Archive for the ‘Former Court of Appeal Judge N. H. Chan’ Category

by Joe Fernandez
Guest Columnist

COMMENT It appears that the current Najib Administration has forgotten the bitter lessons learnt during Prime Minister Mahathir Mohamad’s long innings in office when he, the frightened little man he was by default in office, openly and shamelessly rooted for extreme coercion as his preferred modus operandi.

It’s not so much that Prime Minister Mohd Najib Abdul Razak is calling the shots in the current stand-off with the Bar Council of Malaya on the proposed Law Academy in the wake of Bersih 3.0.

De facto Law Minister Nazri Abdul Aziz, egged on by Mahathir, appears to be single-handedly taking on the legal profession in the country. He must have a death-wish like Mahathir.

Why doesn’t the Election Commission (EC) address, in a rational, detached and professional manner, the issues raised by Bersih 3.0?

Instead, the Government is indulging in the politics of distraction and disruption to camouflage the numerous complaints against the EC, the Electoral Rolls and the electoral process. The EC cowers meanwhile behind the Government which appears determined not to allow a free and fair election lest it end up, after 55 years, in the dustbin of history. Fifty-five is a good time to retire.

To digress a little, Dataran Merdeka in Kuala Lumpur will turn into yet another Tahrir Square with reminiscence of the Arab Spring if the ruling Umno wins the 13th General Election with anything more than a simple majority. The fault will lie squarely on the EC and Umno.

The Umno Government can only underestimate the determination of the Opposition for free and fair elections at its own peril.

Now, we are saddled with the Umno’s politics of distraction and disruption again a la Mahathir in the wake of ex-Bar Council Chief Ambiga Sreenivasan assuming the mantle at Bersih. The Government is under no illusions that the Opposition, which has an eye on the 67 parliamentary seats in Peninsular Malaysia where Indians decide, is behind Bersih. It sees the Bar Council as having a hand in Bersih 3.0 via Ambiga. Hence, moves for a so-called Law Academy to “rein in the Bar Council” and at the same time intimidate Indian voters into supporting the Government once again.

Mahathir tried, repeatedly, to do a number on practising lawyers in the country after the sacking of the Lord President. Eventually, he had to retreat with his tail between his legs when jurists worldwide began scrutinizing him and he began to more than feel the heat.

History is set to repeat itself under the guise of the proposed Law Academy and for the aforesaid reasons.

Mahathir appears to belabour under the illusion, or perhaps deliberately, that politics is only for politicians and politicians.

Hence, he castigates the Bar Council as “having degenerated into a political party with no one to look after the profession”.

Politics cannot be divorced from law.

The Constitution is more politics than law and its dry bones, masquerading as law, are clothed by constitutional conventions and administrative law, both of which have nothing to do with law but is all about politics. It’s the politicization of issues, like the need for electoral reform, which eventually finds its way into constitutional conventions and administrative law.

So, the Bar Council stands on firm ground on the legal profession and should not be seen as behaving like a political party anymore than the NGOs which flog a single issue where the politicians have failed.

Nazri, in a contradiction in terms vis-à-vis Mahathir, claims that the Government-mooted Law Academy will look after the interests — whatever they are — of law graduates who are not in professional practice. It’s clear that the Government wants to use the Law Academy for political purposes and mainly to clobber the Bar Council with it.

This is the second such attempt by the Government.

The first was through an association for secular Muslim lawyers. This divide-and-rule tactic has not worked so far because very few Muslim lawyers abandoned the Bar Council to join the new association. Muslim lawyers have no reason to be separate from the Bar Council just as members of other faiths.

Nazri should know that Mahathir doesn’t have a leg to stand on when it comes to the legal profession, given his tainted record on the Judiciary, and should not continue to ventilate his ignorance in public like his political master.

The Bar Council has neither forgotten, nor forgiven him, for single-handedly eroding the Doctrine of Separation of Powers and reducing the Judiciary to yet another Government Department firmly under the thumb of the executive. This was after Parliament had been reduced to a rubber stamp and the King placed in imminent danger of losing his head by way of a so-called Special Court. There’s no precedent for this legal Sword of Damocles anywhere in the world.

If the King has to step down, for any number of reasons, he steps down but he can only be persuaded by the Council of Rulers to do so and not the Government. He doesn’t get dragged to Court like a commoner. But this was what Mahathir, in his supreme ignorance, bequeathed the nation.

Whatever happened to a concept of Crown Privilege? The King can do no wrong.

Now, Nazri and Mahathir are leading those egging any number of publicity-seekers to set up the Law Academy. No doubt there will be some takers, none from the Bar Council, just as in the case of the Muslim Lawyers Association. The Federal Government reportedly plans to fund the Law Academy with an initial launching grant of RM 15 million.

If non-practising lawyers want to band together for some reason, they can always do so, as provided for by Article 10 of the Federal Constitution.

However, they should not band themselves together as a Law Academy. They are not qualified to do so since the great majority is neither in teaching nor are they in professional practice. No doubt they would have forgotten whatever law they learnt in their quest for a paper qualification. Ten out ten they would fail a simple law test.

A Law Academy is an institution of higher learning for the teaching and development of the law via academia, with emphasis on jurisprudence, and research on law, government and politics. Membership of the Academy is honorary.

The right parties to set up a Law Academy would be the Bar Council of Malaya, the Sabah Law Association and the Sarawak Advocates Association together with the law faculties at local universities and those overseas in Commonwealth countries.

The Federal Government has no business whatsoever pushing for a Law Academy or whatever with half-baked characters just to politicize the legal profession for its own ulterior motives.

Kota Kinabalu High Court Judge Datuk Clement Skinner is a fine attorney and a very good judge, a friend. All those that have come in contact with him over the years will agree. All my friends in Sabah, have described the judge as honest, skilled, and hard working.

Skinner as he is fondly called by friends, is a hard worker and a good lawyer, a founding partner in the law firm Skinner & Lind in Kota Kinbabalu.

I think very highly of Justice Skinner as he is very meticulous, very, very conscientious and a real legal scholar. He’s a very fine judge and a dying breed in Malaysia. I always found him to be a reasonable judge.

Recently in a case of a snatch thief, Jasmie @ Roslan Albani an illegal immigrant from Southern Philippines, grabbed a necklace from the neck of a young lady, Nurima, as she was coming down a bus in the Kota Kinabalu main bus stand. The snatch thief Jasmie was apprehended by a policeman with the help of the fellow passengers in the bus. In court, Jasmie admitted to his crime and a Magistrate had imposed a sentence of 15 months imprisonment.

Judge Datuk Clement Skinner after reading that the Magistrate had imposed only 15 months imprisonment for the snatch thief Jasmie, called for the file to be brought to him for a review of sentence as he felt that the sentence was inadequate. At the trial in his court, Judge Skinner increased the prison term to 3 years and said ” a clear message should be sent that it does not pay to commit snatch thefts.”

This is the kind of judge Malaysia needs in plenty.

Judge Skinner brought to the bench so many of the qualities you like to see in a judge. We need many more judges of such qualities in Malaysia when the image of our judiciary is at its lowest ebb.

Just last week, the Chief Justice Of Malaysia Tun Zaki Azmi, said that disciplinary action has been taken on two judges for being grossly inefficient. Tun Zaki said he is sending out a strong message to the judges and court staff to shape up or ship out. He too wants to redeem the image of our judiciary. See here what Justice Tun Zaki Azmi said.

Centre for Policy Initiatives has reproduced a concise summary of Judge N H Chan’s earlier extended legal commentary on the tussle between his Royal Highness The Sultan of Perak and His Menteri Besar.

There is a great public interest in this subject and this concise summary is sure an eyeopener. For me, this piece of jurisprudence from a learned judge like N H Chan sure makes an informative reading material and I further better understand that there is a decorum on how constitutional matters should be viewed.

DOWNLOAD the N.H Chan Summary HERE

We are pleased to share with CPI readers the full text by Judge N. H. Chan of his legal commentary on the constitutional tussle.  We thank him for sharing it with us and our readers.

Dr. Lim Teck Ghee, Centre of Policy Initiatives

Full text by Judge N.H. Chan