On unproductive record as CJ in writing judgments, Dawsheng commented “Well, not surprise, afterall, he’s a NEP qualified judge… errr.!” –.

Beginning from 1980s, our politically backed language nationalists asserted the supremacy of Bahasa and suppressed English because of its colonial association. A whole generation of youngsters then becomes handicapped in English. In July 1990, Bahasa replaced English as the official language of the courts in West Malaysia, although English is still permitted to be used where necessary in the interest of Justice. If a whole generation of students has become handicapped, have the judges and our justice system too been a victim of this switch in language primacy and emphasis? (Our judgments are written in English since our laws are still based on common laws. Our statutes printed in both English and Bahasa but its the English version that is normally referred to and cited because the cannons of legal interpretation are still based on English principles). Unless one loves and is proficient in English – it is essential tool in the legal trade – won’t writing judgments become an arduous task, which possibly explains why there is such a backlog of cases for which no written judgments have been written, causing those who are making their appeals based on a written judgment to wait, and meanwhile languish in jails?

To be sure, writing a judicial judgment, and a good one at that, is not an easy task. One has to recite the facts of the case, then the law and finally how the law is applied to the facts of the case and then the judicial decision – in English.

To recite the facts, a judge must first be a good listener. He has to listen to all the facts recounted by witnesses. He has to peruse meticulously fine prints of documents. These constitute the body of evidence. Then he must have a flair in story telling – like to children. He has to use crisp and short sentences, avoid too bombastic words, write in simple English but delivered in interesting style. This is necessary because facts are detailed and complicated and best narrated in such a way.

Then of course he has to cite the law. He needs to be erudite here, assisted by the lawyers, no doubt. Mere knowledge of the law does not connote however wise application of it to complicated matrix of facts. The judge needs as much an integrated understanding of various aspects of law, and how they interplay as much as intellectual skills to apply it to facts.

By intellectual skills, I mean not just analytical skills of dissecting a complicated problem into manageable sub component parts for easy handling. I also refer to a high level of intellectual abstraction, ie an ability to abstract and distil from a morass of facts and law, the essential principle. It is trite that if one is unable to abstract a principle, how can one hope to apply it?

Even if the principle is grasped, the application may not be easy. One must have a keen sense of what is relevant and what is not. And after having a sense of relevancy, it is still not sufficient. For every principle to be applied, there is often another or perhaps multiple principles competing with the first for application. One must be a juggler – able to juggle, weigh and balance various competing principles and determine which one to apply that is both relevant as well as best serve the interest of justice between the parties in dispute and contention, in accordance with applicable law and not incompatible with public policy and other societal goals.

The entire process is best served by an organized mind, by reference to which I mean the ability to think in an organized fashion, where thoughts flow imperceptibly from one level to another in a logical flow. But again, this is not enough. To think in an organized way does not automatically translate to being able to express in writing in the same fashion – unless one has strong command of the language and regular practice and interest in writing.

I shall let the great English judge of 38 years, Lord Alfred Denning, ((23 January, 1899–6 March, 1999 to leave you some thoughts on his approach to judgment writing that have endeared him to generations of law students, practitioners and common wealth judges alike, and I quote:-

“I start my judgment, as it were, with a prologue—as the chorus does in one of Shakespeare’s plays—to introduce the story….I draw the characters as they truly are—using their real names….I avoid long sentences like the plague, because they lead to obscurity. It is no good if the [reader] cannot follow them….I refer sometimes to previous authorities—I have to do so—because I know that people are prone not to accept my views unless they have support in the books. But never at much length. Only a sentence or two. I avoid all reference to pleadings and orders—They are mere lawyer’s stuff. They are unintelligible to everyone else. I finish with a conclusion—an epilogue—again as the chorus does in Shakespeare. In it, I gather the threads together and give the result”. (Unquote)

[Oh, by the way, Denning had a double first in mathematics and a first in law double first in mathematics in Oxford University. He had a penchant to read English literature – Shakespeare, Milton, Keats, Worthsworth, Coleridge, all the masters of the language – and because he could master the complexities of the language, with its bombastic and sometimes archaic words and the convoluted sentence structure, so he could have this uncanny ability to simplify it to electrify his readers].

The question is : Can our ‘NEP’ Judges (to borrow the colourful words of Dawsheng) rise up to the challenge of the task in judgment writing?

Undergrad2,

Tun Ahmad Fairuz Sheikh Abdul Halim received his Bachelor of Laws from the National University of Singapore and later obtained his Master of Laws in International and Comparative Laws from the University of Brussels, Belgium.

He joined the Malaysian Judicial and Legal Service on 4 April 1967 as a Cadet Legal Officer and held various positions such as President of Sessions Court, State Legal Advisor and Chairman of the Advisory Board, Prime Minister’s Department.

On 1 December 1988 he was appointed Judicial Commissioner of High Court Malaya and was later appointed a High Court Judge. On 1 December 1995 he was elevated as a Court of Appeal Judge until his appointment as a Federal Court Judge on 1 September 2000.

Ahmad Fairuz was appointed Court of Appeal president in December 2002 – months after the alleged telephone conversation in video clip. Dzaiddin stepped down as CJ in 2003 and he was replaced by Ahmad Fairuz as CJ.

[Information above is in part from Wikipedia].

Personally have not read any of his judgments or articles in law journals if any.

Yes Oppenheimer was Vice Chancellor (don’t know who was dean of law fac then), and Fairuz (Class of 67 with 71 graduating some of whom are senior partners of KL big law firms today, and yes he was senior to Rais by 2 or 3 years but don’t forget before Rais read law in NUS (then University of Malaya in Singapore), he had studied and graduated from Language Institute, Kuala Lumpur, taught Bahasa Malaysia to the American Peace Corps in the United States in 1968, and graduating in law with honors from NUS sometimes in 1974(?) Rais went into private practice (Ram & Rais in Seremban), Fairuz to Penang as magistrate. In 1994, Rais obtained a PhD from the University of London for his doctoral dissertation “Freedom Under Executive Power in Malaysia: A Study of Executive Supremacy”.

Senior to Fairuz was Prof Jeyakumar yr 63′, now deputy PM of S’pore, Prof Tommy Koh 61′ (Chairman of UN Law of the Sea, now in ASEAN high level committee drafting ASEAN Charter) and even our LP Hamid (judicial crisis of 1988) was also trained in law fac in NUS, with the other one Chan Sek Keong ’61, appointed Chief Justice of Singapore on 11 April 2006!