NH Chan: A class act

ARCHIVES 2009

By admin-s On Jun 28, 2009

By Justice Gopal Sri Ram (The Malaysian Insider)

JUNE 28 – When I was a student at Lincoln's Inn, more years ago than I care to recall, we were told that all decisions obf 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.