Loyarburok is pleased to present its exclusive interview in five parts with the incorrigible, irrepressible and inimitable Chan Nyarn Hoi or NH Chan as he is known. In this penultimate instalment, we speak to Malaysia’s most famous retired Court of Appeal judge about who and what inspires him, particularly what affected him to go on his one-man crusade, and his experience with VK Lingam.
What inspired you to suddenly become so vocal in your criticism of the judiciary? A hypothetical [question], if you were offered a return to the judiciary on a contract basis but with security of tenure, would you accept it?
I had to write about the judges because they did wrong. At the time there was a lot of confusion in the newspapers about the Perak Constitutional crisis. I felt that I could explain it in simpler terms about what was happening in Perak.
In those days many of those who wrote and gave their views had not even read the Laws of the Constitution of Perak. None of the English newspapers, and I have tried all three of them, would print my first article. So I turned to the Internet and it was MalaysiaKini through Mr. Andrew Wong who accepted my first article. It was an immediate success. My theme was and still is for ordinary people to be able to judge our judges.
I knew from experience that most people would not know if a judgment which is reported in the newspapers has correctly stated the law or not.
My formula is a simple one. First of all, I would explain the law in simple language and after that I would explain the judgment to them. And when that shows that what the judge had said in his judgment is not the law, my readers would realize that the judge had misled them. That was the secret of my success on the internet. Actually it is not a secret at all. All that I did was to expose the fallacy of the judgment of the judge.
As for the second question, I’d rather not answer your hypothetical question. I would not like to appear to be presumptuous. Opportunities are rare and far between for a landmark decision while on the Bench. In all my 21 years as a serving judge I have encountered only two, or perhaps three, such cases; PP v Param Cumaraswamy and Ayer Molek or possibly the first copyright decision in the country.
I think you would prefer for me to point out every time the judges have done wrong than for me to try mundane cases as a judge and wait for an opportunity to make a landmark decision – which might never occur in my remaining lifetime. Gopal Sri Ram is a glaring example; he should have sat in the cases about the Perak crisis but it was not to be – somehow the opportunity had eluded him.
The Royal Commission into the VK Lingam video clip: Were you surprised with the findings? Why? Do you think anything will be done? What has your experience with VK Lingam been? Do some judges have a ‘special relationships’ with certain lawyers so that if the latter appears before them it is a ‘sure win’ (We hear so much of this in our practice)?
I have not seriously considered it as I was hoping then that someone would send me a copy of the findings of the Royal Commission of Inquiry. What I read in the newspapers were usually not enough to form an opinion. But I thought that Haidar should not have chaired the Commission for apparent bias. I had faith in Zaid Ibrahim but he was removed as the de facto law minister and expelled from UMNO. So now I don’t think anything would ever be done.
I only had one encounter with VK Lingam and that was in the Ayer Molek appeal. I do not know about the other judges. The “sure win” situation exists as it was glaring in the Perak crisis cases. I consider this an abuse of power by our judges. Those judges should be ashamed of themselves and I make no bones about them in my articles on the Internet.
Did the Chief Justice and other judges sideline or marginalize you after you wrote the now famous Ayer Molek Rubber Company Court of Appeal decision?
Eusoff Chin used very harsh words against my panel in the Court of Appeal. As a result he made a fool of himself! It is all in my book “How to Judge the Judges”. When Dzaidin became the Chief Justice after Eusoff Chin’s retirement, Siti Norma became Chief Judge of the High Court, Malaya and KC Vohrah became a judge of the Court of Appeal. By that time I have retired.
Name 3 judges you would hold up as role models and why?
Lord Denning of course. I have given the reasons earlier.
Coke – Sir Edward Coke, 1552-1634. I think this passage from Trevelyn: History of England, the illustrated edition, sums it up accurately, p 462:
Only one thing was dearer to Coke than promotion and power, and that was the Common Law. For it he sacrificed place and royal favour, stepping down off the Bench to make on the floor of the Lower House his alliance with the Puritan squires, a union whence sprang the liberties of England.
You can read all about it in my book “How to Judge the Judges”, second edition, pp 15-17.
Lord Mansfield was the greatest ever Chief Justice of England. He served as Chief Justice for 32 years. You can also read all about him in my book, pp 17-21. Lord Bingham in the Sultan Azlan Shah Law Lectures – The Law as the Handmaid of Commerce, p 367, said:
… although Mansfield has left a generally golden reputation behind him, he was in his day the subject of sustained personal vilification, perhaps never by any other judge in any place at any time. I refer to the anonymous Letters of Junius, some of which were addressed to him personally and attacked in the strongest terms his partial and pro-government approach in particular to libel trials. During the Gordon riots of June 1780 his carriage windows were smashed by the mob, he was hustled as he left the House of Lords, his house in Bloomsbury Square was burned and his library destroyed. In comparison with penalties such as these, the strictures of the press to which the modern judge is exposed to may seem a somewhat a moderate affliction.
Holdsworth, A History of English Law, Vol 12, p 526, has recorded:
… his learning was far wider than that of any other English lawyer …he was familiar with the Continental treatises on commercial and maritime law; and …he was learned in Scottish Law, in international law, and in ecclesiastical law, as well as in the principles of common law and equity.
And in What Next in the Law, Lord Denning wrote, p 21:
In 1756 he was made Lord Chief Justice of the Court of King’s Bench and created a peer by the title of Lord Mansfield: and for the next 32 years he held that high office with the greatest distinction. He attained such ascendancy over his colleagues that they hardly ever dared differ from him and his decisions were only reversed on two occasions. He laid down principles of law which have since been carried over more than half the world.
Does it disappoint you that none of your other fellow retired judges are speaking up about the travesty that is going on in the judiciary?
No, it doesn’t disappoint me at all. I think they are entitled to enjoy their retirement. They have served the country well for their integrity. One should not expect more out of them.
Throughout history, it takes a special kind of individual to be a radical. The great Lord Mansfield lost his home and his precious library for doing the right thing. And he suffered much vilification for his efforts in establishing the foundation of the common law by his foresight in fusing equity with law and for laying the foundations of maritime law and the commercial law. In 1786 Mr Justice Buller paid this most deserved tribute to Lord Mansfield in Lickbarrow v Mason (1786) 2 TR 63 at 73: “… on this subject which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.”
Coke was Chief Justice when he was dismissed by King James I for standing up against the King. Chief Justice Coke told the King that he had no power to try cases himself, and that all cases ought to be determined in a court of justice. King James in a great rage said (What Next in the Law, pp 311-312):
“Then I am to be under the law – which it is treason to affirm.” The Chief Justice replied: “Thus wrote Bracton, ‘The King is under no man, but under God and the Law’.”
Lord Denning tells us that that saying reverberated down the centuries. It was the watchword used by lawyers and Parliamentarians to overthrow the pretensions of King Charles I.
At p 10 of the book Lord Denning wrote:
Coke had an enemy in the King’s Bench. None other than Francis Bacon. He drew up a list of decisions of Coke which were considered objectionable. The King used them as a ground for dismissing Coke.
Coke became a member of Parliament after his dismissal. His fame rests on his work as a law reporter and commentator. Coke’s Reports cover over 40 years of court cases. His old enemy Francis Bacon said this of him (What Next in the Law, p 12): “To give every man his due, had it not been for Sir Edward Coke’s reports … the law by this time had been almost like a ship without ballast.”
When Coke retired from politics, he returned to writing. He wrote Institutes. Mr. Justice Stephen said of them (still on p 12 of the book): “The Institutes have had a greater influence on the law of England than any work written between the days of Bracton and those of Blackstone.”
Next: The fifth and final instalment of the interview with NH Chan. He shares with us his learned opinion on how the judiciary can improve it’s quality of decision making.