When a judge is plainly wrong

When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right thinking member of the public to cricitize him.

by N H Chan

In the New Sunday Times of April 19, 2009 there appears this astonishing remark (because it is erroneous in law) which was attributed to a Minister in the Prime Minister’s Department:

KUALA KANGSAR: Minister in the Prime Minister’s Department Datuk Sen Mohammed Nazri Abdul Aziz has hit out at Perak DAP chairman Datuk Ngeh Koo Ham for questioning a Federal Court ruling pertaining to Perak.
He said Ngeh should not question the court’s decision that Perak state assembly Speaker V Sivakumar did not have the power to suspend Mentri Besar Datuk Zambry Abdul Kadir and six Barisan Nasional (BN) state executive council members from attending the state assembly sittings. They were suspended for unprofessional conduct early this month.
There was no question of the judiciary interfering in the legislature as claimed by Ngeh as the courts were the best place to seek interpretation of the Constitution or law, he told reporters.
Nazri said the law did not intend to equip a speaker of a legislative assembly with unrestricted authority.
(the emphasis is supplied by me).

Everyone knows that Ngeh was talking about Article 72 (1) ofthe Federal Constitution which states:

72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

But what the Minister was saying is that “the courts were the best place to seek interpretation of the Constitution”. Now I ask the readers, do you, as a member of the general public, need a judge to interpret Article 72, Clause (1) above? But when the judges were asked to apply Clause (1) of Article 72, as we have recently observed, they have blatantly refused to apply the constitutional provision as it stands. We know that the words mean what they say. According to the dictionary the word “interpret” means “explain the meaning of”. I don’t think we need the Federal Court or any court to explain the meaning of Article 72 to us - the meaning is plain enough for us ordinary Malaysians to understand. No one in his right senses would attempt to interpret the obvious meaning of the words in Article 72(1), unless he wants to say the words mean something else as Humpty Dumpty did in Lewis Carrol: Through the Looking Glass, 6 Humpty Dumpty:

“I don’t know what you mean by ‘glory’” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t - till I tell you. I meant ‘there’s a nice knock-down argument for you!’”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’ ” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean - neither more nor less”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master - that’s all.”
Alice was too much puzzled to say anything;

Then, like Humpty Dumpty, Nazri made this amazingly naive statement: “the law - [meaning Article 72(1)] - did not intend to equip a speaker of a legislative assembly with unrestricted authority”. But that was not the point of what Ngeh said. So what if the speaker was wrong on what he did or said or ordered in the legislative assembly? The supreme law of the land says that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”. This could only mean that all differences which occurred in the legislative assembly could only be resolved by the assembly within the assembly itself. The validity of any proceedings in the Assembly is beyond the reach of the courts - so said the Constitution of Malaysia. The “law” does not mean, as the Minister wanted it to mean, that it “did not intend to equip a speaker of a legislative assembly with unrestricted authority”. Like Alice, the general public were too much puzzled by such a naive remark.

Anyway, why should a judge be afraid of criticism of his judgment if he has done nothing wrong and he is only doing his duty to administer justice according to law? Judges do not fear criticism, nor do they resent it: see R. v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) [1968] 2 Q.B. 150, at p 155 where Lord Denning said: “We do not fear criticism, nor do we resent it”.

This is because “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. In the Privy Council case of Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322, this was what Lord Atkin said, at p. 335:

“. . . whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”