Case Commentary: Yusri Mohamad & Anor v Aznan Mohamed v Anor [2002] 4 CLJ 43

The High Court decision of Yusri Mohamad & Anor v Aznan Mohamed v Anor [2002] 4 CLJ 43 is not notable for any novel legal principle formulated or classically expressed. It is after all a decision of Kamalanathan Ratnam J, better known as RK Nathan J, who has fortunately retired some time now.

What is notable about this case is that it is perhaps the only judgment ever written in Malaysia where a High Court Judge after disposing of the merits of the case, goes on a completely frolic of his own to discuss and ventilate his personal grievance over a fellow member of the Judiciary. The case itself is about a running down matter (litigation lingo for personal/fatal injury traffic accident claims). After deciding the case his Lordship goes on to opine the following in his official judgment:

Now it pains me to deal with a subject that has been hitting the news recently. I have noticed that for a few years now a particular judge of the Court of Appeal has been making personal attacks against High Court judges. Whilst a few have received very uncomplimentary remarks, I have been targeted for personal vilification. Whilst no other judge of the Court of Appeal has descended to base, coarse and crude remarks against judges it seems that Mr. Justice Gopal Sri Ram is the only one who has been making these personal attacks. Whilst I agree that as an appellate judge he has every right to criticise my judgments but by no means will I accept his personal attacks against me.

Against the latest judgment of mine in which he sat to hear the appeal, he accused me of being vindictive and passing judgment to satisfy my ego. He has no right to make such personal attacks. He must know that a judge sitting to hear a case at first instance goes through the witnesses, the evidence and the submissions and then forms an opinion and that opinion becomes his judgment. Only a judge who has been a High Court judge will appreciate this. That judgment of a single judge is subject to appeal before three judges of the Court of Appeal. They too give an opinion. If their opinion concurs with that of the High Court judge the appeal is dismissed; if their joint opinions vary with that of the High Court judge then their opinion becomes the subsequent judgment. That joint opinion is again subject to appeal before the Federal Court. The Federal Court judges could if they want rain such similar dastardly attacks against him. But then they are gentlemen up there and such personal attacks is anathema at that level. So Mr. Justice Gopal Sri Ram cannot play God and conclude that his opinion is as infallible as God’s judgment. As his own judgments have been reversed many a time by the Federal Court he must realise therefore that condemning and criticising a judge of the High Court and calling him names demeans the high office he holds, because the Federal Court might just find him wrong. Unless he can say that he has entered the mind of the High Court judge he will not know if there was any reason for the judge to pass such a judgment as he did because what the Court of Appeal sees is the cold stare of hard print in the appeal record, devoid of the emotions and feelings that are generated at a trial. Mr. Justice Gopal Sri Ram is turning the judge into a villain. He has muddied “the very stream of justice that a judge by his oath of office has sworn to keep pure”. And these are his own words which he had expressed against me in the latest judgment.

If he has a personal grudge against a High Court judge he should not violate the oath of office he has taken by sitting in judgment over a case decided by that judge. He should disqualify himself. This is a case of a pot calling the kettle black. I understand that even a consensual call by his fellow judges to refrain from making such personal attacks has fallen on deaf ears.

Mr. Justice Gopal Sri Ram has by making unwarranted and personal attacks against me, sullied the hallowed name of justice. He must practice what he preaches. He must know that each time he makes a personal attack upon a judge in future, a response will come swift and fast.

Doesn’t all that seem rather unseemly, petty and pathetic?

It reflects poorly on the judge as it reflects even more poorly on the judiciary. There is good reason why judgments are meant to only deal with the dispute of the parties and not serve as an avenue for a judge’s personal complaint. Firstly, the judges are there to decide a dispute between parties and explain their decision. Secondly, judgments are written to help parties understand the judge’s decision, not to complain, accuse and threaten another fellow judge. Thirdly, if judges could do just that, we would be reading more contemptuous opinions of each other that they forget about deciding the dispute before the parties. It is for this reason, judges do not explicitly express their mutual contempt for each other and must pretend to respect and understand each other’s judgments. Inserting such a complaint at the end of the judgment is also highly improper because it leaves the impression that the case itself did not fully occupy the mind or consideration of the judge because he was angry at the time and was more interested in venting his grievance than deciding the case. After all, that portion I quoted above takes up a quarter of the case.

What RK Nathan J should have done if he had disagreement or falling out with Gopal Sri Ram JCA (as his Lordship then was) was to take his grievance up to the Chief Judge (Malaya) or Chief Justice and request for a clear-the-air session or sword fight, whichever was more appropriate. Surely that would be the more sensible and civilized thing to do.

What this case demonstrates is that just because you’ve been a judge for a number of years (as RK Nathan J was by then) it does not mean you are possessed of its etiquette and ethic, and also means you can still get it so very wrong. Especially when it concerns one’s pride.