When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right-thinking member of the public to criticise him

In the New Sunday Times of April 19, 2009 there appears this astonishing remark (because it is erroneous in law) which was attributed to a Minister in the Prime Minister’s Department:

KUALA KANGSAR: Minister in the Prime Minister’s Department Datuk Seri Mohammed Nazri Abdul Aziz has hit out at Perak DAP chairman Datuk Ngeh Koo Ham for questioning a Federal Court ruling pertaining to Perak.

He said Ngeh should not question the court’s decision that Perak state assembly Speaker V Sivakumar did not have the power to suspend Mentri Besar Datuk Zambry Abdul Kadir and six Barisan Nasional (BN) state executive council members from attending the state assembly sittings. They were suspended for unprofessional conduct early this month.

There was no question of the judiciary interfering in the legislature as claimed by Ngeh as the courts were the best place to seek interpretation of the Constitution or law, he told reporters.

Nazri said the law did not intend to equip a Speaker of a legislative assembly with unrestricted authority.

(emphasis in italics mine)

Everyone knows that Ngeh was talking about Article 72 (1) of the Federal Constitution which states:

72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

But what the Minister was saying is that “the courts were the best place to seek interpretation of the Constitution”.

Now I ask the readers, do you, as a member of the general public, need a judge to interpret Article 72, Clause (1) above?

But when the judges were asked to apply Clause (1) of Article 72, as we have recently observed, they have blatantly refused to apply the constitutional provision as it stands. We know that the words mean what they say. According to the dictionary, the word “interpret” means “explain the meaning of”. I don’t think we need the Federal Court or any court to explain the meaning of Article 72 to us – the meaning is plain enough for us ordinary Malaysians to understand. No one in his right senses would attempt to interpret the obvious meaning of the words in Article 72(1), unless he wants to say the words mean something else as Humpty Dumpty did in Lewis Carrol: Through the Looking Glass, 6 Humpty Dumpty:

“I don’t know what you mean by ‘glory.’ ” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!'”

“But ‘glory’ doesn’t mean ‘a nice knock-down argument,'” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

Alice was too much puzzled to say anything.

Then, like Humpty Dumpty, Nazri made this amazingly naive statement: “the law – [meaning Article 72(1)] – did not intend to equip a Speaker of a legislative assembly with unrestricted authority”. But that was not the point of what Ngeh said. So what if the Speaker was wrong on what he did or said or ordered in the legislative assembly? The supreme law of the land says that “(t)he validity of any proceeedings in the Legislative Assembly of any State shall not be questioned in any court”. This could only mean that all differences which occurred in the legislative assembly could only be resolved by the assembly within the assembly itself. The validity of any proceedings in the Assembly is beyond the reach of the courts – so said the Constitution of Malaysia. The “law” does not mean, as the Minister wanted it to mean, that it “did not intend to equip a Speaker of a legislative assembly with unrestricted authority”. Like Alice, the general public are too much puzzled by such a naive remark.

Anyway, why should a judge be afraid of criticism of his judgment if he has done nothing wrong and he is only doing his duty to administer justice according to law? Judges do not fear criticism, nor do they resent it: see R v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) [1968] 2 Q.B. 150, at p 155 where Lord Denning said:

We do not fear criticism, nor do we resent it.

This is because “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. In the Privy Council case of Ambard v Attorney-General for Trinidad and Tobago [1936] A.C. 322, this was what Lord Atkin said, at p. 335:

… whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

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NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 21 April 2009. You can follow any responses to this entry through the RSS 2.0.

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14 Responses to When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right-thinking member of the public to criticise him

  1. Pingback: When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right thinking member of the public to criticize him – by NH Chan « PSDC

  2. Pingback: When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right thinking member of the public to criticize him – by NH Chan « PSDC

  3. James

    This is the reason why we have slogan such as “MALAYSIA BOLEH” and “1MALAYSIA”. Malaysia boleh means UMNO can do anything they want including getting a stay of execution in cout of appeal with 1 Judge within 1 day and 1Malaysia have to just except it.

  4. James

    This is the reason why we have slogan such as "MALAYSIA BOLEH" and "1MALAYSIA". Malaysia boleh means UMNO can do anything they want including getting a stay of execution in cout of appeal with 1 Judge within 22 hours and 1Malaysia have to just except it.

  5. Raul

    Not surprise most lawyers here or young ones are so naive. Freedom can never be as important as family and rice bowl. You guys have been blinded by opposition esp those who represented PR in Perak. The truth is Ngeh & Ngor are playing the game fr day one! Siva and Nizzar are just mere puppet, dun believe ask them and look into their eyes!!! Pls be rational and intepret the law justly!

  6. Young Chiku

    I am shocked that the 'leaders' in this country are either too stupid to understand a simple law, or so thick-skin that they think they can twist the law.

    I am also ashamed that the majority of the Malaysian, or any ordinary UMNO member, can tolerate such people to be their leaders.

  7. Ak Sarawak

    Justice N.H.Chan,

    TQ very much indeed for your efforts to enlighten us: laymen as well as young and not-so-young lawyers! Malaysia needs righteous, courageous, fair-minded and just people like you! TQ once again. Enjoyed all your insights and analyses! Take K! God bless and keep you and your family.

  8. SRREEE

    Aiyah why so tension wan, tat Nazri pisang teksi fellow got no brain ma, he always talk cock wan. we know the truth wat and now wait la the lion cub of puchong will maul your balls up wen he goes to court wit pandikar`s amins ass in line of fire…..

  9. lady_s

    UMNO did not revert back to its old self but, they were in fact pretending and prying for the right moment to launch their ultimate attack.

    Their arrogance will bring them down; they are arrogant because they are insecure about themselves, not knowing what-to-do and lack the confidence to do anything deemed to be "correct", "right", or "acceptable". They wanna be big bullies, sure, bring em' on. We, the people, can differentiate between the good and evil.

    Our law makers, may it be smart or gifted, they are just puppets among the judiciary system. When it comes to sensitive issues such as this, they chose to ignore the real interpretation or refrain from giving their own judgment. Why? Simply because they are just puppets. Their puppeteers werent making the puppets to perform. Most probably, the puppeteers were [busy] having their daily teh-tariks and roti canais.

    This is a shame to our country, and their acts are a ridicule to our judiciary system.

  10. Sentinel

    UMNO has reverted to its old self. If such statements are not arrogance of the highest order, one wonders what is?

  11. R.Venugopal

    Justice N.H.Chan, you have open the eyes of many in the society to know what the constitution stands for. Itis a document that gives protection to all but the administrators like the judges,AG,Ministers are abusing it. Many a time the laws are interpreted to the needs of the ruling party. It is real shame that not a single serving judge is coming to defend the constitution and educate the failing judges. Judges must bring dignity to the robes,wig and the profession.

    Justice N.H.Chan your articles are educational and give the young lawyers the inspiration to speak the truth without fear or favour. Need more people like you to come forward to enlighten the flaws in the judgement in court.

  12. lawyer lawyer

    Now we all know why foreign investors insist on using foreign law to settle dispute with local partners. All JV/partnership agreements that I have seen stated using foreign law to settle dispute.

    It shows how much faith foreign investors have in our courts of no law.

  13. loki

    we are still reaping the consequences of what mahathir did to the judiciary back in the dark days of 87. these infamous five do not appear — in light of the abberant rulings, whether in the anwar sodomy case 1, or the more recent perak imbroglio — to be the exception. they are the norm, the stupifying norm. what do we call such brazen trangression of justice if not the acts of a kangaroo court?

  14. Maverick

    Fairdinkum ,

    all our law makers in our present ruling government are puppets who are there just to make the numbers. They are afraid to make a noble stand as they would not want to jeorpadise their evasive powers. Looks like the DALANG is having the final say. After all Article 72 (1) says it all ain't the apex statement or some other folk tales like Hikayat Hang Tuah.