As the Judiciary is the third limb of government some of our not too astute judges think that they should be partial to the executive government. But this mistaken belief is unfounded.

The reality is this: the Legislature enacts the statute law; the judges – the Judiciary – have no option but to apply the statute as it stands. But this does not mean that the judges have to side with the executive government at all; they are merely doing their duty, which is to administer justice according to law – in this case it is to apply the statute law.

However, the perception of the general public is that judges do have a tendency to be pro-government when they are called upon to decide on cases between the government and the people. This is a common misconception.

The common people are mostly unaware that the duty of judges is to administer justice according to law so that when they apply the statute law as it stands they are only doing their duty as judges. The judges, if they are true to their calling are, in fact never partial to the government at all; they are independent of it. The perceived misconception of the general public will remain if rogue judges would persist to be partial to the Executive. The bad judges should not add fuel to the fire by perpetuating the misconception by administering injustice as shown by their unjust decisions recently.

So much for statute law where the good judges have no option but to apply the statute as it stands. Hence the misconception to the uninitiated that judges are pro-government when in fact they are not. They are only doing their duty to apply the statute as it stands.

But when it comes to the common law – as all lawyers know – is judge made law there is no reason for the judges to be partial to the executive government at all. Yet, in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, the Supreme Court judges who formed the majority sided with the executive government. Abdoolcader SCJ and George Seah SCJ gave vigorous dissenting judgments. Abdoolcader SCJ was so disgusted with the majority decision that he said, at page 42:

I should perhaps observe that in the course of argument before us I drew attention to three recent cases – Reg v Her Majesty’s Treasury, ex parte Smedley [1985] 1 QB 657, Gillick v West Norfolk and Wisbech Area Health Authority & Anor [1986] 1 AC 112, and Reg v Secretary of State for Home Department & Anor, ex parte Herbage [1987] 1 QB 872 which are in my view highly pertinent to the isuues raised in this matter, but the all-round reaction appeared to be one of complete lack of acquaintance with these decisions which I shall advert to later… (I have supplied the emphasis)

For the gist of his dissenting judgment, Abdoolcader SCJ said, at page 43:

The pivotal issue on which the appeals were actually argued and turned is that of locus standi or standing to sue. The respondent, like his English counterpart in Ex parte Smedley, is a man of many parts, and perhaps of even more. He launched these proceedings in his capacity as specified in the statement of claim as a Member of Parliament, the Leader of the Opposition in the House of Representatives, a State Assemblyman, a taxpayer, a motorist and a frequent user of highways and roads in the country.

I have given judgment in two cases setting out the relevant precepts relating to standing – in the High Court in Lim Cho Hock v Government of The State of Perak & Ors [1980] 2 MLJ 148 and in the Federal Court in Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177 and I see no reason to depart from the principles expounded in these two decisions. The Federal Court approved Lim Cho Hock in Tan Sri Haji Othman Saat and endorsed (at p 179) the concept of liberalizing the scope of individual standing, and these two judgments must be read in the light of the continuing development of the doctrine of locus standi here and in other jurisdictions. I alluded to the necessity of keeping in tune with the times in the development of the approach to the question of locus standi in Tan Sri Haji Othman Saat (at p 179) to this effect:

“Even if the law’s pace may be slower than society’s march, what with increased and increasing civic-consciousness and appreciation of rights and fundamental values in the citizenry, it must nonetheless strive to be relevant if it is to perform its function of peaceful ordering of the relations between and among persons in society, and between and among persons and government at various levels.”

Liberalization of standing has in varying degrees been proceeding or proposed in other common law jurisdictions as I have shown in these two judgments, and it would be a shame if we were to lag behind.

The imbroglio that has arisen in this matter is the result of the myopic obfuscation of the distinction between public law and private law cases. The appellants contend that the principle that is applicable is that laid down in Gouriet v Union of Post Office Workers [1978] AC 435 and Boyce v Paddington Borough Council [1903] 1 Ch 109 which I have dealt with in Tan Sri Haji Othman Saat. (I have supplied the emphasis)

The English courts no longer worry about Gouriet. It has been authoritatively distinguished by the House of Lords in Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617.

Eusoffe Abdoolcader SCJ was a great judge and he ended his dissent with a telling indictment against the majority. He said, p 50:

If this judgment reads in toto aut in partibus like an indictment, let me immediately say it is meant to – against the doctrine of retrogression in the field of public law litigation in this age and at this stage of its evolution.

How true.

In one fell swoop the Lord President Salleh Abas together with Abdul Hamid CJ (Malaya) who was to be Salleh Abas’ nemesis and Hashim A Sani SCJ have suppressed the development of the common law in public law litigation just when it was at the crucial stage of its evolution.

To use an expression of Lord Denning (in Packer v Packer [1954] P 15, 22) “The law will stand still whilst the rest of the world goes on: and that will be bad” for this country.

These pro-government judges of the highest court in the land have by their decision allowed evil to transgress the nation with wrong doings which could be perpetrated unchecked on the feeble argument of no locus standi. Only those who were immediately affected by wrong doings could now have locus standi or only through the Attorney-General who being a government official is not perceived as impartial by many people. Public spirited and caring individuals, like Mr. Lim Kit Siang who have assumed the mantle of ombudsman, have been prevented to seek recourse through the courts on behalf of the people.

Now you can appreciate why I say the rot started with Salleh Abas. During his time as the head of the judiciary and even before that, he was known for his partisan decisions – the government could not lose with him at the helm. If that was the case, then why was he removed? I remember reading somewhere that Prime Minister Mahathir denied that he wanted to remove such a loyal servant – I thought the suggestion was that it was the Yang di-Pertuan Agong who had wanted him put before the tribunal.

Have you personally encountered corrupt acts by your fellow judges?

No, I have not seen it done in my presence. But I have seen signs of opulence like living in a mansion (not in government quarters). The late Chief Judge (Malaya) Annuar sometimes drove to the court’s car park in an expensive car. I remember listening to a talk given by an ACA officer at a Judges’ Conference during Eusoff Chin’s term and a judge in the audience asked about judges driving expensive cars. The officer replied that when investigated such cars were not in the name of the judge. I suppose one should give him the benefit of the doubt. The mansion could be in the name of someone else or it could have been inherited. Or he was rich before he became a judge.

Dato’ Sheikh Daud has over the last few years been attending talks and panel sessions explaining that he was one of those few judges who tried to do something about the corruption in the judiciary. Is there any truth in this? Did he ever approach you to discuss ways and means to limit or eradicate corruption in the Judiciary? Were there other judges like that?

I have not heard of this. But then I hardly mix with my fellow judges. I am not aware that he has been doing this. He has not approached me either. I also do not know if there are other judges like that because none of them have approached me about this. But I am perplexed by your enquiry. If one is aware of the corruption among the judges one should report it. But corruption does not only mean “willing to act dishonestly in return for money or other reward” as explained in the dictionary. Are we speaking of the corruption of power that corrupts absolutely?

My cudgel is against those judges who abuse or misuse power. I suppose I could have cast the net wider. But since I am as much in the dark as you are about this, I suppose I shouldn’t.

Is it easy to be a corrupt judge? Why? Isn’t there any checking being done by the Special Branch or the audit division of the judiciary?

Judges like myself do live in an ivory tower. I sit in my chamber all by myself and there is no canteen in the building where we can meet during the lunch hour. During the time of Eusoff Chin when he was Chief Justice, I have heard of a “nasi lemak breakfast club” where certain judges do flock together. When I retired in 2000, those judges who were not in the nasi lemak club gave me a farewell dinner – Dzaiddin, Shaik Daud, Siti Norma, the late Malek Ahmad and KC Vohrah. It was a small gathering – my wife remembered it as a cosy dinner gathering. Obviously I did not have many friends among my peers. I did not know whether any checking was done. I can only suppose that the Special Branch must have done some background checking without our knowing it before we were appointed.

The theme in my book and in my articles on the Internet is on the corruption of power by its abuse or misuse which will result in injustice. For the epitome of justice is a fair trial with he judge doing it according to law.

Should an honest and capable judge in Malaysia resign because of the poor leadership and corruption in the judiciary or should he or she persevere in there and do what little he can?

He should stay on. If not the bad judges will take over. The good judges, even though there are so few of them, must set an example to our young lawyers who will one day be our future judges. My one-man crusade is to imbue into young minds that there is still hope for our country. I have seen their potential and I am most impressed by what I have seen. Keep up the good work LoyarBurok. (Loyarburok Editorial Note: Emphasis is entirely ours) This is what Lord Denning said in The Family Story, 179:

No matter who it is – who is guilty of the abuse or misuse. Be it government, national or local. …Whoever it be, no matter how powerful, the law should provide a remedy for the abuse or misuse of power. Else the oppressed will get to the point when they will stand it no longer. They will find their own remedy. There will be anarchy.

In this country there is no possibility of anarchy taking over. The general public knows that there are democratic means of doing things. It is the instrument of government both national and local that could be oppressive.

We see it so often in recent happenings in the blatant abuse and misuse of power by the riot police, the MACC, even in the unconstitutional takeover of a legislative assembly and the forcible ousting of a duly elected Speaker in Perak by a usurper with the police and the State Secretary as accomplices.

The judges who should provide a remedy for such blatant abuse and misuse of power have failed the people of this country. If the government of the day still allows their cohorts to use thugs and violent people to oppress the common people of the nation, things will get to the point when the oppressed will stand it no longer. They will find their own remedy. They will do like what the common people of England did in the turn of the 20th century.

They replaced the Conservative government by an earthquake majority in the general election of 1907 with a coalition government of the Labour and Liberal parties – see the Taff Vale case and its aftermath on which I have written about previously.

I implore our Government to desist from using strong-arm methods against the people – listen to the discontent of the people – else the oppressed will change it for them in the next general and state elections. No one wants a dictatorship – the writing is already on the wall!

We must ensure that powers are not abused or misused. And the only way to prevent such abuse or misuse from getting a hold in this country is to have a judiciary of good judges. Lord Denning has put it admirably (ibid, p 179):

“To my mind it is fundamental in our society that a judge should do his utmost to see that powers are not abused or misused. If they come into conflict with the freedom of the individual or with any of our fundamental freedoms – then it is the province of the judge to hold the balance between the competing interests. In holding that balance the judges must put freedom first.”

But where are we to find the good judges? Maybe our hope lies in the country’s young people many of whom have already shown great ability and mettle as lawyers. These are our potential judges. So there is hope still. “Let us prove ourselves equal to the challenge” – is another great quotation from Lord Denning (also at p 179).

Have you sat on panels where the other 2 judges have been ‘fixed’ or you felt were ‘fixed’? What does that feel like if you think have experienced it?

Do you remember Anwar Ibrahim’s appeal against Augustine Paul’s refusal of granting bail to him? Lamin, the then President of the Court of Appeal was presiding and Fairuz, he was a Judge of the Court of Appeal then, sat as a left winger and I sat on Lamin’s right. The argument by counsel was long and technical. Seeing the opportunity, I volunteered to write the judgment. When I sent my draft to the two judges, Fairuz telephoned me. He told me he is writing his own judgment. I asked him why and he said he was unhappy with my judgment as I appear to be allowing the appeal. I explained to him that an appeal against a refusal of bail is not possible so the appeal has to be dismissed. With that he was satisfied and that was how I came to deliver the judgment of the court. If you read the judgment carefully I have pointed out in a convoluted argument that Anwar Ibrahim, although he has no right to appeal when he was refused bail, bail, nevertheless, should have been granted by the judge – the judge was wrong in refusing bail – but then there was no right of appeal in a bail application. He could apply for bail again from another judge. Most of you must have known by now that it is not my style to write in a convoluted way. But sometimes it had to be done.

If I had put it simply that Anwar Ibrahim can try to apply for bail again and this time he should succeed, I am sure my panel would not have agreed. But Raja Aziz Addruse who was counsel for Anwar Ibrahim did not take up the suggestion. I wonder what it would be like if he had applied to KC Vohrah J for bail? As for judge Augustine Paul he was beyond the pale for any hope of redemption. His name shall forever remain in infamy with the likes of the infamous Judge Jeffreys.

Do many judges in the judiciary actively campaign or behave in a way that would make promotion a strong likelihood?

I do not know. I have not done so myself.

Next: In Part 4, find out what inspired NH Chan to go on his one-man crusade and his encounter with VK Lingam.


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2 Responses to LoyarBurok Interview: NH Chan (Part 3)

  1. Pingback: Quote of the Day « The Malaysian Dream

  2. anomie

    Thanks, YH Judge NH Chan.

    U have cleared my chronic neurotic mist about the like of Tun Salleh Abas.

    Should I say this is a case of pseudo-principled man made out of opportunistic time?

    Look like that's case a plenty in the judiciary of bolihland!