Scraping the bottom of the barrel for judicial talent

How to judge a judge
– a talk given to the Perak Bar on 7 March 2009 –
by N. H. Chan

The judge’s craft

Before anyone can hope to be able to judge a judge it is essential that he should know about his craft. It is only when you know of the judge’s craft that you will be able to judge the performance of the judges: it is only then that you will know the difference between the good and the bad judges. But before you go about judging them, remember the words of the most liberal of American judges, judge Learned Hand, who once wrote:

“… while it is proper that people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. Perhaps it is only fair to ask that before the judges are blamed they shall be given the credit of having tried to do their best. Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand. (Leaned Hand, The Spirit of Liberty, at page 110)”

So do take the trouble to understand, then, you may severely bring the judges to book whenever they go wrong.

Before I proceed any further, here is something which I think every advocate should know about how thc judge’s mind works. This is universal knowledge which every judge in a common law country already knows. If a judge does not know it already, then he should not be a judge at all. This is what Lord Justice Denning (as he then was) says (see The Malayan Law Journal, [1951] MLJ xx):

“The judges . . . do not consider it their duty to make researches into the laws. They proceed on the fiction that the law is already known to them. They carry it in their breasts if not in their heads and they expound it when necessary for the information of the Bar. They insist, however, that it is for the Bar to thaw their attention to any precedents which have any bearing on the matter, so that they may not expound the law differently from their predecessors or their contemporaries. They require every Barrister in a case to refer to those cases which support his side but also to those which are against him. Then having debated the point in open Court, the Judges lay down the law under the thinly veiled pretence that they are not making new law but only expounding the old.” (The emphasis is mine)

The advocate’s first duty is to the Court rather than his client. By expounding the old is what is known as the doctrine of precedent.

The judge’s craft consists only in the essential qualities of impartiality and the appearance of impartiality and, in the duty to do justice according to law.

The essence of justice

As suggested in my opening of this talk, the two most important qualifications to be a judge are (i) impartiality and the appearance of it, and (ii) to administer justice according to law. Of the two, the most essential and indeed the primary requirement of any judge is impartiality and the appearance of it. This requirement is the very essence of justice itself. It is what judicial sense is all about. The judge who does not appear to be fair; who does not appear to be impartial, is useless to the judicial process. Even though he has given the right judgment, the judge who does not appear to be fair at the hearing leaves behind a sense of injustice to the losing party who will feel that he has been singled out by the judge’s show of partiality. Such a judge is useless to the process and gives a bad name to the courts of his country.

As for actual or real impartiality, every judge will think he is impartial but that is not the point. Most times when an application is made for a judge to recuse himself, a bad judge will always say that he is not bias. This is because he does not know, when everyone else who is a fair-minded person knows, that the point is what Lord Denning has stated in Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577:

“… in considering whether there was a real likelihood [use ‘danger’ as insisted by the Federal Court] of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood [danger] that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood [danger] of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: Nevertheless there must appear to be a real likelihood [danger] of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The reason why these words of Lord Denning are so important for justice and fairplay is because actual or real bias cannot be proofed. A bad judge can always pretend to be fair a he could accept a bribe or inducement secretly. All good judges understand that the appearance of impartiality is the most important element of justice. The appearance of justice means – justice should not only be done, but should be seen to be done.

Every judge, unless he is a bad judge, knows how to apply the famous saying of Lord Chief Justice Hewart in R. v Sussex Justices, ex parte McCarthy: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Here are two well known examples where justice have not been seen to be done.

The first Anwar Ibrahim trial – a travesty of justice

The first Anwar Ibrahim trial (Public Prosecutor v Anwar Ibrahim [1999] 2 AMR 2017; [1999] 2 MLJ 1): the so-called “corruption trial”, had attracted much adverse worldwide attention. It was not the judgment that was criticised (it could even be impeccable) but the way the trial was conducted which attracted so much adverse comment and disapproval from television broadcast abroad and from the international press. The remarks and behaviour from the bench: like when the lawyers for the defence were threatened with contempt of court, in fact one of the lawyers, Zainur Zakaria, was actually charged with the offence, and with the judge being difficult with the witnesses and counsel for the defence at almost every turn of the trial, gave the impression to the media and to those who were there that the judge was one sided. It did not matter that the judge was not. It was the perception of the general public that mattered. As Lord Devlin observed, “The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all” (Patrick Devlin, The Judge, p 3). Mr Justice Augustine Paul (he is now a Federal Judge), like the infamous Judge Jeffreys before him, by the manner in which he had conducted the trial and his shocking behaviour on the bench brought ignominy and embarrassment to the reputation of the courts of this country.

As apparent bias has been shown by Augustine Paul J in the manner in which he had conducted the trial ofAnwar Ibrahim and his shocking behaviour on the bench when he was dealing with the witnesses and counsel for the defence, the judge’s decision to convict Anwar Ibrahim could not stand. The conviction was a nullity. It was void. Despite the invalidity of his conviction poor Anwar Ibrahim was made to serve his sentence of imprisonment. What happened to him was a travesty of justice because of an unjust judge.

In the House of Lords’ decision of Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL (E)) one of the Law Lords was a director of a charity closely allied to Amnesty International which was a party to the appeal. Accordingly, he was automatically disqualified from hearing the appeal for apparent bias. The decision in the House of Lords where the Law Lord had taken part was set aside and the matter referred to another committee of the House for rehearing. Lord Nolan remarked that “in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality”, so that justice could be seen to be done; per Lord Nolan in Ex parte Pinochet Ugarte (No 2) (HL (E)) [2000] 1 AC 119 at 139.

In the case of Paul Jonathan Howell & Ors v Marcus Lees Millais & Ors [2007] EWCA Civ 720 in the English Court of Appeal, Sir Anthony Clarke MR said at para 4:

“4. … The relevant test is now well established. In Porter v Magill [2002] 2 AC 357, especially per Lord Hope at paras 102 to 103, the House of Lords endorsed the approach set out by Lord Phillips MR giving the judgment of this court in Re Medicaments and Related Class of Goods (No 2) [2001] 1 WLR 700 at [85] as follows:

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.’”

The Ayer Molek case another travesty of justice

In Ayer Molek Rubber Co Bhd & Ors v Insas Bhd & Ano [1995] 2 MLJ 734, the Court of Appeal noted that the defendants had already complied with the ex parte mandatory order of the High Court on April 14, 1995. The defendants’ / applicants’ notice of motion to the Court of Appeal for a stay of the ex parte order pending appeal was lodged on April 18, 1995 after the defendants had already complied with the ex parte order. This is what I said in the Court of Appeal, p 742:

“The ex parte order in the instant case which compels compliance of it within two working days and the subsequent conduct of the judge in adjourning the application of the defendants to set aside the exparte order to a date after the period allowed for compliance of the order (without granting a stay of the ex parte order) have effectively deprived the defendants from exercising their right to apply to set aside an ex parte injunction. This misuse of the court’s procedure, in our view is manifestly unfair to a party to litigation before it. This court, therefore, has a duty to exercise its inherent power to prevent misuse of its procedure.

Since the order … of the High Court had already been complied with, it is no longer possible for this court to stay the ex parte order. Not only are the shares now registered in the plaintiffs’ names, they can now also enjoy the benefits of registration: the process of becoming a member and shareholder of a company is incomplete until entry on the register. But, that does not mean this court is powerless to prevent an injustice. The shares although they are now registered in the names of the plaintiffs, can still be preserved pending the outcome of the appellants’ appeal to the Court of Appeal. So we granted an interim order to prevent prejudice to the claims of the parties pending the hearing of the appeal in these terms:

‘Pending the disposal of the appeal, the respondents be and are hereby restrained from enjoying or exercising any rights, including disposingof the shares whether directly or indirectly … described in the ex parte order dated April 10, 1995.’

Thus we have exercised our inherent power to prevent further injustice from being perpetrated”

Now that you are aware of the actual factual circumstances which were before the Court of Appeal, you would be in a position to condemn the decision of Eusoff Chin CJ for what it is – a travesty of justice. Ayer Molek was a case where the judge of the High Court had unfairly favoured one side at the expense of the other. Chief Justice Eusoff Chin being aware of the injustice and unfair treatment meted out by the High Court judge against the defendant company Ayer Molek, nevertheless, acted against the Court of Appeal and set aside its order. If ever there was a case of bias, this is the pinnacle of injustice because the Federal Court upheld the High Court which took the side of the plaintiff litigant Insas unfairly at the expense of thc other defendant litigants Ayer Molek and others. Injustice was Chief Justice Eusoff Chin’s besetting sin. It was beyond his ability to know that his decision could not stand.

The whole duty of the judge is to administer justice according to law

After impartiality and the appearance of it, next comes the judges’s one and only duty or function which is to administer justice according to law on the evidence before him. Lord Devlin in his book The Judge, at p 85 said: “The first – ought one to say the whole duty of the judge is to administer justice according to law”. This means that the judge’s only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.

In his book The Judge Lord Devlin said at p 3:

“What is the function of the judge? Professor Jaffe has a phrase for it – ‘the disinterested application of known law’ (Professor Jaffe in his book English and A merican Judges as Lawmakers, p 13) … It is at any rate what 90% or more of English judges – and I dare say also of all judges of all nationalities – are engaged in for 90% of their working lives. The social service which the judge renders to the community is the removal of a sense of injustice. To perform this service the essential quality which he needs is impartiality and next after that the appearance of impartiality. I put impartiality before the appearance of it simply because without the reality the appearance would not endure. In truth, within the context of service to the community the appearance is the more important of the two. The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all.”

Therefore, the essential, indeed it is the primary, qualities that a judge needs are impartiality and the appearance of it. After that the judge’s whole duty or function is to decide the case according to law on admissible evidence. Lord Devlin also wrote at p 4:

“It is the virtue of the English system that from first to last the judge is exposed to the parties; they do not read the judgment: they see and hear it being made and given.

That is why impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial. The judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails.”

Judicial Commissioner Ridwan Ibrahim – where justice is not administered according to law

In the The Sun newspaper of March 4, 2009 we read on page 1 this startling report:

“lpoh High Court grants injunction sought by Datuk Dr Zainbry Abdul Kadir and the six State Executive Councillors to stop speaker V. Sivakumar from convening any state assembly sitting.

Court also ruled that Sivakumar’s five lawyers have no legal standing to represent him in the case filed by Zambry to seek a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful.”

The objection against Sivakamar’s counsel from representing him was made under s 24 of the Government Proceedings Act 1956. Subsection (1) does not apply because it deals with civil suits brought by or against, in this context, the State Government. Subsection (2) may be more appropriate. It reads:

“(2) Notwithstanding any written law in civil proccedings to which a public officer is a party –

(a) by virtue of his office; or
(b) in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer;

a legal officer may appear as advocate on behalf of such officer …”

Section 2 of the Act gives the following definition:

“ ‘legal officer’ includes a law officer
‘law officer’ means . . . in respect of proceedings by or against the Government of a State or to which a State Officer officer is a party, includes the Legal Adviser of such State”

Subsection (2) of the Government Proceedings Act only applies to civil suits brought by or against a public officer. In such a case, a public officer may be represented by a legal officer which could include a State Legal Adviser. This provision only applies if the Attorney General certifies in writing that it is in the public interest that the public officer should be so represented by a legal officer. This clearly shows that unless the Attorney General certifies in writing that the public officer is to be represented by a legal officer, the public officer will not be represented by a legal officer. So then how could a public officer insist that he be represented by a legal officer if he wants to sue someone, or if he is sued? It is up to the Attorney General to give his written consent whether a particular public officer is entitled to be represented by a legal officer free of charge.

You may ask, or shall I say wonder, how a judge can ever misinterpret subsection (2) of s 24 of the Government Proceedings Act? It is so plain and simple that even a non-lawyer can understand it, but not this judge.

More over, the Speaker of the Legislative Assembly of a State is not a public officer; see Article 132, Clause (3) of the Federal Constitution. It says:

“(3) The public service shall not be taken to comprise –
(a) …
(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State;”

Therefore, s 24(2) of the Government Proceedings Act does not apply to the Speaker and the members of the Legislative Assembly of a State.

Now we all know, except the judge, that Mr Tommy Thomas and his team could not be prevented from representing the Speaker of the Perak Legislative Assembly.

Next is the application filed by Zambry to ask for a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful. The answer is to be found in the Federal Constitution. It is in Article 72, Clause (1) and it clearly states that:

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

Anyone who can read knows that the application of Zambry cannot be sustained. Any reasonably competent judge, or even a layman who can read, can dispose of the matter in a few minutes. But not this judge. I am aware that most of us do not know the Federal Constitution that well, but we can always ask the lawyers who are in the court to tell us the law. I know I would ask them if they know of any provision in the Constitution about this. Straight away a lawyer will tell me that the law can be found in Article 72, Clause (1). I understand that this judge has adjourned the matter to the Federal Court. Why must there be a delay for something so simple as this? This makes us wonder if the powers that be for the appointment of judges are scraping the bottom of the barrel for judicial talent.

Postscript
I read in the New Straits Times of March 24, 2009 that “The Federal Court ruled it cannot entertain applications to interpret state constitutions if referred directly from the High Court. This means an aggrieved party can go to the Federal Court only through the normal appeal process through the Court of Appeal.” Section 84 of the Courts of Judicature Act 1964 only applies to the Federal Constitution but not to state constitutions, And I read in today’s newspapers – 25 March 2009 that JC Ridwan Ibrahim has transferred the case against the Perak assembly speaker Sivakumar to another judge.

(NH CHAN, who is former Court of Appeal judge, lives in Ipoh.)