The following are remarks of Mr Justice Gopal Sri Ram, Federal Court Judge, at the launch of the 2nd edition of retired Justice N H Chan’s book “How to Judge the Judges” on 26 June 2009. LoyarBurok is honoured that we have been, from time to time, allowed to publish his articles. We wish him every success with his new book. We urge all our readers to buy a copy (make it 2, and give it as a present) as soon as possible.
Mr Devaraj, members of the Sweet & Maxwell Asia team, distinguished guests, ladies and gentlemen.
There are very few things that can tempt me to come to Ipoh on a Friday afternoon. One of them is to speak at the launch of a book written by my learned Brother NH Chan. The other is to meet the many friends I have at the Ipoh Bar – a Bar that is a shining example of the unity of lawyers in friendship, something that the lawyers in the Klang Valley can readily learn from.
Now, when I was a student at Lincoln’s Inn, more years ago than I care to recall, we were told that all decisions of the House of Lords were final and there was no further appeal; except to the editorial committee of the Law Quarterly Review. Transposed, mutatis mutandis, into present Malaysian terms, the decisions of the Federal Court are final and without appeal save to the conscience of my Brother Justice NH Chan.
Many have read his writings that appear at regular intervals on at least two websites. Many have described his criticism as scathing. But none have said that it was undeserved. Some of the retired judges whose judgments he has criticised, if they feel unfairly treated, should respond and defend themselves in the electronic media. After all they are no longer bound by the vow of silence that held them when in service. The fact that they have not done so must mean only that the criticism is unanswerable or that their intellect has not been offended. Either is a damning condemnation of the worth of the judgments under review by my Brother.
Having said that may I hasten to say in my defence something about the judgment of the Court of Appeal in the Asean Paper Mill case – a case in which the decision of the High Court and that of the Federal Court stand as pillars of utter disgrace in the field of Malaysian common law. My defence is this. We in the Court of Appeal did not make an error when we referred to section 145(1) of the Evidence Act. What we were speaking about was the fundamental error the judge fell into – an error which a fresh law graduate would not make – relating to the procedure set out in section 145(1) as to proof of the previous written statement. In that case, the plaintiff had failed to prove, as required by section 145(1), the previous written statement of the witness in question. So we were quite right in not referring to section 155(c).
Criticism is part of the environment in which a judge functions. In fact every lawyer and judge is a critic of the errors of others. As a lawyer, you first wait for the opponent’s witness to make a mistake. If he or she does not, then you wait for your opponent to make a mistake. If that does not happen also, you wait for the court to make a mistake. And how does your memorandum or petition begin? “The learned judge erred”. When arguing an appeal, you criticise the findings of the judge or the arguments of your opponent. And when the appellate court differs with the views of the court below, it criticises it.
No judge has been criticised so often and in such strong terms as Lord Denning. In his work, my Brother cites an instance when Lord Denning was called an ass and a justification piece on why he was one. Yet there was no retaliation. That is because of the freedom of speech and the fact that Denning was then a serving judge.
Let us realise that it is only through criticism that we acquire knowledge. Over sensitivity to criticism can only lead to ignorance or worse, intellectual arrogance. But where a judgment is tainted with intellectual dishonesty there is nothing much you can do except to expose the fallacy of the grounds put forth to justify a conclusion already reached before hearing counsel. Fortunately there are not many of them. Most have all caught the critical eye of my Brother NH Chan. He has written in a direct style. His explanations are directed at non-lawyers who, because of the simplicity of the style in which he has written will readily appreciate the points he makes. Additionally, his work contains a wealth of information and miscellany, for example that Blackstone was the first Vinerian scholar at Oxford and that he died shortly after becoming a judge because he was far too obese!
I must now say something about the author. When I began practice, one of the first cases I had to appear in was tried before Pawan Ahmad J at the Ipoh High Court. The late RTS Khoo or Ronnie as he was fondly known was my opponent. After the hearing was over he said he had to rush off to this Club to meet NH Chan. I said that I had heard of this lawyer. In fact, my mentor the late RR Chelliah had spoken with much affection and admiration of him. So, I asked Ronnie how he came to know NH Chan. And he told me this story.
Many here may recall the famous Rahman Talib – Seenevasagam libel case. It is mentioned in the book. NH Chan was one of the counsel for the defendant. During the trial before Hepworth J, points of law regularly arose. The judge used to ask counsel on both sides to turn it up. The following day when the court convened, counsel for the plaintiff would rise and say: “My Lord, my juniors and I have looked everywhere but are unable to find any case in point.” Whereupon, the young NH would rise to his feet and cite 2 or 3 cases directly on point! His hard work and genius made him an instant success.
I have appeared before Justice Chan. I have sat with him. And I can tell you from personal knowledge and best evidence that he is a complete lawyer. His reservoir of knowledge of the leading cases is legendary. It is from him that I learned that Lord Reading had sat both in the Court of Criminal Appeal and the House of Lords in the leading case of DPP v Beard and had reversed himself. It is from him that I learned that a contract breaker may be estopped from raising a new ground at trial to justify his action.
NH Chan has many qualities but of these the one that I found most striking is his complete lack of any form of jealousy or envy. It is a quality not easily found in an imperfect world. None of his criticism has ever been of a personal nature. They have always been and are based on the professional work produced by members of the Bench. And none save those in the abode of the guilty may feel any ill will towards the author of the book which has now arrived at its second edition. The other of his qualities I must mention is his transparent honesty of purpose. A reading of his book reveals it. Many are the judgments delivered or orders made that are wrong. But there are few who would admit to the mistake. My Brother Chan is one. In his book he narrates a case where he cited a person for contempt and readily acknowledges that he was wrong in doing what he did. It requires much moral courage to do that.
Based on his writings thus far and the nature and quality of some of the judgments that will now make their way into the journals, I fully anticipate a third edition.
It is now with pleasure that I formally launch the second edition of “How to Judge the Judges”. It will receive the success that it richly deserves.