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In a prominently publicised judgment dated 31 July 2002 concerning a motor-accident matter, Justice R K Nathan made public his accusation that he had become the 'target for personal vilification’ by Gopal Sri Ram JCA. Having read the full text of the said judgment, the Bar Council expresses its deep shock over Justice Nathan’s outburst of emotions relating to his perceived victimisation (which forms a considerable portion of his judgment), for the reasons that follow. The Bar Council can think of no justification for Justice Nathan to have addressed his grouse in the course of a judicial proceeding the subject-matter of which bears not the slightest relation to those personal concerns that the judge has used the occasion to ventilate. To have done so is completely out-of-line with judicial dignity and decorum. It amounts to an abuse of judicial proceedings. It also calls into question the all-important ability of a judge to sit in judgment of a case free from the influence of any emotions or factors extraneous to the case. It is an established convention that Judges of a superior court may give their opinion on a judgment of a lower court judge or on what had been said or perceived by that judge. It is unprecedented and not acceptable for a judge of a lower court to make personal attacks on a judge of a superior court. It is critical to the integrity of the judicial system that this convention be adhered to. What Justice Nathan has said is unprecedented, scandalous and unjustified. Public confidence in the judiciary has been eroded and undermined by his conduct. Justice Nathan appears to vent his anger against an ex-tempore judgment of Justice Sri Ram given just a few days before. One remark which Justice Nathan appears to have taken issue concerns the allegation that Justice Sri Ram had criticised the former of having 'muddied the very stream of justicec that a judge by his oath of office has sworn to keep pure’. Without more, the Bar Council does not see how this remark can be described as a personal attack. Though couched in strong language, it is a criticism of conduct in a particular instance, not an attack on the general attribute of the person involved. The only other identified rema rk which appears to have irked Justice Nathan concerns his perception of having been accused of 'being vindictive and passing judgment to satisfy [his] ego’. From the report appearing on page 2 of the New Straits Times of 1 August 2002, what was attributed to have been said by Justice Sri Ram was: 'If the contempt proceedings were unnecessarily initiated and vindictively pursued purely for the personal ego of the judge, it would bring indignity to the court’ (emphasis added). In the Council’s view, the meaning of this statement (assuming it accurately reflects what was in fact said) is very different from what Justice Nathan appears to have construed it to be. The statement, without more, appears to be a general statement of principle rather than a personal attack. On the other hand, and quite apart from having utilised an inappropriate occasion, there are several comments in Justice Nathan’s judgment of 31 July 2002 that, in the Council’s view, amount to personal attacks against Justice Sri Ram; such as the accusation that the latter attempts to 'play God’ and to claim infallibility, and does not practise what he preaches. Added to these are the insinuations that Justice Sri Ram is not a gentleman and that he cannot possibly appreciate the role of a judge of first instance since he had never been one. The Council is aghast at such undignified conduct. The Bar Council deplores Justice Nathan’s public display of his personal displeasure against an appellate judge in the course of the delivery of a judgment, which display and displeasure have nothing whatsoever to do with the case before him. This, in the Council’s view, is a proper instance for appropriate steps to be taken to have that part of the judgment expunged. The Council therefore further calls on the Chief Justice to make appropriate representations to the Prime Minister to advise DYMM Yang Di Pertuan Agong to set up a Tribunal against Justice Nathan under Article 125 of the Federal Constitution.
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Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
