法官应面对良知依法裁决
陈炘铠：糊涂法官应革职
【狄波拉（Debra Chong）撰述／本刊陈慧思、陆秋錤翻译】上诉庭退休法官陈炘铠（N.H. Chan）的双层半独立式房子就坐落在霹雳州一条宁静的小巷里，家里还住着他的妻子、一只狗和七条日本鲤鱼。  这位74岁老人的一头白发下，是一张温柔红润的脸庞，很少人会把他和尖酸严肃的陈炘铠法官联想在一起，尤其是那个在这几个月内做了一些大家都意想不到之事的退休法官――写信炮轰审理霹雳宪政危机案子时践踏《联邦宪法》的法官们。他洋洋洒洒的文章意在我国人民，让坐在法官席上的人所蒙蔽的事；他以简单的方式阐述霹雳宪政危机，以便普罗大众得以明白事情的真相。在人们还在观察霹雳宪政危机及等待联邦法院的判决时，陈炘铠（左图）说，如果我国人民对法院的裁决感到不满，以及认为法官的表现不称职，我们应该行使投票权利，以改变国家现状。 陈炘铠于1935年3月27日在怡保诞生，1961年成为律师。在他出任高等法院法官及移居吉隆坡前，当执业律师快20年。 他是其中一名第一批从高等法院法官擢升为上诉庭法官的人选。上诉庭在1994年，地位介于联邦法院和高等法院之间。 他的第二本著作《如何审判法官》（How to Judge the Judges），预料将在今年中出版。其实，他已经把该著作的完整版交给出版社，但出版社要他把霹雳宪政危机的内容纳入书中；由于此事件还在发展中，因此新书暂停出版，他也必须把一些资料补进后记里。 在这个独家访问中，这名曾获霹雳州苏丹阿兹兰莎（Sultan Azlan Shah）推荐而坐上法官席的退休法官，告诉《马来西亚局内人》（Malaysian Insider）为什么他必须把事情的真相讲出来。 问：不像其他退休法官，你常大声批评我国司法，是什么导致你这样做？ 答：首先，我不是与司法对抗。我肯定我国有一些好法官，只是他们没有在这次的霹雳宪政危机上体现出来。 我期望冯正仁（James Foong，现任联邦法院法官）一如既往做对的事情，不过他没有。我想，身为上诉庭法官，要在联邦法院会审中作出异于其他法官的判决，需要很大的勇气。 回到你的问题，我身为法官时，必须诚实面对良知的呼唤，因为我知道，司法的精髓就是公正的审讯，法官的职责就是依法施法。 英国著名法官戴维林（Lord Devlin）在其著作《法官》（The Judge）的第四页写道：“公正不阿是法官最崇高的品德。最重要的是裁决，如果它是不腐败或毫无错误的，那它可以被接受。要成为不腐败的法官，就必须背负公平审讯的职责。” 另外，戴维林法官在同书第85页提及：“第一项――应该也是说明全部的――法官的任务是依照法律执行任务。” 回到第三页，该书写道：“法官的功能是什么？加菲伊教授（Professor Jaffe）在其著作《作为立法者的英美法官》（English and American Judges as Lawmakers）第13页有一句话形容它――在应用现行法律时，没有利益上的考量。” 这表示，法官的唯一职责是在裁决的当儿，应用现行法律时没有利益上的考量。现行法律指的是基本法，意指普通法和一般法规等。 懂得作正确的判决，却无法体现中立的法官，在司法程序中是没用的。法官的职责或功能就是根据法律和提给他的证据裁决。 你如何指谓没有依法施法的法官？叛变的法官？所以，你现在知道，我为何总是敢大声劝导一些没有依照明确的法律执行任务的法官。 问：在霹雳宪政危机的课题上，你表现得很不客气。为什么？ 答：你是指我直言不讳？你会如何称呼，一位没有依照和应用简单易明及毫不含糊的法律执行任务的法官？《联邦宪法》第72（1）条款阐明：“任何州立法议会的会议程序是否有效，任何法院都不可质疑。”  这道法律应用在所有议员――无论你来自民主行动党、人民公正党、马华公会或任何政党，即使是个小孩都能理解其简单的语言。我们不需要联邦法院为我们诠释这个文字的意思，也无需劳驾新加坡法学教授告诉马来西亚人，法院对国州议会事务有司法复核（judicial review）权力。在我国，立法权和司法权是分开的。我们都知道，一个人可以针对行政机关的行动向法院申请司法复核，但是，从来没有司法复核应用在立法事务上――否则，对一些我们不喜欢的立法如《内安法令》，我们应有权作司法复核。 很久以前，当我还是高等法院法官时，我曾毫不犹豫地把许多罪犯送上绞刑台。可是，我个人反对死刑，因为它非常残忍；不过，身为法官，我必须依照法律执行任务。 套用丹宁法官（Lord Denning）的话：“要如何执行本国的法律，是法官的职责；如果他们疏于职守，而且是明知故犯，那么他们自己也有滥权之嫌。” 我从来没有想过要这样做。 问：为何你要公开你的想法？我想了解为何你卷进去？ 答：我只是一名局外人，我不在乎。但是当每个人都失焦，有些人甚至完全没有读过《霹雳州宪法》，我想这是人们何以愤怒的最佳解释了。 问：为什么你认为人们气愤？ 答：你知道为什么霹雳人群起反抗霹雳州苏丹吗？任何律师都会告诉你，更何况他是前最高法院院长，在你做决定之前，你不能见任何政党，如果你要见任何政党，就需召见双方。你不能只见一方就作决定，否则输了的一方或任何观察者都会认为你已受影响，因此这是印象的问题。 他们生气苏丹，因为他们打从内心感觉到，先见另一方是错误的。 问：苏丹犯了道德错误还是法律错误？ 答：如果苏丹有行政权，那是法律错误，他们可以就苏丹的决定申请司法复核。但是，我在我的第一篇文章就提到，苏丹没有行政权，因为他并非行政君主（executive monarch），而是立宪君主（constitutional monarch），他已犯了道德错误。 问：你在法官任内应该目睹了许多事情，马来西亚的司法体系有什么问题？如何纠正？什么因素阻碍了改变？ 答：我不认为我们的司法体系有任何问题，我们应关注的是司法界的人。权力令人腐败，如果我们遴选适当的人――即不恋权、持平、依法施法的人当法官，我们将有骄人的司法体系。 我们曾经有过。如果公众普遍认为现在的法官未达水平，就用投票权改变现状。 在1906年大选，英国人推翻保守党政府，因为他们不满法院就Taff Vale火车公司案件所作的判决。（注：1906年，Taff Vale火车公司起诉火车公司职工会 这个案件带来了巨大的政治后果，在1906年大选，在野党保证为工会争取豁免权。 丹宁法官在他的著作《法律的界碑》（Landmarks in the Law）第121页指出：“大选的结果有如地震……工会取得压倒性的胜利。国会即刻制订了《1906年劳资纠纷法令》，这有可能是法典中最重要的一道法令，它扭转了所有判工会败诉的法院判决。Taff Vale案的判决被否决，之后再没有工会可因其会员的错误作法遭起诉。其基础是无法被掠夺的。” 一句著名的西班牙格言说，“与狼作伴就学会吠（近墨者黑）”（He who goes with wolves learns to howl），如果选民不相信法官，他们将迁怒于遴选法官的政府。 问：马来西亚人普遍认为无力正面改变司法机关，因为他们缺乏法律知识。你同意这看法吗？你认为他们该如何合作，以便带来所要的改变？ 答：我想这就是真正的问题，在很多时候，当你在报章上读到一个法院判决时，普罗大众难以知道它是否正确，而我们通常都当那判决是正确的。 我察觉到这个问题。因此我认为我应该以简单的语言讲解课题，以让所有人都能自行判断，到底法官做对了吗？ 丹宁法官精明地用一般读者都懂的语言解释复杂的法律。现在，通过阅读我的作品，人们明白如何审判法官。若他们感觉被法官欺骗了，他们可向1906年的英国选民学习，在来届大选中行使投票权，换掉政府。  为了得到人民的选票，在野党可以向社会承诺不会重蹈法官之覆辙。他们可以承诺，如果人民授权他们组织下一届政府，他们将在国会立法监督联邦法院的不公正判决，例如阿多那产业对垒温宋案（Adorna Properties vs Boonsorm Boonyanit）、东合保安纸厂案（Asean Security Mills）、安华案（PP vs Datuk Seri Anwar Ibrahim）及联邦法院在霹雳宪政危机案件中的所有判决，都没有依法律裁决――法院公然拒绝应用《联邦宪法》第72条款。他们也可以承诺开除那些糊涂的法官。丹宁法官在《法律的未来》（What Next in the Law）第319页中指出：“国会是至高无上的。国会的立法都必须严格遵守，不论它是多么不合理或不公正，法官別无选择，必须遵守。法官必须执行现行法律。” 可是，那些糊涂的法官，尤其是联邦法院的五个法官，却拒绝使用现行的《联邦宪法》第72条款。 在《马来西亚的司法机关》（The Judiciary in Malaysia）第88页，联邦法院首席大法官阿都哈密（Abdul Hamid Omar）说道：“……关于将法官撤职的条款已经国会处理……已经修改为成立一个撤除法官的特别仲裁委员会。” 这是不正确的，因为《联邦宪法》第125（3）条款只适用于联邦法院法官。 1988年，当最高法院院长沙烈阿巴斯（Tun Salleh Abas）与马哈迪起争执时，《联邦宪法》第125（3）条款允许基于“行为不检或无能”的理由将联邦法院法官撤职。 《联邦宪法》第125（3）条款阐明：“倘若首相或最高法院院长征询首相的意见后，向最高元首陈情说，某个联邦法院法官行为不检, 或因身体或精神疾病或其他原因而无法执行任务，应被撤职。国家元首应根据第125（4）条款的规定，委任一个仲裁委员会，将该陈情交给仲裁委员会，方可根据仲裁委员会的建议将法官撤职。” 《联邦宪法》第125（4）条款写道：“上述仲裁委员会应由至少五个曾经或正在担任联邦法院、上诉庭或高等法院法官的人组成；或者，倘若国家元首认为适合，可委任在共和联邦国家担任, 或曾担任相等职位的人，担任主席, 先后次序如下：联邦法院院长、首席法官（根据他们之间的优先顺位），以及联邦法院其他成员（按照他们出任法官的年资，倘若两人受委日期相同，则年龄较高长者优先）。” 《马来西亚的司法机关》第89页（请特别关注这部分，因为它很重要）写道：“直到1994年的最新修订为止，撤除法官的理由还是“行为不检或无能”。不过，1994年的修订将“行为不检”一字换成“任何违背《联邦宪法》第125（3A）条款之行为守则的行为……”这项修订的结果是，除了因身体或精神疾病或其他原因而无法执行任务外，法官可因违背行为守则而被撤职。” “《联邦宪法》第125（3A）条款阐明的行为守则可约束所有法官，包括联邦法院法官、上诉庭法官和高等法院法官。” 《1994年法官行为守则》第2（1）条款说明：“法官任期内皆受此行为守则所约束。” 《1994年法官行为守则》第2（2）条款说明：“任何违背行为守则的行为是构成法官被撤职的理由。” 因此，现在我们知道，任何法官若在任内违背《1994年法官行为守则》，他可以被撤职。 《1994年法官行为守则》第3（1d）条款是应用在失职的法官身上，它阐明：“一名法官不应该作出不诚实，或任何足以导致司法体系失去声誉和诚信的行为。” 我认为《1994年法官行为守则》第3（1d）条款说得非常清楚――我们都明白它的意思――如果一名法官作出任何足以导致司法体系失去声誉和诚信的行为，像那些没有依法执法的失职法官，他们可被撤职。这有点严重，可是我们可以这样做。 本文原载《马来西亚局内人》（Malaysian Insider），《独立新闻在线》获授权翻译及转载，英文原文点击：N.H. Chan: An inconvenient judge |
陈炘铠的第一本著作N.H. Chan: An inconvenient judge
Chan tells why he feels compelled to speak out. — Picture by Choo Choy May
IPOH, April 30 — Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp.
At 74 years old and with ruddy smooth cheeks under a full head of snowy white hair, few would connect him to the acerbic, no-nonsense former judge Datuk N.H. Chan, who has in the last couple of months done the unthinkable: fire away missives at judges who have trampled on the Federal Constitution in deciding issues related to the power grab in Perak. His lengthy articles have reminded Malaysians of a time gone by when towering individuals sat on the Bench and simplified the Perak constitutional crisis for the common man.
Still seething over the events that transpired in Perak and decisions of the apex court, he says that if Malaysians are upset with the state of the judiciary and think that the present crop of judges are not up to the mark, they should exercise the power of their vote to change the state of affairs in the country.
Born in Ipoh on March 27, 1935, Chan was admitted to the Bar in 1961. He was a lawyer for almost two decades before becoming a High Court judge and moving to Kuala Lumpur.
He was among the first batch of High Court judges to be elevated to the Court of Appeal, set up in 1994 to act as an intermediate court between the High Court and the apex court.
Chan's first book, “Judging the Judges”, was published in 2007 and is a collection of his articles for the Perak Bar. Only 1,000 copies were published.
His second book, “How to Judge the Judges”, is expected to come out some time in the middle of the year. The final draft has just been sent to the publishers. They wanted him to include the Perak saga as well, but because it is ongoing, he had to draw a line somewhere. He has included some information in the epilogue.
In an exclusive interview, the former judge, who was recommended to the Bench by none other than Sultan Azlan Shah, the Sultan of Perak and a central figure in the present crisis, tells The Malaysian Insider why he feels compelled to speak out.
Q: Unlike many former judges, you have been very vocal in your criticisms against the judiciary. What drives you?
A: In the first place, I am not against the judiciary. I am sure there are some good judges around, only they have not manifested themselves in the present constitutional, should I say, crisis in Perak.
I expected James Foong JCA (as he then was, he is now a Federal Court judge) to do the right thing but he failed to do that. I suppose it takes great courage for a Court of Appeal judge who sat as a winger in the Federal Court to give a dissenting judgment.
Now, back to your question. When I became a judge I had to be true to my calling which is to know that the essence of justice is fair trial and the duty of the judge is to administer it according to law.
Lord Devlin in his book “The Judge”, wrote on page 4: “...impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial.”
And at page 85 he said: “The first — ought one to say the whole — duty of the judge is to administer justice according to law.”
Back to page 3, the book said: “What is the function of the judge? Professor Jaffe has a phrase for it — 'the disinterested application of known law' (Jaffe in his book “English and American Judges as Lawmakers”, page 13)”
This means that the judge's only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.
The judge who gives the right judgment but does not appear to be impartial is useless to the judicial process. After that, the judge's whole duty or function is to decide the case according to 
law on the admissible evidence before him.
And what do you call a judge who does not administer justice according to law? A renegade judge? So now you know why I am so vocal when I admonish the errant judges who did not apply unambiguous law as it stands.
Q: You have been especially blunt in your views over the issues in Perak. Why so?
A: You mean for calling a spade a spade? What do you call a judge who doesn't follow or apply easy to understand and unambiguous statute law as it stands?
Like Article 72(1) of the Federal Constitution which says: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.
This law applies to all members of the legislative assembly — it does not matter if you are DAP or PKR or MCA or Barisan Nasional or any political party. Even a child could understand the plain meaning of the words. We do not need the Federal Court to interpret (meaning “explain the meaning of”) the words for us. Nor do we need any law professor from Singapore to tell us Malaysians that the courts should have the power of judicial review over what has transpired in Parliament or a Legislative Assembly.
There is separation of powers between the Legislature and the Judiciary of this country. We all know that one can apply to the courts for a judicial review over executive actions. But there is no such thing as judicial review over what transpired in the legislature — if there is such a thing then we can have judicial review over the passing into law of certain Acts of Parliament that we don't like — like the ISA.
A long time ago when I was a High Court judge, I have sentenced many criminals to death without qualms. But personally I am against the death sentence because it is barbaric. But as a judge I must apply the law as it is.
To quote Lord Denning: “It is their [the judges] duty to administer and apply the law of the land. If they should divert it or depart from it — and do so knowingly — they themselves would be guilty of a misuse of power.”
I would never dream of doing such a thing.
Q: Why did you choose to air your views so publicly? I'm trying to understand why you got involved.
A: I'm only an outsider and I don't care. But when everybody is missing the point and all that — and some of them have not even read the Perak Constitution, I thought I better explain why the people are angry.
Q: Why do you think the people are angry?
A: Do you know why the Perakians were up in uproar against the Sultan of Perak?
It's because, as any lawyer will tell you, especially as he was Lord President before, that before you make a decision, you cannot see the parties. If you want to meet any of the parties, both of them must be present. You never do so by seeing one and then making a decision. The moment you do that, to the losing side or to any observer will think you have been influenced. So it's the impression that counts.
They were angry with the Sultan because they can sense it in their bones that it is wrong to make a decision to see the other side first.
Q: Is the Sultan morally wrong or legally wrong?
A: If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan's decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.
Q: You must have seen many things during your time as a judge. What is wrong with Malaysia’s justice system? What can be done to correct it? And what’s stopping the necessary changes from taking place?
A: I don't think there is anything wrong with our judicial system. It is the players that we should be concerned with — if we get the right people on the Bench, that is, those people who are not interested in power — because power corrupts, those fair-minded individuals who would administer justice according to law, then we will have a judiciary to be proud of.
We used to have that at one time. And if the general public think that the present crop of errant judges are not up to the mark, then the remedy is to use the power of the vote to change the present state of things.
At the general election of 1906 the common people of England toppled the Conservative Government of the day because they were unhappy with the decision of the House of Lords in the Taff Vale case which had virtually put an end to trade unions six years earlier.
That case had immense political consequences. At the general election of 1906 the opposition pledged complete immunity for trade unions.
Lord Denning said in his book “Landmarks in the Law”, page 121: “The result of the general election was like an earthquake. ... It was a sweeping victory for the trade unions. Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”
There is a well known Spanish proverb which says, “He who goes with wolves learns to howl.” So that if the electorate don't trust the judges they tend to put the blame on the government who put the judges there.
Q: Many ordinary Malaysians today feel powerless to affect positive changes to the institution of the judiciary because they lack legal knowledge. Do you agree with this view? How do you think they can work to bring about the change they want?
A: I think the real problem is this. In most cases when you read about a court decision in the newspapers, the judgment of the court is expressed in such a way that the average reader will not know if the judge is right. So invariably, we assume that the judge must be right.
I do realise the problem, so I thought I should try to explain the issue in simple language so that everyone will be able to judge for himself whether the judge is doing the right thing or not.
Lord Denning was famous for explaining difficult law in such a way that any lay reader can understand it. Now that they know how to judge the judges by reading my articles, they could, if they thought they have been short-changed by the judges, do the same thing as was done by the electorate in 1906 England. They have the power to change the government of the day by their vote in the next general election.
The opposition, in order to get the people's vote, could pledge to undo all the wrongs done to the community by the judges. They could pledge that if they were given the mandate of the people to form the next government, they would pass an Act of Parliament to overrule such unjust decisions of the Federal Court such as Adorna Properties vs Boonsorm Boonyanit, the Asean Security Mills, PP vs Datuk Seri Anwar Ibrahim as well as all the decisions of the Federal Court pertaining to the Perak constitutional crisis which were not decided according to law — where the court had blatantly refused to apply Article 72 of the Federal Constitution.
They could also pledge to remove the errant judges from office. This is how it could be done.
In “What Next in the Law”, Lord Denning said, page 319: “Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”
Yet the errant judges, especially the five in the Federal Court, have refused to apply Article 72 of the Federal Constitution as it stands.
In his book, “The Judiciary in Malaysia” (Asia Pacific Publications Sdn Bhd, 1994) the then Chief Justice of Malaysia Tun Abdul Hamid Omar said, page 88: “... the provisions dealing with the removal of judges in pursuance of an address in Parliament … was modified to provide for a special tribunal to be established for the removal of judges.”
That is incorrect. Actually Article 125(3) of the Federal Constitution only applies to judges of the Federal Court.
At the time of the fracas between the then Lord President Tun Salleh Abbas and Prime Minister Datuk Seri Dr Mahathir Mohamad in 1988, Article 125(3) of the Federal Constitution provides for the removal of judges of the Federal Court on the ground of “misbehaviour or of inability”.
Article 125(3) and (4) reads:
“125(3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of misbehaviour or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.
“125(4) The said tribunal shall consist of not less than 5 persons who hold or have held office as a judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).”
The book “The Judiciary in Malaysia” said — this part is significant so do pay special attention to it — page 89: “Until the recent amendment in 1994, the grounds for the removal of a judge was 'misbehaviour or of inability', The Constitution (Amendment) Act 1994, however, substituted for the word 'misbehaviour', the words 'any breach of any provision of the code of ethics prescribed under Clause 3A...'. The effect of this amendment is that, besides the inability, either from infirmity of body or mind, or any other cause, properly to discharge the functions of his office, a judge may be removed if he has breached the code of ethics prescribed for judges.
“Article 125(3A) provides that the code of ethics shall be observed by every judge, be it, the judge of the Federal Court, the Court of Appeal or the High Court.”
This is what Section 2 of the Judges' Code of Ethics 1994 says:
“2(1) This Code of Ethics shall apply to a judge throughout the period of his service.
“2(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.”
So now we all know that any serving judge could be removed from office for a breach of any provision of the Judges' Code of Ethics 1994.
Section 3(1)(d) is the provision in the Code of Ethics to apply against the errant judges. It reads: A judge shall not conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto”.
I think the words in Section 3(1)(d) are clear enough — we all know what they mean. So that if a judge brings the judiciary into disrepute or discredit, as the errant judges have done by not administering justice according to law, they could be removed from office under this provision. It's a bit harsh, but it can be done.
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