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Keynote Speech by Dato’ NH Chan
Retired Judge of the Court of Appeal
Re : Kempen PerlembagaanKu/MyConstitution Campaign goes to Perak!
On : Friday, 5 February 2010 @ Royal Ipoh Club, Perak The independence of the judges
What does the term the independence of the judges
mean? I pose this question because it appears that there are many of
our judges today who do not seem to know the true meaning of separation
of powers in constitutional law. This is most apparent especially among
those judges in the higher echelon of the judicial hierarchy. The bad
judges seem to think that independence means that they can do
what they like – because the dictionary says the word means “free from
the control or influence of others”.
The recalcitrant judges think that
words can mean whatever they want them to mean. They think like Humpty
Dumpty who says that it depends on who has the power – “the question
is,” said Humpty Dumpty, “which is to be master”. These Humpty Dumpty
judges also think that they are independent of the legislature. They
think they could ignore the Federal and the Perak State Constitutions,
even the statutes enacted by Parliament so long as they side with the
government in power. By so doing, these judges have exposed themselves
to the rest of us that they are utterly incompetent judges. They are,
therefore, unfit to be judges because they have refused to perform
their duty which is to do justice according to law. It is their duty to
do the right thing. The right thing to do is to deal out impartial
justice and to apply the law of the land as it stands. The notion of separation of powers
or the independence of the judges seems to be beyond the comprehension
of these judges. But we are here today to explain to the ordinary
people of this country what it means to have an independent judiciary.
Once the ordinary people have a grasp of the concept of separation
between executive and judicial powers they will be able to judge the
judges. When it comes to explaining the law so that it could be easily
understood, I believe the late Lord Denning had no equal. In The Family Story, at pages 191,192 he explains the concept: The independence of the judges The keystone of the rule of law in
England [and elsewhere] has been the independence of the judges. It is
the only respect in which we make any real separation of powers. There
is here no rigid separation between the legislative and the executive
powers, because the ministers, who exercise the executive power, also
direct a great deal of the legislative power of Parliament. But the
judicial power is truly separate. The judges [in England] for nearly
300 years have been absolutely independent. And when I speak of judges,
I include not only the High Court Judges, but also all the magistrates
and others who exercise judicial functions. No member of the
government, no member of Parliament, and no official of any government
department, has any right whatever to direct or to influence or to
interfere with the decisions of any of the judges. It is the sure
knowledge of this that gives the people their confidence in the judges,
and I would add also the chairmen of tribunals when they are
independent of the executive, for they too are judges. It does not
depend on the name judge or chairman but on the substance. The critical
test which they must pass if they are to receive the confidence of the
people is that they must be independent of the executive.
The judges must be independent of
the executive, how did this happen? For the answer to this question I
have to return to Lord Denning who had, in his lifetime, explained the
law in a way that ordinary people can understand. He said in The Family Story, page 190:
… for nigh on seven hundred years,
the judges of England laid down the common law which precisely defined
the rights of the individual and made the life and liberty of every
law-abiding citizen secure from injury on the part of others or of the
State. …The principles laid down by them have sunk deep into the mind
of the nation and have been more powerful than anything else in
creating the spirit of the British Constitution. [here, ‘spirit’ means
‘typical character, quality or mood’]
What does the spirit of the Constitution mean? Lord Denning explains it at page 191:
It lies, I believe, first, in the
instinct for justice which leads us to believe that right, and not
might, is the true basis of society; and secondly, in the instinct for
liberty, which leads us to believe that free-will, and not force, is
the true basis of government. These instincts for justice and liberty
are abstract ideas which are common to all freedom-loving countries:
but the peculiar genius of the British Constitution lies in a third
instinct, which is a practical instinct leading us to balance rights
with duties, and powers with safeguards, so that neither rights nor
powers shall be exceeded or abused. But who are the guardians of this
spirit? Who are they who interpret it on our behalf?
They are twofold. On the one hand –
Parliament. On the other hand – the Judges. Our [the British]
Constitution is unwritten. But it is founded on two strong pillars. One
is the sovereignty of Parliament. The other is the independence of the
Judges
The only difference between the
British Constitution and ours is that ours is a written one. With a
written constitution everything is contained in the entrenched clauses
of the Constitution (which is a statute). In an unwritten one like the
British Constitution they have no entrenched clauses. They have no
fundamental Constitution by which other laws can be tested. They will
have to rely on the common law as laid down by the judges of England.
In this respect the common law of England is wove into the fabric of
the history of England.
But we are here today to look at
the independence of the Judges. This will take us back to the opening
paragraphs of this address where I read from Lord Denning on The independence of the judges at pages 191, 192 of his book.
Shortly stated, the independence of
the judges means that there is a rigid separation of powers between
executive power and judicial power. The critical test which every judge
must pass is that he must be independent of the executive. If a judge
does not appear to be independent of the executive then he will lose
the confidence of the people. Once the people has no confidence in a
judge that is the end of his reputation and integrity as a judge.
Haven’t you heard the often repeated remark, “I don’t respect our
judges anymore” among the people of this country ever since the Perak
debacle exploded into the local scene?
Why do the people feel so strongly
about this? It is because the keystone of the rule of law has been the
independence of the judges. For the English people, Lord Denning has
expressed it in this way, ibid., on page 192:
Why do the English people feel so
strongly about this? It is because it is born in them. We know in our
bones that it will not do for us to allow the executive to have any
control over the judges: and we know it because our forefathers learnt
it in their struggles with the kings of England – the kings who in the
old days exercised the supreme executive power in the land.
We, Malaysians, also feel very
strongly about this. But it is not born in us. It is not in our bones
that it will not do for us to allow the executive to have any control
over the judges because our forefathers did not experience any bitter
struggle with our rulers – our sultans and governors. Ours is a new
nation; it is only 52 years old. But we have inherited the Common Law
of England – see the Civil Law Act 1956 – and from the common law we
have learnt how the separation between executive power and judicial
power came to light.
It is this awareness of the true
meaning of justice that the common man can judge the judges. Anyone can
be a judge. All that you need to be one is to be fair-minded yourself
and to show by your conduct and behaviour in a court of law that you
deal out impartial justice – for justice must not only be done, it must
be seen to be done. The other attribute of a judge is to administer
justice according to law.
Shortly stated, justice means that
the judge’s duty is to do the right thing. The right thing to do is to
deal out impartial justice. The right thing to do is also to apply the
law as it stands. The so-called Perak crisis has brought out a host of
cases that showed that the judges gave the impression that they were
one-sided. The perception of the people is that they sided with the BN
government. A classic example is the shocking case of Zambry v
Sivakumar in the Federal Court. We all remember the infamous five who
were Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ(M), Nik Hashim Ab.
Rahman, Augustine Paul and Ahmad Makinnuddin FCJJ. They decided in
favour of the government appointed Mentri Besar Zambry Abd Kadir. They
held that the Speaker of the Perak Legislative Assembly V Sivakumar has
no power to suspend Zambry and six executive council members from
attending the Perak State Assembly.
I posted this criticism of the decision on the Internet. I wrote:
This is a perverse decision of the
Federal Court. It is perverse because it is a decision that was made in
blatant defiance of Article 72(1) of the Federal Constitution that
says, “The validity of any proceedings in the Legislative Assembly of
any State shall not be questioned in any court”. The judges of the
Federal Court have failed the people and the government of this country
when they chose to ignore the law of the Constitution of Malaysia. In
other words the judges have refused to do justice according to law.
Ours is a written Constitution
unlike the unwritten British Constitution. The words in Article 72(1)
are specific. The words mean exactly what they say. Even a child can
understand them. Yet the infamous five chose to ignore the plain
meaning of the words. They gave their own meaning to them. They said,
under the pretext of interpretation, that the constitutional provision
did not allow the Speaker to suspend the seven applicants. But who are
they to say that the Speaker was not allowed to suspend the MB and the
turncoats when the supreme law of the land says, “the validity of any
proceedings in the Legislative Assembly of any State shall not be
questioned in any court”?
Even in the unwritten British
Constitution there is an almost similar provision as ours; but it is
called the privileges of Parliament. This is how Lord Denning put it, The Family Story, page 192:
The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May
says: ‘What is said or done within the walls of Parliament cannot be
enquired into in a court of law’. The Bill of Rights 1688, art. 9, s 1,
says:
That the freedom of speech, and
debates or proceedings in Parliament, ought not to be impeached or
questioned in any court or place out of Parliament.
Not even the great Lord Denning could assail this. The case is reported in the Law Reports – re the Parliamentary Privilege Act 1770 [1958] AC 331. He tells it on page 193 of The Family Story:
On 8 February 1957 Mr Strauss MP
wrote a letter – on House of Commons paper – to Mr Maudling, the
Paymaster-General. He complained of the behaviour of the London
Electricity Board. He said that they were disposing of scrap cables at
too low a price. He said their conduct was a scandal. Mr Maudling …
passed the complaints on to the London Electricity Board.
On 4 March 1957 the Board’s solicitor wrote to Mr Strauss threatening a writ.
That simple solicitor’s letter
raised the great constitutional issue. Who was supreme? Parliament or
the Courts of Law? Mr Strauss said the letter (threatening a writ) was
a breach of the privileges of Parliament, and that the Board and its
solicitor were punishable by the House itself. The London Electricity
Board said that they were entitled to have recourse to the Courts of
Law and that the House of Commons could not stop them.
The issue was referred to the Privy
Council. Seven Law Lords sat to hear it. I was one of them. I found
myself in a minority of one. Six of them … held that the House of
Commons could treat the issue of a writ against a Member of Parliament
– in respect of a speech or proceeding in Parliament – as a breach of
its privileges.
Lord Denning’s dissent was that
every Englishman had a right to seek redress in the Courts of Law and
then Mr Strauss in his defence could plead the defence of Parliamentary
privilege as being a ‘proceeding in Parliament’ within the Bill of
Rights. You will not find his dissent in the opinion of the Privy
Council – in those days dissenting opinions are not allowed. In a sense
Lord Denning was right; no one could be prevented from seeking redress
in a Court of Law. But in the case in question the issue was referred
to the Privy Council for its opinion. This had preempted the writ
action. Had the issue to be decided by a court of law, Parliamentary
privilege is still a complete defence.
Now that you have been apprised of
the law, you will know that there is a rigid separation of powers
between the executive government and the judiciary. You will also know
the true meaning of the independence of the judges. You are also sure
that the separation between executive power and judicial power is real.
It is not a myth. It is the law of this country. It is only those
judges who had made all those perverse decisions on the Perak crisis
who are befuddled by the law. They have created the confusion. It is
they who have created the myth by their own ignorance. By refusing to
apply the law of the land as it stands they have ostracized themselves
from right thinking society. But to the good judges and the dedicated
lawyers and to all right thinking people of this country I urge all of
you not to give up the struggle. Keep on commenting on their conduct in
court. Keep on writing articles about their decisions that do not apply
the law of the land as it stands. Educate the people of their rights
and the law that is applicable to the decision, and should the judges
divert it or depart from it – and do so knowingly – they themselves
would be guilty of a misuse of power: see Lord Denning’s What Next in the Law, page 319.
On my part, I shall try to ensure
that the names of the bad guys will remain in infamy for generations to
come unless they recanted from the wrongs that they have done to the
country and to the people. I shall write their obituary when they die,
just as I wrote the obituary of the late Augustine Paul who is the
Judge Jeffreys of this country. If they outlived me I am sure there
will be others who will take my place.
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