By NH Chan
Postscript
On Tuesday, July 7 2009 I posted an article under the above title on the web with various news portals. At that time I only have the written judgments of two of the judges Raus Sharif and Ahmad Maarop JJCA. I have just received the third judgment that of Zainun Ali JCA from Mr. Edmund Bon of loyarburok.com through Mr. Ngan Siong Hing of Ipoh for which I am most grateful. Below is my critique of the written judgment of Zainun Ali JCA.
The points that really matter
As I have said it before in the first part of this article, there are only two points that really matter in the appeal of the case in question. They involve the reading of two clauses in Article 16 of the Perak Constitution and an understanding of what the clauses mean. A very experienced judge, the late Lord Justice Salmon in a talk which he gave to young members of the English Bar (Some Thoughts on the Traditions of the English Bar) said:
…..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.
Actually, Salmon U was revealing to budding advocates the mind of a judge. The young advocates are informed, before they embark on their career, that a judge makes his decision by discovering the point that really matters or, exceptionally, the points that really matter. This revelation should place aspiring advocates on the right direction to becoming good advocates.
If a judge misses the point or points altogether, the whole decision becomes nothing but gobbledygook if it is unintelligible or a regurgitation of a lot of information on the facts and the law without understanding them. A decision which does not decide on any point that really matters is not a judgment at all. A decision which misses the point altogether is merely the extraneous ranting of an incompetent judge. At best, the legal principles described in the decision may be described as nothing more than obiter dictum or dicta; but if it is just to repeat known law (which is unconnected to any point in issue) as was done here in most of the judgment of Zainun Ali JCA, it is not even dicta. In truth, such a decision is useless because it cannot be cited as an authority as it is only regurgitating what is already known. But a decision that misses the point or points altogether is no authority on the issue or issues before the court. Because the decision did not decide on the issues or points that matter, such a decision is at best merely obiter dicta (the Latin phrase means “incidental”). Professor Andrew Harding in his essay Crisis of Confidence and Perak’s Constitutional Impasse gave an illustration of such a situation in Amir Kahar (Sabah, 1995) which the High Court judge in the present case had distinguished. This is what Professor Harding wrote:
Amir Kahar, [the High Court judge said, was correct on its facts but did not raise the issue in question as the Chief Minister of Sabah in that case had in fact resigned and the only issue was as to the effect of his resignation with regard to the rest of the Cabinet; accordingly the court’s views in that case on the issue of confidence were merely obiter dicta (incidental).
If a judgment decides on the points that really matter, the judgment which decides on those points is described as the ratio decidendi of the decision (this Latin phrase means “the reason for a decision”).
The incidental part of a judgment which does not form the reason for the decision (the ratio of the judgment) is an “obiter dictum” (plural “obiter dicta”). This Latin phrase means “incidental”. An obiter dictum is never cited as an authority for the proposition it states, although an intellectually dishonest judge would treat it as such, in the hope that the reader would take his word for it and not read the whole judgment that he has referred to in support of his proposition. Sometimes an obiter dictum has much persuasive value depending on the standing of the judge. Such obiter dictum may sometimes be adopted by a judge as his judgment in an appropriate case. Only the ratio decidendi of a judgment can be used as authority for the proposition that it states. But the remarks which are incidental to the decision are obiter.
Let us now expose the fallacy of the judgment of Zainun Ali JCA
The judgment is 115 pages long – it is like using a blunderbuss to shoot at a target, scattering shots in all directions, and not hitting it. It is the longest of the three. Most of it has nothing to do with the two points that really matter in this appeal which we know are Clause (2)(a) and Clause (6) of Article 16 of the Laws of the Constitution of Perak. And when she does come to the two points that are the real issues in the appeal she misses the points altogether by giving a wrong reason for them.
Here at page 12 is an example of irrelevant writing. This is what she wrote, p 12:
Inclined as is the Federal Constitution towards the Westminster structure, it has its own peculiarities. The Westminster model is not to be found in one document, but could be seen in bits and pieces in the Magna Carta, the Bill of Rights, the Act of Settlement and a series of Parliament Acts. Conversely, the Federal Constitution however is embodied in one document and gathers unto itself various sources of law some of which are implicit. The unique presence of the written law, shot through with informal and unwritten sources in the form of conventions, prerogatives, discretionary and residual powers as such, help ensure the continuation of constitutionalism and the rule of law. Thus the sources of law in our Constitution are several. Article 160(1) of the Federal Constitution says it all. “Law includes written law, the common law, insofar as it is in operation in the Federation or any part thereof and any custom or usage having the force of law in the Federation or any part thereof”
I think I should stop here. Enough is enough. I don’t think we, neither the reading public nor myself, can stomach any more balderdash. You can pretend to be erudite by regurgitating unconnected material of facts and jumble them up. You can even misread the history of England like not knowing the different period in history between the feudalism of the barons and a despotic king in Magna Carta and the Act of Settlement which came about after King James II fled the realm and the ascension of William and Mary to the throne of England. Unless you can connect the leap from thirteenth century England to the Act of Settlement in 1701 some four hundred years later, then everything that is said is nothing more than pretended erudition.
What is Magna Carta?
I shall start with Magna Carta since she mentions it first. In order to understand the significance of Magna Carta in English history, it is necessary to know the difference between feudalism and despotism. The Charter marked the first step in the resistance by the barons to the despotism of King John in the thirteenth century. As Trevelyan wrote in his History of England, illustrated edition, p 199: “For feudalism is the opposite of despotism…. … The barons and knights were protected from the king by feudal law and custom. When [the king] claimed service, aids or reliefs on a scale larger than the custom allowed, they resisted him on point of feudal law.” Trevelyan tells us, “The resistance to royal despotism in the thirteenth century was successful because the feudal class, unlike the squires of later times, was still to some extent a warrior class. . . they all had chain- armour and war-horses, some had gone on the Crusades, and many lived in a state of chronic skirmishing with their Welsh and Scottish neighbours. That is why the barons of Magna Carta … were able to put up a fight against the King.”
I shall now let Lord Denning take up the story in The Family Story, Butterworth, 1981, p. 229:
On May 5, 1215, many of the Barons openly rebelled against the King. They renounced their fealty [loyalty in feudal times] to him. . . . On May 12 he [King John] ordered their estates to be seized. But the Barons marched towards London which, on May 17, opened its gates to them. This was decisive. The Barons, with the support of London, had the whip-hand. John had to sue for peace. . . .At length a truce was arranged from June 10 to June 15.
The first meeting at Runnymeade was on June 10, 1215. There were present King John, the Archbishop Stephen Langton, and some baronial envoys. At this meeting the Barons presented their demands and the King submitted to them.
At p 230:
On June 15 the truce was due to expire. On that day the parties assembled in great numbers at Runnymede and agreement was reached on all points. The King and those present all solemnly swore to abide by the agreement. This day was regarded as so important that, when the Charter was afterwards drawn up, it was given the date, June 15.
At the bottom of page 230 and at p231:
The peace did not last long. In a couple of months the parties were again at war. The King looked for aid to Rome. . . .August 24, 1215, Pope Innocent Ill purported to annul the Charter. . . .he excommunicated the English Barons… But John’s death on October 12, 1216, at Newark Castle, altered everything. Early in the reign of the young King Henry III the Great Charter was confirmed by his regents. In the yeas 1225 it was re-issued by the King himself under the Great Seal. Magna Carter then took its final form, word for word, as it stands today as the earliest enactment on the Statute Rolls of England.
The Great Charter dealt with grievances of the time in a practical way. It gave legal redress for the wrongs of a feudal age. But it was expressed in language which has had its impact on future generations. It put into words the spirit of individual liberty which has influenced our people ever since.
……
We find set down in the thirty-ninth clause the guarantee of freedom under the law [all the clauses of the Magna Carta were in Latin; the translation is by Lord Denning]: (No free man shall be taken, imprisoned, disseized [deprived of feudal interest in land], outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land).
Immediately following, in the fortieth clause, is the guarantee of the impartial administration of justice [in Latin; Lord Denning gives the translation] (To no one will we sell, to no one will we deny or delay right or justice).
At pp 231, 232:
The constitutional significance of Magna Carta is immense. It was thus measured by Bryce: ‘The Charter of 1215 was the starting point of the constitutional history of the English race, the first link in a long chain of constitutional instruments which have moulded men’s minds and held together free governments not only in England, but whenever the English race has gone and the English tongue is spoken’. When the colonists crossed the seas from England to countries the world over, they took with them the principles set down in the Charter. Those who went to Virginia took its very words. When they renounced their allegiance in 1776, they stated in their Declaration of Rights that ‘no man be deprived of his liberty, except by the law of the land or the judgment of his peers’. Thence the provisions of the Charter found their place in the Constitution of the United States. There it is revered as much as here.
The Bill of Rights 1688 and the Act of Settlement 1701
For this Lord Denning has put it succinctly in The Family Story, pp 192, 193:
No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges . ..The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.
Why do the English people feel so strongly about this? It is because it is born in them. We know in our bones that it will not do for us to allow the executive to have any control over the judges: and we know it because our forefathers learnt it in their struggles with the kings of England – the kings who in the old days exercised the supreme executive power in the land. Ever since the Act of Settlement in 1701 it has been part of our constitution that a judge of the High Court cannot be removed except for misconduct. Secure from any fear of removal, the judges of England do their duty fearlessly, holding the scales even, not only between man and man, but also between man and the State. Every judge on his appointment takes an oath that he ‘will do justice to all manner of people according to the laws and customs of England, without fear or favour, affection or ill will’. Never since 1701 has any judge failed to keep that oath.
………
The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May says: ‘What is said or done within the walls of Parliament cannot be enquired into in a court of law’. The Bill of Rights 1688, art. 9, s 1, says:
“That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”
Now you know why I think she does not understand what she is saying. If she does understand what she wrote then she would not have decided the instant appeal in the way she did at the conclusion of her overlong judgment.
But what has all this got to do with the two clauses in Article 16?
But the most important point of all, after 114 pages of mumbo-jumbo that she wrote, is this: What has all this got to do with the two clauses of Article 16 of the Laws of the Constitution of Perak? The United Kingdom does not have a written Constitution and in order to understand it fully one should be well acquainted with the history of England. Whereas Malaya and later Malaysia has a written Constitution which may be changed by a two-thirds majority in Parliament. But, here in this appeal the lady judge is, and should be dealing with, the two points that really matter which are the two clauses of Article 16 of the Perak Constitution.
After having said that, I shall go straight to the points at issue. How did she answer them? It took her 114 pages of circuitous writing before she finally came to the wrong conclusion that “His Royal Highness had ….. . rightly exercised his constitutional powers as provided for and under the Perak State Constitution solely for the best interests of his subjects”. I am stunned by her naively. I am at a loss for words. We all know that there is no provision in the Constitution of Perak which provides constitutional powers to the Sultan to act “solely for the best interests of his subjects”. For this judge to say that there is such a power when there is no provision in the Constitution of Perak for the Ruler to have such power is to mislead the uninformed public. A judge who misleads cannot be trusted. She has disgraced herself on the seat of justice.
Professor Andrew Harding took up 4 pages and Professor Kevin Tan 5 pages to come to the correct conclusion. Sometimes I wonder where these recalcitrant judges read law. I have a theory. One way is to memorise all the lecture notes – when I was a student in London I heard that many of our students memorized the notes supplied by Gibson and Weldon and passed their examinations. They forget that Law is a reading subject. Ever heard of the expression, we joined a university or the Inns of Court to read law? You study mathematics or science but you read law.
After meandering for 114 pages she concluded, p 114:
Thus I share the view expressed by my learned brothers Raus Sharif JCA and Ahmad Maarop JCA that in the context of this appeal, His Royal Highness had in the critical situation rightly exercised his constitutional powers as provided for under the Perak State Constitution solely for the best interests of his subjects. This decision being unanimous, the orders are as comprehensively set out in the judgment of my learned brother Raus Sharif JCA.
What I have said in my severe critique of Raus Sharif and Ahmad Maarop JJCA in the first part of this article applies, mutatis mutandis (allowing for the appropriate changes), to Zainun Ali JCA. Need I say more. I am as much disgusted as most of you are of judges of such inane quality. In the present context, “learned” is a funny word. I know some of you may say that the word is only a title applied in referring to a member of the legal profession. It has no meaning. I hope so, otherwise it will mislead the public further.
I’m enjoying NH Chan’s articles. I only got as far as the first quoted paragraph from Zainun Ali JCA before deciding I’d better refill my coffee cup. Gobbledegook and balderdash seem fairly levelled so far. That first quote is drivel of the lowest degree.
While we’re in the mood for also considering “a good English”, ‘the unique‘ ought to warn the writer that the verb ‘help’ should take its third person singular (‘it helps’), not plural form. It’s not even grammatically correct drivel so far.
I don’t mean to add insult to injury, just adding to the LKS blog “English as she is truly spoke” collection.
Maybe it’s more apt to say
“English as she is truly broke” in the Malaysian context?
Most likely most of these judges were promoted under the Ketuanan philosophy.
“Gobbledegook and regurgitation”. Are you referring to TURKEYS?
Total about 300 pages of pure nonsense. All unnecessary and nonsensical foreplay and still miss.
As I said previously, you ain’t seen nothing yet. Wait till this reach the Federal Court. I am expecting Augustine Paul to be called to do service once again. Can’t wait to read his usual lengthy nonsense which he is reknown for.
God help 1Malaysia.
NH Chan writes: I am stunned by her naively.
At first I thought you meant “I am stunned by her naivete”, but I can’t help wondering if you mean that you have discovered – at great age and after long service – that the magnitude of her error is so great that you had thought it impossible.
You study mathematics or science but you read law
I don’t know if you ever saw the BBC TV quiz show “University Challenge”. The contestants were always introduced “Joe Bloggs reading Chemistry, Ali Munni reading Law”. Intellectual pursuits have a great deal in common once you get past remembering times tables and what elements make which stinks. I’m not hurt or anything, but being very highly qualified in Engineering and Computing, the common conception that you’re just a nerd that has memorised a couple of catalogues does wear a bit thin.
It’s a good article. I think those judges have learned us all something.
///“His Royal Highness had ….. . rightly exercised his constitutional powers as provided for and under the Perak State Constitution solely for the best interests of his subjects”. ///– Zainun Ali JCA
///We all know that there is no provision in the Constitution of Perak which provides constitutional powers to the Sultan to act “solely for the best interests of his subjects”. ///–N H Chan JCA
According to the law as explained by NH Chan, Zainun Ali could have said that HRH had rightly exercised his powers solely for the best interests of his subjects, because he is the hereditary Ruler unlike appointed Governor. Further the powers of HRH were derived from the subservient statements of BN rulers for claiming that the wishes of the Ruler had to be obeyed at pain of treason charges.
But Zainun Ali chose to expose his ignorance of the law, or her inability and incompetence to apply the written law. Yet she mentioned in the long write up that Malaysia has the convenience of law written in the Perak State Constitution. One might be timid to do the wrong thing alone. She might be emboldened in the knowledge that he is in company of three. That shows the power of numerical strength.
///No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges./// — N H Chan quoting Lord Denning in The Family Story, pp 192, 193:
We are not sure whether the powers-that-be need to exercise their influence on individual case. The Lingam tape shows that judges might take it their responsibility to look after the interest of the powers-that-be, as their own interest. As the words of judges at the crucial place are worth more than their weight in diamond, the symbiotic relationship between judges and the powers-that-be would certainly breed despotism. Judges are then condemned to be servants of the tyrant.
Just pretend that those judges are students sitting for an essay exam with ending paragraph
“……His Royal Highness had rightly exercised his constitutional powers as provided for and under the Perak State Constitution.”
With the above conditions, you can only:
1. Lie
2. Ignore
3. Confuse
Why the essays are so long? – Choice #3 is a safer bet.
After several months’ observation on the course of development of Perak fiasco, I am inclined to predict that the proponents of the concept of “Ketuanan Melayu” are trying to allocate much more powers to the constitutional monarch pertaining to choosing an administrator to assume the post of the Head of the Executive Branch of the State Government, i.e. the post of the Menteri Besar.
Allowing the monarch too much power in appointing a Menteri Besar as well as in dismissing a Menteri Besar is a very dangerous political tendency. If the Court of Appeal Judges are allowed to drop judgement in accordance with their wishful thinking and not in conformity with the requirement for them to administer justice according to law, then the judges will be able to turn themselves into the uninvited law-makers who will enjoy the limitless power to make law by setting a case precedent. For instance, the Court of Appeal judges may give the Sultan the power to dismiss an incumbent Menteri Besar, even though such power has never been given to the Sultan by the state legislature nor by the state constitution. By giving to the Sultan such a huge power as the power to dismiss an MB, the judiciary branch of the government will effectively build up a symbiosis ecosystem between the judiciary branch and the monarch. Based on the symbiosis framework, the Sultan will ensure the career stability and job security of the key judges of the judiciary system. In return, the Sultan will continue to enjoy a high degree of absolute power which has been given by the Court of Appeal judges. This breeds the revival of the despotism!
Speak…write and talk so that everyone can understand you is good enough English.
In commercial firms…bosses need not master Queen’s English.
If they do….hundreds of Secretary will be out of job.
They dictate and Sec know how to format the sentence into Queen’s English. That’s my secretary job.
What one must master..is creativity…great management..systems…initiativeness and lots of commonsense…just to name a few…and English is last.
Journalist…reporters…political personalities need to be excellent in English and Bahasa. That’s their rice bowl.
Men in the streets….speak and be understood…that’s good enough.
The frightening part is that they all appear to believe that what they wrote is right and just.
I suppose medals and honours are in order.
Change the government…then get the Constitution amended to clear and simple…what Rulers are empowered to do or cannot do.
53 years…UMNO have rojak the Constitution with so many amendments.
Just look at USA lawmakers….always refer to the Letter of Independence..one page..wrote 200 years ago…no adding or altering and they argue based on that document.
And their laws do not have so much amendments.
UMNO is simply managing to win votes..to make sure…they have immunity from all things..spoken.. done or act upon…more than a Ruler…high above Allah.
Live with it….till 13th GE.
No matter how smart or how truthful you are…UMNO always have the last words and that’s it…their words are final.
I guess that’s why lawyers read law and learned lawyers practise mastery of the art of obscurantism when they become judges.
No wonder they took so long to come up with “judgements” of more than a hundred pages – before you confuse others, you need to befuddle your own brain – maybe like get into a “fuzzy logic” mode.
Maybe I should not comment thus – my son just passed his law degree!
NH Chan should join Pakatan , stay the inside…oop…
NH Chan’s use of “naively” instead of “naivete” was likely a typo error from deficiency in editing than English!
We may not agree with all of N H Chan’s views or interpretation of law but he is alright. He has good intentions.
The country is at the crossroads. After March 08 GE those of us alienated with the established political order are excited with prospect of imminent change led by the Opposition. Then came a slew of apex court judgments buttressing the position of the incumbent government against Opposition/dissidents. Average Malaysians want to understand the judgments. We are bewildered by their language, rationale and conclusions.
Here’s where our retired judge comes in to play a part. He writes articles non- stop on Perak. He participates in forum. He is trying to bring to Malaysians an understanding of the law that impacts so intimately their lives. He cares not that he courts controversy or incurs the wrath of the powers that be in this process. He is already 74. “He lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp” (The MalaysiaInsider). Even as a sitting Court of Appeal Judge, he was not afraid to make a broadside against the Establishment – his famous quote of “Something is rotten in the state of Denmark” taken from Shakespeare’s Hamlet in the case of Ayer Molek Rubber Co. Bhd v Insas Bhd, a reference to the state of affairs in the courts then housed in Demark House along Jalan Ampang KL!
It is not easy to explain law to most of us uninitated even for one such as Chan who was a lawyer for almost two decades before becoming a High Court judge. There is a reason for this. The life of law is not just common sensical reasoning. It is also underpinned by precepts of how language of statute is to be interpreted. Most times we don’t understand why there is slavish adherance to past judicial decisions/precedents or other times a stark deviation from them. “Ratio decidendi” and “obiter dictum/dicta” are legal/latin gobbledegook until NH Chan comes along to explain that they mean “reason for a decision” and “incidental” (in reference to a judge’s observations) respectively – the grasp of which enables us to better understand why sometimes a past decision is followed due to applicatuion of ratio and obiter, and other times departed from.
His liberal citation of Lord Denning gives a perspective of the spirit of common law, the importance of judiciary as bulwark against executive interference and encroachment of fundamental liberties.
He also expresses his views of what makes a good judge. Being sound in legal techicalities and reasoning is important but not enough if one has not the impartiality and integrity to say the law as it is without fear or favour uninfluenced by political bias and pressures. In fact these very strengths of legal knowledge and logical reasoning could be hijacked to serve unmeritorious ends of the few in power and well connected against the powerless, disenfranchised multitudes.
The sad fact is Malaysia is a great country for those connected to power (regardless of race and religion though that has only a part to play in the sharing proportion). It is not so for many others : the many unconnected and the average employees live lives of quiet desperation, struggling to get up buses (and LRT if in KL) go thorough traffic jams, trying to make ends meet to raise families, get scolding from bosses at work and then suffer the insolence of political gobbledegook from our politicians.
Not often but sometime we look to the law for some hope and change. N H Chan helps to explain some part of it to us. We should be grateful for his effort and contribution (whether or not we agree with the specifics of what he says). Lets not deride his English!
Sometime I just wonder why this country can achieve greatness with all those wonderful and talented people but have fail miserably. We have come to such s stage that the judiciary has come to such s stage which is very sad indeed.
There seem to be no laws though we have inherited the British law since independent.
It was very sad in deed our country has deteriorated to such s state where people has cast their doubts on the judiciary and worst no efforts seem to come forth to make amned.
The present situation pleases UMNO very much…with IGP and so many judges favouring them.
Do you know how hard Najib is trying to be the best PM in Malaysia?
Just look at the 100 days..no sleeping …non stop working.
Does UMNO care for public opinions and safety?
It is getting UMNO to govern forever and ever comes first….always in their mind….by hook or by crook.
Hooking for votes…like fishermen…and are cooks…stealing from us..using the money to bribe ..buy politicians and Malaysians….as money is all powerful to the devils.
Make no mistake about it.
We are dealing with world first class crooks….all because so many Malays and few undignified …scums of the earth.. low class worms…politicians from other races…support them…making UMNO brave to keep dividing races…to rule.
They love money…..not God.
And Malaysia is a land of plenty….so they steal and grow fat …like kings.
Public opinions can go to hell….if it makes UMNO looses votes.
That’s the fact. Live with it.
Nobody is deriding his English, Jeffrey. There’s an alternative reading to what you call a typo that gives his opinion a greater weight. I suspect it’s a typo, too. I have wondered with some of his previous articles if someone was transcribing them, as the level of typos seems to vary greatly.
I derided some English that wasn’t his. I know I shouldn’t “kick a man when he’s down”, perhaps I was overtaken by pack instinct. I do feel some shame, possibly more than the original writer.
The last wasn’t derision. I spotted an attitude often taken by those qualified in non-science subjects. I was merely protesting “don’t oppress me, bro!”.
NH Chan’s is a positive contribution, no doubt. Some might think that all criticism is negative, but that kind of thinking leaves one unable to improve. The sad thing is, we can criticise from the comfort of our PC keyboard, and nothing seems to improve. When will the improvement come? GE13?
GE13 changes only the faces in government, not the judiciary. If I understand NH Chan correctly, if the government can influence the judiciary, there is a problem. If the government cannot influence the judiciary, how can problems in the judiciary be solved? Are we to understand from what NH Chan writes that some judges should no longer be judges? Who could bring that about?
OrangRojak, i think it is typical of you to point out English mistakes when you fully know it could unintentional. Even if we make mistakes, so what, at least we are not British or Americans who only know one language. By the way, your English sucks also, you write Courtney English.
///If I understand NH Chan correctly, if the government can influence the judiciary, there is a problem///.
Most human beings including judges are not free bias – whether for or against government or opposition. (I don’t think even N H Chan could himself claim that he is 100% free from bias in favour of the Opposition).
The truth is it is hard to find a person or judge who is totally 100% impartial to pronounce the law as it is (without fear or favour to any side). One can only aspire and endeavour to be as objective and free from bias as possible when one is a judge.
How does one pronounce the law “as it is” and free from any tinge of bias when often the law itself is not clear? It is expressed in words and words are not instruments of mathematical precision.
Also the law is very wide. Ideas and values (whether liberal or feudal) are interconnected in a seamless web. It depends on whether the judge has an integrated knowledge of the large and small pictures so as to be able to zero in on that one crucial question and all relevant factors bearing on it upon which the case stands or collapses!
It also depends on whether the Judge is assisted well by competent lawyers engaged in the duel of wits and arguments supposedly backed by research on relevant law in an adversarial system.
The point N H Chan laments of the judiciary is not just deference to the Executive/Government’s position. The problem is deeper: it is about competence!
His writing above is replete with examples of incompetence. He touches on the inability to distinguish relevant from the irrelevant.
Other examples from excerpts: “.. The judgment is 115 pages long – it is like using a blunderbuss to shoot at a target, scattering shots in all directions, and not hitting it. ….Most of it has nothing to do with the two points that really matter in this appeal which we know are Clause (2)(a) and Clause (6) of Article 16 of the Laws of the Constitution of Perak”. Another example: “A decision which misses the point altogether is merely the extraneous ranting of an incompetent judge.” Yet another example: “ It took her 114 pages of circuitous writing before she finally came to the wrong conclusion that “His Royal Highness had ….. . rightly exercised his constitutional powers as provided for and under the Perak State Constitution solely for the best interests of his subjects”….Need I say more. I am as much disgusted as most of you are of judges of such inane quality.”
[It is to be noted that judges can be ‘competent’ and yet take government’s side. If they’re competent they can write judgments favouring government in a way that it is not easy to fault the reasoning behind it.]
So we have a problem of incompetence as well. It may well be worse than human bias. The latter is unavoidable whereas incompetence is avoidable. It calls in question the criteria of appointment.
N H Chan himself is the “old school” type – a basic legal qualification, then decades long private practice of variegated experience culminating in judicial appointment, the pinnacle of a distinguished career in the law.
Have judges appointed nowadays followed such a route? So it is quite understandable that our “retired” judge here derides the quality of judgment.
Well guys ,life lives on,though we have several rojak judgements from various rojak judges.Living in a rojak country due to a rojak Umno/Bn government.After half century of rojak rules,I am pretty sure the rakyat have enough of rojak.Don’t you think it’s the right time to change this rojak government,Orangrojak ?.After 13 GE ,with a new government and a new JC ,”that some judges should no longer be judges can be dealt with easily.
If these ‘Kangaroo courts’ judges do not lean towards their political masters, how are they going to get express promotion?…especially with their sub par ability and knowlege of their profession which are so frightening obvious.
Malaysia is certainly not short of talents but, this is not the objective and motive of this corrupted UMNO-BN scumbag gomen. These UMNO mongrels appoint ‘dignified and not so honorable judges’ to sit on the bench…just to clinch on to power….
limkamput Says: your English sucks also
Now you’re betraying your puritan roots! I understand this is a terrible insult in the colonised world. Fortunately, in the world beyond Malaysia’s shores it’s not all missionary position, eyes-closed, in the dark, for queen and country. Your English isn’t bad limkamput, even if some of your pronouncements don’t even suck.
And yes, I am one of those fools who can speak only one language with what I believe is fluency, even if the style might not be entirely conventional. I’m disappointed to read educationalists recently reminding us that “2 or more languages is positively correlated with better performance at school”. Now I can’t even claim “Jack of all trades, master of none”. You know that one? Is it 门门懂,样样瘟? I’m a dying breed, please pity me!
If I have corrected an intentional mistake, I apologise unreservedly. Some of these articles might be of some historical value one day. It wouldn’t hurt them to spot and adjust the typos early on. Would it?
Justice Chan,
Her judgement reminds me of low quality students who try to impress the examiner by writing long winded answers but without any points and facts.
This is the standard of our judgements nowadays.
How to show the world with such low quality judgement?
NH Chan,
We are really blessed to have you to explain the finer points of laws. Otherwise we would be taken for a ride by the long winded judgements without citing any precents and authorities.
I read Justice Aziz’s judgement again and I find that his was really classic as claimed by you. He really did a lot of reasearch in his judgements. Here is a real WORLD CLASS JUDGE- Justice AZIZ
“Gobbledegook and regurgitation” may be too kind a description. “verbal diarrhea” may be more apt.
I suspect in the ingrained psyche of many of our local judges is that royalty is always right and the executive is the “big brother” and hence the judgements must fit this mentality – whatever their training may have taught them. The notion that judges must fiercely defend their independence and dispense justice without fear or favour is alien to many of our local judges.
All that nonsense and verbiage coming from judges at Court of Appeal (and Federal Court) level is a damning indictment of the Malaysian legal system and a real tragedy for Malaysian justice.
If the constitutional head of state/monarch could ignore the constitution and due process and both hire and fire the MB or PM at his absolute discretion/will would that not mean that what you had in place for your governance system was an absolute monarchy instead of the agreed democratic system of a constitutional monarchy with parliamentary sovereignty/supremacy?
Similarly, if the MB/PM does not follow the constitution and due process and does as he/she pleases without the approval of the legislative assembly/parliament, would that then not mean that what you had in place was in fact a dictatorship instead of the agreed democratic system of a constitutional monarchy with parliamentary sovereignty/supremacy?
How is it that judges at such a senior level do not understand such details and finer points of constitutional law that even many laypeople can easily understand? And with such gaps in legal knowledge and understanding, why are they allowed to sit on that appellate bench? Is it not dangerous to put them there as they can end up causing serious miscarriages of justice for the rakyat and serious damage to the nation with their rubbishy legal knowledge, flawed reasoning and verbiage-based judgements?
It’s also interesting to note that this female judge addresses the other male judges sitting with her on that bench as her “learned brothers” instead of addressing them as her learned “friends or colleagues”. Or is that because the other two male judges are in fact her biological/blood brothers?
“Imagine Power To The People” John Lennon.