LoyarBurok Interview: NH Chan (Part 5)

Loyarburok is pleased to present its exclusive interview in five parts with the incorrigible, irrepressible and inimitable Chan Nyarn Hoi or NH Chan as he known, Malaysia’s most famous retired Court of Appeal judge. This is Part 5.

What are the 3 immediate things that the judiciary can do now to improve its quality of decision making and decisions within the short term?

You have two questions rolled up in one. The quality of decision making and the quality of the decision itself. But why do you say that there are only 3 immediate things that the Judiciary can do? I shall try to answer the questions as best I can.

On how to improve the quality of decision making

1. The late Lord Justice Salmon wrote in Some Thoughts on the Traditions of the English Bar:

But remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest.

Salmon LJ was a judge of very great experience and his advice to young members of the Bar should be taken seriously, not only by the young Bar but also by our own judges – judging by what I have seen recently in the atrociously verbose and meandering written decisions of the Court of Appeal and the Federal Court.

Lord Justice Salmon was telling his listeners from the judge’s point of view – that that is how judges arrive at their decisions. If you have been following my articles on the Internet recently that was how I criticized the decisions of our errant judges. The decision maker (here it is the judge) should first discover the points that really matter, then stick to them and discard the rest. This is how quality decisions are made. No beating about the bush: go straight to the real issue or issues – the points that really matter. The judge must be decisive enough to discard the rest. To the advocate, this advice holds true as well.

2. At p 13 of How to Judge the Judges I wrote about the judges who had impressed Lim Kean Chye, the doyen of the Penang Bar, the most. He mentioned HS Ong for very fast hearings. Then he mentioned me – he said: “Then there is NH Chan. The judge who most resembles the London judge. As was the case with HT Ong and HS Ong, I never brought any books to court when I appeared before him; the exception was when the peculiar complexity of the case compelled the citation of leading cases.” Of course Lim Kean Chye was right for saying that – after all 90% of decisions are decided on known law and with known law a judge should not refer to any books. I have explained this phenomenon in How to Judge the Judges, at pp 134-135:

“The fact is that at least nine-tenths of the judiciary spends its life submerged in the disinterested application of known law”: The Judge, p 4. When a judge decides a case on the application of known law, and that is what 90% of judges are engaged in for 90% of their working lives, then the decision is with the judge and not because of the efforts of counsel. Hence the saying ‘of every hundred cases ninety win themselves’. This is because the decision of the judge is made on the application of known law.

Now you know the qualities of a good judge. The good judge is a person who is impartial and who radiates an appearance of impartiality in his court, and who is able to decide cases on the application of known law.

The judge who does not appear to be impartial is useless to the judicial process. Since 90% of his working life is engaged in deciding cases based on the application of known law, it is necessary for a judge to know the law which every capable lawyer must know. Knowledge of the law is an ongoing process and there is only one way to obtain it: through reading the legal journals and the law reports, and textbooks are useful as references. As Lord Coke once told his King that to be “learned in the laws … is an art which requires long study and experience before that a man can attain to the cognizance of it.”

But don’t be disheartened if as a new judge you do not know the law. I have been a judge in all the divisions of the High Court except the Appellate and Special Powers Division. It took me about 2 years before I could gain sufficient knowledge and experience on known law for each division. There are 5 divisions in Kuala Lumpur. I have sat in 4 of them so that it took me about 8 years to be reasonably competent in the known law for each division.

That is why I am unable to understand why some judges were transferred recently before they could have sufficient time to gain the experience and knowledge of the law in any single division. No judge knows everything. Most of the time he has to depend on the lawyers to instruct him on the law, at least for a couple of years before he gained sufficient experience and the knowledge to be efficient.

If you transfer a judge too soon he won’t learn enough to be efficient. I should know because I was in the Commercial Division for about 5 years. In my first two years, the lawyers who appeared before me had to teach me the law. Sometimes, in the early days, I have sat to well past office hours – at times even up to seven o’clock in the evening. Until my interpreters told me that they have a family to go back to and that I should not sit after office hours.

I know Eusoffe Abdoolcader when he was a High Court judge sometimes sat until 8 p.m. I know I had been unfair to the court staff, so I stopped the practice. Before I became a judge, I was in private practice as a lawyer and sometimes we work right through to the early hours of the morning to prepare for a case the next morning. There was no such thing as asking for an adjournment to prepare our submission in reply.

In his book The Judge, Lord Devlin recalled when he was appointed to the High Court in 1948 as a judge:

I had never exercised any criminal jurisdiction and not since my early days at the Bar had I appeared in a criminal court. …Two days after I had been sworn in, I was trying crime at Newcastle Assizes. …Most new judges in the High Court find sooner or later that they have to adjudicate in an area in which detailed practice is unknown to them; they can always rely on a helpful Bar and in my day on an extremely well-informed Clerk of Assize.

F D MacKinnon in his book On Circuit (1940), pp 3-4 said that on hearing his first criminal cases, he sat “with my finger in the index of Archbold [the leading textbook], and I hope my uneasiness was not too apparent”.

Lord Parker, appointed as a High Court judge in 1950 (Lord Chief Justice 1958-71), said that “the first summing-up in a criminal case that he heard was one he delivered himself”: Dictionary of National Biography 1971-1980, p 656.

David Pannick’s Judges, p 69 said:

Sir Neville Faulks explained how, after a successful libel practice at the Bar, he was appointed to be a Judge in the Probate, Divorce and Admiralty Division of the High Court. The only training he had was to spend the Christmas vacation ‘reading very carefully’ the leading textbook on divorce law. As the vacation judge deciding all types of legal dispute, it was, he remembered, ‘fun trying Chancery matters of which I had no experience at all’.

Now you know why a novice judge must always depend a lot on established experts in their field at the Bar for assistance. You can also understand my anger at a JC for spiting Tommy Thomas in a case in Ipoh when everyone knows that Thomas had great experience and who is one of the country’s illustrious lawyers. Such an arrogant individual who knows no law – judging by his performance in that case – should never be made a judge as he will be an embarrassment to the nation for his incompetence. Only fools are unwilling to learn from others. The ignorant always think they know everything.

Next is on how to improve on the quality of the judgment

1. In the Preface to the Second Edition of How to Judge the Judges, I wrote:

The epitome of justice is a fair trial and for the presiding judge to do justice according to law. These are the twin pillars of justice. This is what the rule of law is all about.

For there to be a fair trial the presiding judge must be fair-minded and he must administer justice according to law. If the judge does not do that, then justice has failed. There will be injustice. The judge must be impartial himself and in his court he must manifest an appearance of impartiality – for justice must not only be done, it must be seen to be done.

At page 75 of the book I stress:

After impartiality and the appearance of it, next comes the judge’s sole duty or function which is to administer justice according to law based on the evidence before him. Lord Devlin in The Judge, p 85, said, “The first – ought one to say the whole – duty of the English judge is to administer justice according to law”. This means that the judge’s whole duty is to do justice in the disinterested application of known law.

If these tenets are ingrained in the minds of our judges then there will be an immediate improvement in the quality of the decisions of our judges. Then there is hope for the country.

2. The wise judge knows it in his bones that power can be abused or misused. This is how Lord Denning put it in one of the opening paragraphs of his lectures under the Hamlyn Trust – he called them Freedom Under the Law:

The freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders. It must have powers to arrest, to search, and to imprison those who break the laws. So long as those powers are properly exercised, they are themselves the safeguards of freedom. But powers may be abused, and, if those powers are abused, there is no tyranny like them. It leads to a state of affairs when the police may arrest any man and throw him into prison without cause assigned. It leads to the search of his home and belongings on the slightest pretext – or none. It leads to the Gestapo and the police state. It leads to extorted confessions and to trials which are a mockery of justice.

All the bad Judges should be aware that all those forewarnings of Lord Denning are happening in this country. They cannot pretend to be unaware of the wrongdoings of the establishment and their minions because they cannot fool the common people of this country any longer. They know how to judge the judges. Up to now most of our judges, especially those in the Court of Appeal and the Federal Court have let the people down. It is now left to the remaining judges in our country to do their duty and preserve their place in history as the saviour of the nation. If they omit to do their duty they will surely ensure their names will be placed in the history of this country in infamy. Be assured, I will chronicle their names in history as the bad judges of the country.

“The evil that men do lives after them” in posterity: Shakespeare, Julius Caesar, Act 3, scene 2.

3. Sir Patrick Devlin in his book Trial by Jury, p 164 put it eloquently why trial by jury remains as the grand bulwark of liberty – see also The Family Story, p 162:

The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

Perhaps that was the reason why jury trials were abolished in this country. Hopefully there are still independent judges left in this country who will take the place of a jury when it comes to giving a verdict of “Guilty” or “Not Guilty”, so that justice can still be done. We shall know shortly in the trial of Karpal Singh for sedition if there are any independent judges left.

A jury goes by the good sense of the case. Jurors do not go by the strict law at all. So would an independent judge go by the good sense of the case. As for the strict law – if it is a bad law – an independent judge will try to find a way – if it is at all possible – to alleviate the harsh application of the bad law.

I shall now tell you about the experience of two great judges with a jury.

In The Family Story, p 164 Lord Denning tells us about his experience with a jury. He wrote:

I remember also trying a case at Gloucester when an Army officer, a captain, was charged with murdering his wife. … His wife led him an awful life, nagging and going for him continually. One day, coming back from his course, she went at him so much so that he picked up his revolver and shot her dead – pregnant as she was! Was he guilty of murder or manslaughter? Obviously murder. Words are not sufficient provocation to reduce it to manslaughter. I sentenced him to two years’ imprisonment. All those in the gallery cheered. They had watched the case. They had heard the evidence, as I had done. They knew perfectly well that this man did not deserve capital punishment. That is why the jury found manslaughter only. They do not go by the strict law at all. They go by the good sense of the case.

The next example is about the experience of Lord Mansfield and a jury.

In the above case Mr Justice Denning as the trial judge had directed the jury that it was murder but he also informed them that it was to be their verdict and not for him to decide on it; “It was for them to come to their own decision”. The jury found for the lesser crime of manslaughter. In the case before Lord Mansfield he told the jury the consequence of a conviction; see What Next in the Law, p 24:

… a Roman Catholic priest had said mass contrary to the law of the land. He was tried before Lord Mansfield and a jury. He was undoubtedly guilty as the law then stood. But Lord Mansfield summed up for an acquittal. His final words to the jury were:

“Take notice, if you bring him in guilty the punishment is very severe; a dreadful punishment indeed! Nothing less than perpetual imprisonment!”

The jury found a verdict of “Not Guilty”.

That verdict had a dire consequence for Lord Mansfield. Many zealous Protestants protested. Stirred up by Lord George Gordon, the mob marched on his house in Bloomsbury Square. They torched his house and he lost all that was in it, including his precious library. David Pannick in his book Judges, pp 39-40, wrote about him:

Few judges could hope to emulate the impartiality of Chief Justice Mansfield: he presided, fairly, at the trial of Lord George Gordon in 1781 for alleged treason despite the fact that his own house had been burnt down in the riots provoked by Gordon. The trial resulted in Gordon’s acquittal. But all judges would now decline to sit in judgment on a case where their personal feelings or interests made it impossible for them to act in an impartial manner.

But when there was no jury and the law draconian, Chief Justice Mansfield would find a way to acquit the prisoner. Lord Denning tells us how Mansfield did it in the celebrated case of John Wilkes in The Family Story, p 173:

John Wilkes had published, so it was said, a seditious libel in a paper called The North Britain. He had fled abroad and been outlawed. He returned and himself asked for the outlawry to be reversed, but he was cast into prison meanwhile. He was a popular hero [he reminds us of Raja Petra in this country] and many supported him and urged his release. Numerous crowds thronged in and about Westminster Hall. Pamphlets were issued in the name of the people, dictating to the Judges the way they should decide. Reasons of policy were urged emphasizing the danger to the kingdom by commotions and general confusion. This is how Lord Mansfield answered them when he came to give judgment:

“Unless we have been able to find an error which will bear us out, to reverse the outlawry, it must be affirmed. The Constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences, however formidable they might be: if rebellion were the certain consequence, we are bound to say ‘Fiat justitia, ruat coelum‘ [Let justice be done, though the heavens should fall]. The Constitution trusts the King with reasons of State and policy: he may stop prosecutions: he may pardon offences: it is his, to judge whether the law or the criminal should yield. We have no election … We are to say, what we take the law to be.”

After saying all that with his tongue in his cheek, he then proceeded to find an error on which he could reverse the outlawry. “It was a most technical point,” said Lord Denning, at p 173. “The sheriff had in the formal document referred to ‘my county court’ without adding the words ‘of Middlesex’ as he ought to have done – and for want of those two words the outlawry was held bad and John Wilkes was released.”

In 1986 I was the trial judge who tried Param Cumaraswamy for sedition: P P v Param Cumaraswamy [1986] CLJ (Rep) 606. At the end of the trial I too found a way to acquit him. I could not find any error or flaw in the prosecution’s case but as an independent judge sitting without a jury the verdict of “Guilty” or “Not Guilty” was for me to decide. And my verdict was that Mr Param Cumaraswamy was “Not Guilty” of sedition. Because I had made it as a finding of fact in acquitting Mr Cumaraswamy, there was no appeal against my verdict by the Public Prosecutor who was the Attorney-General at the time.

You have read the judgment of the Federal Court in Nizar v Zambry. Do you agree with the decision or not? Please give us your comments on it.

No, I don’t agree with it. Remember the advice given to young lawyers by Lord Justice Salmon in his article Some Thoughts on the Traditions of the English Bar where he said (see How to Judge the Judges, 2nd ed., p 231):

The Bar also has a great tradition for competence. You must thoroughly familiarize yourself with all the facts and documents of any case in which you are engaged and the law applicable to it. You must consider all the many points that could be made. But remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest. Nothing is more irritating to a tribunal than the advocate who takes every point possible and impossible. To do so is a very poor form of advocacy because the good points are apt to be swept away with the bad ones. Stick to what matters.

This excellent advice is for all budding advocates. But it seems to us ordinary people that this should also be sound advice for the mediocre judges of this country. Any astute lawyer or judge can see at once that there is only one point that matters in this appeal, and that point is whether the Sultan of Perak has any executive power to sack his Menteri Besar and to appoint another to take his place. Yet these five myopic Federal Court judges were unable to see that there is only point that matters in the appeal when every budding young lawyer knows it instinctively. They were in the forest unable to see the wood for the trees. Does this mean that we have a bunch of incompetent judges who sit in the highest court in the land?

Article IV of The Laws of The Constitution of Perak says, “the Mentri Besar” means the officer appointed by virtue of Article XII. Article XII says:

(1) His Royal Highness shall appoint by instrument under his sign manual and State Seal, a Menteri Besar pursuant to paragraph (a) of Clause (2) of Article XVI.

And paragraph (a) of Clause (2) of Article XVI says:

His Royal Highness shall appoint an Executive Council.

The Executive Council shall be appointed as follows, that is to say –

His Royal Highness shall first appoint as Mentri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly; and

He shall on the advice of the Mentri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly;

That was how Nizar was appointed the Menteri Besar. He was appointed by the application of the above provisions following the State General Election in 2008. The provision of Article 16(2)(a) gives the Sultan of Perak the executive power to appoint a Menteri Besar “who in his judgment is likely to command the confidence of the majority of the members of the Assembly”.

Article XVIII (2) is the only other provision in the State Constitution where the Sultan “may act in his discretion in the performance of the” functions stated in Clause 2 of Article 18. Paragraphs (a) and (b) of Clause 2 read:

(2) His Royal Highness may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion) that is to say –

(a) the appointment of a Mentri Besar,

(b) the withholding of consent to a request for the dissolution of the Legislative assembly,

After the Sultan has appointed a Menteri Besar under Article 16(2)(a), has he the executive power to remove him? The answer is definitely no, because the only executive power left for the Sultan in which he “may act in his discretion” after a Menteri Besar has been appointed under Article 16(2)(a) in respect of the Menteri Besar can only be found in Article 18(2) (a) and (b). The Sultan, therefore, has no executive power under the Perak Constitution to remove a Menteri Besar.

Nor has he any power under Article 16(6) and (7) to do so.

Article XVI (6) and (7) say:

If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, …he shall tender the resignation of the Executive Council.

(7) Subject to Clause (6) a member of the Executive Council other than the Mentri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.

By Clause (6) a Menteri Besar who ceases to command the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. But what if any member of the Executive Council or all of them including the Menteri Besar – for the Menteri Besar is also a member of the Council – were to refuse to resign?

Clause (7) provides the answer to this question. It says, “Subject to Clause (6) a member of the executive Council other than the Mentri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.”

Clause (7) clearly shows that members of the Executive Council hold office at the pleasure of the Sultan. The Sultan can remove them from the office of Executive Councillors if they refuse to resign. But the Menteri Besar, once he has been appointed by the Sultan, does not hold office at the Rulers pleasure. Therefore, Nizar once he has been appointed Menteri Besar under paragraph (a) of Clause (2) of Article 16 cannot then be removed from office by the Sultan because under Clause (7) he does not hold office at the pleasure of the Sultan.

Therefore, even if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, the Sultan has not the executive power to remove him as Menteri Besar. That being the case, the only way to remove a Menteri Besar is to obtain a vote from the Legislative Assembly to remove him. Alternatively, the Sultan may dissolve the Legislative Assembly if requested by the appointed Menteri Besar – who is Nizar as he cannot be removed by the Sultan – to do so.

Finally,

DOING JUSTICE is the only duty of a judge. INJUSTICE IS NEVER HIS DUTY. It is never the function of a judge to be unjust.

But then how do the judges know what is the right thing to do? This is how I answered the question in How to Judge the Judges, pp 102, 103:

There are no two ways about this. When it comes to choosing between right and wrong; between justice and injustice, there is only one choice or nothing at all. To all right thinking people, lawyers and judges alike, right or wrong matters, justice or injustice does matter. … This is about doing justice according to law where there can be no place for injustice. Injustice is not an option here because the judges and the lawyers are all responsible to the community at large. They must seek to do their part “to see that the principles of the law are consonant with justice”. They must not fail in their endeavour to do justice for failure will forfeit the confidence of the people. As said by Lord Denning, “The law will fall into disrepute; and if that happens the stability of the country will be shaken”. To quote Professor Faruqi, we need “to advance justice and maintain its stability”. For “no one can calculate the aggregate amount of evil inflicted on the community” by a bad decision: John Lord Campbell, Lives of the Lord Chancellors (5th edn, 1868), Vol 2, p 381; Vol 4, p 254: Pannick’s Judges, p 63.

When it comes to truth and justice, there is never to be any choice at all because falsehood and injustice must never be the alternative. It has to be Hobson’s choice. So that for those who do not know right from wrong; who do not know justice from injustice, such lowly individuals should never be allowed to sit on the seat of Justice. They should never be allowed to be judges at all. And yet there are so many of them in the judiciary today ever since the rot begun.