by N H Chan
The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand. As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say. Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.
Remember Humpty Dumpty in Lewis Carrol‘s, Through the looking Glass?:
“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.”
So the judges of the Federal Court did the unthinkable. They blatantly refused to apply the constitutional provision as it stands. They ignored it altogether. But by so doing they have committed the cardinal sin of not administering justice according to law. It is the duty of every judge, indeed it is his only function, to administer justice according to law. And the law, in this context, is Article 72 (1) of the Federal Constitution which is the supreme law of the land. Said Lord Denning, What Next in the Law, p 319:
Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.
Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72 (1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma.
They have, so to speak, placed themselves between the devil and the deep sea. Either way their position is untenable. By refusing to apply Article 72(1) of the Federal Constitution as it stands they would be guilty of a misuse of power. As put by Lord Denning, ibid, p 380:
May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly – they themselves would be guilty of a misuse of power.
And, in this country, this could be a ground for the judges to be removed from office. This is what section 2 of the Judges’ Code of Ethics 1994 says:
2. (1) This Code of Ethics shall apply throughout the period of his service.
(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.
And section 3 (1)(d) says:
3. (1) A judge shall not –
(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto;
Judging by the unfair treatment of Nizar in his encounter with the Federal Court, public opinion has no doubt that the judges of the Federal Court has brought discredit to the Judiciary. The words of section 3(1)(d) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk. We know what the words mean. By not administering and applying the law, which in this case is the supreme law, of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.
And if the Government of the day failed to listen to the voice of the people then they have placed themselves in jeopardy of losing the next general election or any bye-election or any State election in the future.
And finally, what about Ramly JCA the judge who had acted with indecent haste when he granted a stay to Zambry of the well considered judgment of Abdul Aziz J. Zambry was appealing against the High Court judge‘s declaratory order in favour of Nizar. Like the judges of the Federal Court, he has not given any reason for his decision. Ramly JCA granted the stay of the declaration which Nizar had obtained against Zambry. The judge was unable to explain why he granted the stay. As any lawyer will tell you it is unusual to stay a declaratory order. If such a stay is to be granted, there are legal arguments to be considered from both sides and the judge will have to say why he prefers the argument of one side as against the other. The people’s perception of him as an unfair judge is the same as that of the errant judges of the Federal Court. Ramly JCA is in no better position than his seniors in the Federal Court.
Lingam, Lingam
Where are thou?
Needed to write judgements for judges.
Justice Chan,
I really enjoy your article which is very informative.
You open up the eyes of the public to those unprofesional judgement.
As I guessed much earlier, they have no grounds for the judgement and therefore could not write any.Aricle 72 is so simple that a standard five pupil can interprete it.
If they attempt to write, their judgement would be the jokes to fellow judges and lawyers locally and internaqtional.
That kind of judgement, any fool can give. Simply say, you are guilty and don;t question my authority.
This shows how low standard they can be.
But Justice Aziz is of different breed. He wrote a long judgement and rule according to the law.
“Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72 (1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma.
They have, so to speak, placed themselves between the devil and the deep sea. Either way their position is untenable. By refusing to apply Article 72(1) of the Federal Constitution as it stands they would be guilty of a misuse of power.” (Retired Justice N H Chan)
“………… By not administering and applying the law, which in this case is the supreme law, of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.” (Retired Justice N H Chan)
The profound knowledge of Justice N H Chan in relation to the Law and the Rule of Law is something which I really admire.
Even though I fully agreed with the knowledgeable Justice Chan that the pro-BN judges had already misused their judicial power by acting against the constitutional prohibition on the court’s interfering and intervening in the Assembly Proceedings of Perak State Legislative Assembly, I would never suggest that the judges who had misused their official power be removed from their office, not even with the proper legal proceedings of setting up a Royal Tribunal Court.
The principle I uphold in relation to judicial independence is quite simple and straightforward. I believe that all judges, including of those pro-BN judges whom I don’t quite like personally, shall always be given the full discretion to conduct a fair trial without fear or favour from any interested group. If the judges have really misused their judicial power, then the news media shall be allowed the total freedom of press to publish the dissenting opinion, the dissident opinion, or even the concurring opinion in relation to the verdict written by the said judges who are said to have committed the immorality of misuse of power.
In order to uphold the concept of Separation of Powers among the Executive Branch, the Legislative Branch, and the Judiciary Branch of the Government, we must learn to tolerate the sin of misuse of power which has been committed by the judges. No matter what, the judges who have committed the sin of misuse of power will still risk the impediment and predicament in relation to their personal career advancement opportunities. This is because the judges who have committed such a sin may be filed a complaint by the public or the Bar Council to the Yang Dipertuan Agong in order to cause the rejection by the Conference of Rulers on the appointment of immoral judges to the top position in the Judiciary branch of the Government.
I believe the Conference of Rulers shall have some inherent moral suasion power during the rulers’ interaction with the Prime Minister, who is vested with the power by the Federal Constitution to make a recommendation to the Conference of Rulers on the Appointment of the Chief Justice of Federal Court.
If we insist that the Legislative Branch of the Government such as the Perak State Assembly shall enjoy total independence and be given total freedom from the interference and intervention of the Executive Branch and the Judiciary Branch of the Government, we shall also uphold that the Judiciary Branch, as represented by the judges, shall be given full discretion to enjoy judicial independence without interference and intervention from the Executive Branch and the Legislative Branch of the Government. Therefore, it is my personal opinion that the judges shall not be posed with the intimidation of being filed a lawsuit for misuse of power or intimidation of being removed from their office by setting up of a Royal Tribunal Court in the course of the judges’ performing their official duty of conducting a legal trial and writting a verdict. However, the judges are still subject to the scrutiny by the public opinion.
Thank you for putting into words what is probably in many people’s thoughts , who have neither the courage nor the authority to speak .
The Perak debacle has unveiled human frailties in the highest offices of the land , and those who have failed to live up to the highest conduct expected of them should honourably resign like the UK ministers .
how can we go against our boss , Amno Zaki … ? no way, get cursed also never mind. —– Messrs Justices … haha … now Ramly , you no promotion for next 30 years …. top management’s order.
With Zaki there …. the court is made to decide. It made a big mockery out of our constitution.
Sir,
I wonder why other retired judges dare not come forward to state their views on the present state of the judiciary and the “gutter judgements” dished out by the courts.
It is remarkable for one retired judge in the person of Chan to stick out his neck to voice out what he believes in. Yes, he can keep his mouth and eyes shut but then there is such a thing as conscience.
[deleted]
Strong words but what else do they deserve?
Frankly as I see it, Judge Ramly does not know how to write the judgement himself. [deleted]
Justice Chan,
are u pro Pakatan or Anwar ? are u really sure u are impartial…
The Judges’ Code of Ethics 1994 should have prevented judges going against the correct interpretation of the law such as Judge Chan has put it “It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand.” But the Code was used by the PM of the day to serve his interest.
The moment a judge has gone against the code while serving government interest at the time, the PM would have a hold on him. So he will have to be continuing serving the interest of the boss like in a secret society where evidence of misdeeds are proof of loyalty. So the collection of usable judges in PM’s secret book grows and he end up controlling all three branches of government.
The Perak debacle is fast providing usable judges for Najib. More are in his secret book as cases go before the court.
Greetings,
\Justice Chan,
are u pro Pakatan or Anwar ? are u really sure u are impartial…\
Justice Chan is one of the representatives of the PR camp, so his stance is very clear. However, he doesn’t ask for more than what a judge shall do. He is only asking for a written judgement from the appeal court judge. I think that the least any judge must do when he/she passes a judgement. I think that is a fair request.
A person tell lie could not write a word of lie, a person tell the truth could write pages of truth.
chengho:
chengho boy, why do you always come here on this blog without your marbles? I always notice that you give only a one liner and then you either quickly flee into the sarong of UMNO, or the underwear of MCA or the sari of MIC.
At least cintanegara and kasim amat dare to play their marbles but you? Where are your marbles? You only play with dolls only? Why like that? Stand on your feet and explain your stand instead of running away quickly into UMNO sarong.
Ha ha ha, vsp, you’re not being fair to chengho.
The fact is, chengho has no marbles.
Go read up the history of Ming Dynasty!!!
kek kek kek
The seriously corrupt state of the Malaysian judiciary must be made known to the international community so that there will be international pressure on UMNO. Innocent citizens are being incarcerated in prison, tortured and killed without any legal avenue for them to defend themselves. Corrupt UMNO and UMNO-linked officials are protected and their cases swept under the carpet. The world must know this and together with right minded Malaysians get rid of evil UMNO and all its cronies. May God bless Malaysia and its righteous citizens.
I guess this can only happen in Malaysia:
An MB ruled legitimate by a Court of law is not allowed to carry out his function.
A “chelob” MB (also ruled by the same Court) is busy carrying his so-called “functions”.
Can anyone explain the logic?
Kek Kek Kek
(Sorry, it’s my toes, they are laughing.)
My 11 year old daughter observed tonight the unfortunate incident where a neighbour gave his daughter a good beating. My girl was distressed, and she could not fathom why he beat her so “severely”. I just said to her, a firm hand of discipline is sometimes necessary, for if a parent were “to spare the rod”, he would “spoil the child”. But the bottom line is, she does not know what is the reason for the discipline.
Very much like our infamous 5, and the hasty appeal court “lonesome” judge. We only get to hear the pronouncement, but they do not see it fit, to give us their rationale. We cannot even accept this in our homes, our workplace, how can we accept this kind of errant conduct of judges?
Judges, you know you are, shame on you!!!
According to ex Judge N H Chan, section 3 (1)(d) Judges’ Code of Ethics 1994 provides that “a judge shall not ….conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto.”
True, a breach of Judges Code of Ethics 1994 may or ought constitute a ground for the removal of a judge from office.
To the best of my recollection, there has been no Malaysian Judge in the annals of Malaysian legal/Judicial history being removed as yet for “conducting himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto”!
So far, to the best of my recollection, the only judges in the annals of Malaysian legal/Judicial history removed – there is a precedent for this in 1988 – were those who had conducted themselves honestly or in such a manner as to bring the Judiciary into repute credit and distinction (at least in the eyes of international jurists and lawyers) – reference is made here to then Lord President Tun Salleh Abas, and then Supreme Court Judges Tan Sri Azmi Kamaruddin, Tan Sri Eusoffe Abdoolcader, Tan Sri Wan Hamzah Mohamed Salleh, Tan Sri Wan Suleiman Pawanteh and Datuk George Seah.Tan Sri Wan Suleiman and Datuk George Seah.
That these judges suspended or sacked had conducted themselves with repute credit and distinction as specified in the Code is vindicated by the government/ de facto Law Minister Zaid Ibrahim proferring them ex gratia compensation last year, 20 years too late when some have already passed on….
Like any Code or law, the Judges’ Code of Ethics seems only as good as those who implement it.
And those who caused these judges to be unjustly sacked, suspended and disgraced in 1988 were never held to account or be punished. Not even after Royal Commission of Enquiry invetigating the Lingam’s ‘korek korek and korek’ video clip!
In Bolehland is there any incentive to be a good and honest judge administering justice according to law when if you do so, you may be marginalised at best, punished at worst, and if otherwise (bodek, bodek) you get rewarded and promoted???
“In Bolehland is there any incentive to be a good and honest judge administering justice according to law when if you do so, you may be marginalised at best, punished at worst, and if otherwise (bodek, bodek) you get rewarded and promoted???” (Jeffrey)
Jeffrey,
The incentive is always there. If a judge truly believes that it is much better for him to store his wealth in the Heaven than to store his wealth on Earth, then he will most likely be able to judge in a fair and impartial manner without fear or favour.
I hope the brave and upright Justice Abdul Aziz who ruled in favour of Nizar will not be victimized by the A-G.
If he is sent to a far flung corner of East Malaysia, I hope he will not resign but bear it for the next 3 years or so until PR comes to power. Then he will get his just rewards and promotion.
It is brave judges like Justice Abdul Aziz which shines a light in the judicial darkness of Malaysia and they are getting very rare.
As for the May 21 Nizar-Zambry court hearing, NH Chan should get his pen ready to write another blastering expose of judicial perversion of the law. It is a foregone conclusion what will be decided by Umno’s puppet judges.
The five infamous Federal Court judges cannot understand Article 72(1) of the Federal Constitution. Hahahahahaha. Even a child can understand Article 72(1) without any difficullties.
The single-handed Court of Appeal judge was unable to explain why he granted the stay of the declaration which Nizar had obtained against Zambry.
Najib, something wrong lah.
“Justice Chan, are u pro Pakatan or Anwar ? are u really sure u are impartial…” (chengho)
justice chan may be partial, but article 72 (1) of the federal constitution is impartial, whoever reads it, be it pakatan or BN.
Your Honour,
Is there a time limit within which the Justices MUST submit a
written reply under the Constitution and Federal Laws? If so, what is it?
Is there a loophole here the cunning Justices can exploit to thy kingdom come?
And if they do not submit a written reply as required by Federal Law & Constitution, who can compel them to comply and how?
Can we e.g. petition the Agung or is it the Attorney General we must go to?
http://donplaypuks.blogspot.com
When I told my wife that somebody’s land in the land department can be transferred without the rightful owner’s knowledge. She was surprised.
When the victim tried to get the court to correct the fault, the court ruled in favour of the new owner. She was not surprised.
What is happening in Malaysia? Everybody knows except the fool.
///If a judge truly believes that it is much better for him to store his wealth in the Heaven than to store his wealth on Earth …./// – on a Judge’s incentive to be a good and honest and administer justice according to law – per Onlooker.
Why would a judge ‘truly’ – looking at all evidence around – believe in storing wealth in the Heaven when he could store it on Earth?…
Wealth in Heaven is but a promise about which a judge has no foretaste here except only a vague notion buttressed by the fervour of faith – if he has faith – whereas the nature of wealth awaiting him on earth is immediate and tangible. So is persecution and marginalisation if one proceeds against the forces of power.
Would the majority of judges sitting in any court delivering the majority judgment be likely to believe in the promise of wealth in Heaven than now on earth? Be realistic!
Remove the people who are misusing and arm-twisting the judges.
Then remove the judges.
Let all of this be remembered, repeated and reread in the run-up to GE13. Then remove BN.
But I hope what the stars foretell will happen – SLIME BALL Peletup MUMgolia out by year-end.
Now it seems that everybody, including judges, is realistic when it comes to wealth. But it isn’t so in every country. Our country is rotting in so many areas, including the judiciary. Even such righteous people like Jeffrey concurs.
Perhaps layman may not quite connect NH’s opinion to the subject title of this thread: Why the FC is not writing judgment on the nizar case?
A judgment is a judgment no matter if it was delivered orally in court (as in all cases) or in writing. For orally delivered judgments judges would in some instances deliver the grounds for their judgments at a later time for those case that have special significance or for lower courts judges, when the judgments have been appealed against.
In general the decisions of higher courts would bind lower courts as precedents. Written judgments and grounds for judgments would serve the useful purpose of guiding lawyers and judges in determining similar cases. This will ensure consistency in application / interpretation of the laws. And if no written judgment was passed and no written grounds were given, this useful purpose would not be served properly.
In nizar’s case a precedent has been set. But no reasons were given. Given the clear contravention of the constitution (as pointed out by NH) and couple with the refusal to state their grounds, one could be led (perhaps mistakenly) to the view that the contravention is nothing less than blatant or even intended. The argument is the judges do not want the obviously wrong judgment to appear in writing anywhere whether in law books or in law reports. So although a precedent has been set, they pretty much intended it to be a useless precedent.
I hope I am wrong. But I am also human and I therefore have my own views of things. Unfortunately I entertain the views expressed above.
In Malaysia we are descending into Najib Uncommon Law, also know of UMNO Uncommon Law, instead of common law.
We can talk about Mahathir high handedness. But, at least he put up a good show. Like when he sacked the judges. He went through lengths to do it and have it well documented, including appointing an international panel and going through the motions. Najib don’t even bother to do this. He is breaking every rule in the book to get what he wants.
How desperate is Umno to hold on to Perak? They can get any decision they want from their puppet judges but are they wiling to give the Agung, Sultans and Governors powers which can be used against them in future? We will know tomorrow!
In my opinion, the answer is YES. Umno is infantile in that the present is more important than the future and immediate rewards are more important than future problems. Mark my words when tomorrow comes.
On the matter of written judgements, Augustine Paul (who is one of the infamous 5 mentioned by NH Chan) did write the grounds for his judgement against Anwar in Sodomy I.
Although he had scolded the chief witness Azizan in court for changing his story many times, his lordship still wrote that even though Azizan was inconsistent under cross examination, his testimony was still “solid as the rock of Gibraltar”
With judges like this, God help us!
P.S. After the Anwar trial, A. Paul who was promoted from judicial commissioner to High Court judge specially to hear Anwar’s case was promoted to Court of Appeal and then to Federal Court, leapfrogging many more senior judges.
We already have a plan for 2013. The Federal Court and the Court of Appeal judges will be asked to resign and take their pensions. New judges will be appointed based on their knowledge of the law, not on their know-who.
They, the Judges of the Federal Court, are setting a very bad example for all the judges to follow, of not writing judgements.
So the judge who was reported to have not written 35 judgements gets away scott free. If big daddy does not do it, he doesn’t have to do it as well. No blame on him. There’s now precedent at the highest level.
It would have been interesting to see how each of the five decided if they were to give individual judgement. Alas it is not to be.
So now judges can say, “My word is law. I don’t have to tell you why I decided so. Just live with it.” Sad.
We have here the comment by a honorable retired judge of the Court of Appeal. This comment is the same of the comments by the general public and as such it should not be just brush aside as rubbish and no worth of reading as some minister might think.
Since the sacking of the Tun Salleh Abbas as Lord President and the subsequent Lingam Gate scandal, the public has lost their confidence in our judiciary system. Many might not agreed with the comment of Raja Petra on our judiciary system, but the comment by NH Chan, the retired judge of the court of appeal in this land should not be ignored at all. His comments further shown the people perceptions are right or at least it was consistent with what the public perceived toward the judiciary of today. While it seem the executive has flex it muscle on the judiciary (at least what it appear to be , though they have been denial by them) and the judiciary has also rot by not stand up to the pressure execute by the executive. Was it that the worldly enjoyment of the status and the monetarily enjoyment that come to be the judges in this land was such an important factor until they willingly commit a moral sin towards the people, towards the trust that God has given them to be the judge of the law made by man himself.? Aren’t each of the judge has their own beliefs, that in future what have they done on his earthly life will later be judged by God that they each belief in? Aren’t we not belief in a set of moral values that each of us has chose to believe in, not with standing how different is the name of that set of values but sure they are universal as the values of moral will be the ultimate true of this universe.
May those judges who has forgotten the moral values, let the comment by the honorable NH Chan be a timely reminder to them as to their duties to discharge the trust that God has given them before they accept the appointment as the judges in this land.
UMNO judges are practicing democracy in the palace of justice. They don’t have to give any reason why they rule (vote) against Pakatan members or in favour BN members. They have absolute right to give any judgement they wish. No question asks.
It all means that Najib does not give two cents to all the judicial reform that Badawi talk about.
It also means that Abdullah Badawi’s talk is NATO.
Mr Pathetic Laksamana(disguised) Cheng Ho,
“Justice Chan,
are u pro Pakatan or Anwar ? are u really sure u are impartial…” – Are you ok? Need a doctor? Or a Neurologist? HA HA HA If Justice Chan is bias, then he won’t be named Justice Chan right? Come on man…You’re pathetically embarrassed! HA HA HA
All in the BN UMNO’s hand! Don’t worry! Sure ‘kao tim’! Crooked also can become straight! Straight sure become crooked!