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.

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.

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?

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.

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?

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.

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!

I suppose medals and honours are in order.

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!