The High Court in Sabah and Sarawak
The High Court in Sabah and Sarawak
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CategoryOpening of the Legal Year

This morning, we are gathered once again in this august assembly to mark an important occasion – the Opening of the Legal Year 2005. It is time for us to reflect on the achievements as well as the misopportunities of the past year and set our sights for the current year. More importantly, it is time to reaffirm our commitment to those salient and basic principles upon which our administration of justice is founded and to which, all of us, the principal participants, must be irrevocably committed.

Today, we can remind ourselves that all of us are but essential members of a fraternity whose duty and responsibility is not only to ensure that the principles I mentioned are steadfastly adhered to but also to serve our community to the best of our ability. The Bar, the Law Officers and the Judiciary compliment each other in their respective roles. Though we may be a trinity, we are not at equal trinity. The role of the Judiciary is unique. In this regard, I can do no better than endorse the following sentiments expressed by the Supreme Court of Canada in the case of Morean-Berube v New Brunswick (Judicial Council) (2002) SCC 11:-

“Our society assigns important powers and responsibilities to the members of its judiciary. Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the balance of Constitutional powers between the two levels of government in our federal state. … Accordingly, from the point of view of the individual who appears before them, judges are first and foremost the ones who state the law, grant the person rights or impose obligations on him or her.

Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed criticism or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary. Another factor which is capable of undermining public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity and good judgment.

The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of their fellow citizens.”
Clearly, the Judges have to bear the onerous burden of discharging their judicial duties impartially to the best of their ability, with despatch and according to law so that public confidence in the Judiciary can be maintained. In this connection, it is, I think, not inappropriate for us Judges to remind ourselves of what that great advocate Sir Patrick Hastings had said about the need to be utterly impartial in the discharge of our judicial duties. In his autobiography he said as follows:-

“It is not an easy task to foretell who will be a first-class judge. The qualities that make an advocate are in no way required upon the Bench, in fact some of the best judges I have known earned very small distinction at the Bar. There is one essential feature in every trial that is only too frequently forgotten. In the interest of the community the one matter of importance is that all parties should be satisfied that they have had a fair and impartial trial. …

In my experience there have been two outstanding examples, one upon each side of the line, and their influence was enormous as each one was Lord Chief Justice of England.

Lord Reading was by far the best Lord Chief Justice I had ever known. True, he had every possible advantage. A magnificient appearance and a beautiful voice were perhaps the least of his judicial attributes. His real claim to recognition during the period of his office as head of the King’s Bench Division lay in his inflexible determination that no litigant should leave his Court dissatisfied with the conduct of his trial. No one has ever left Lord Reading’s Court who could raise one word of complaint against the presiding judge. His courtesy, his strict impartiality, above all his obvious determination that fair play as English men and women understand it should be maintained from beginning to end left an undoubted mark upon the Courts during his period of office, and one which I sincerely hope will never be effaced.

Lord Hewart was the direct antithesis, and it was a tragedy. At the Bar and in the House of Commons his career had been meteoric. He was a brilliant advocate, an astute politician, and as a man a charming and extremely delightful companion, but unfortunately it always appeared to me that he had no judicial sense whatever. I have no doubt that he equalled Lord Reading in his desire to see that justice should prevail in every Court over which he presided. Unfortunately the steps he took in order to achieve that result were those of an advocates and not of a judge. The moment he arrived at a conclusion as to which side should prevail, he appeared, whether he intended it or not, to strain every effort to bring about the verdict which he considered right. As a result, nobody was satisfied and the trial appeared one-sided from the outset. He was a great disappointment. We had expected so much of him. Gordon Hewart was a brilliant personality but he was not a good Judge.”

Certainly, the sentiments expressed by Sir Patrick continue to be relevant today. They provide a poignant reminder of how important it is for Judges to maintain a high level of judicial conduct in all respects.

The Bar has sometimes been described as an institution of antiquity. But it is an institution infused with noble traditions and conventions. Members of the Bar are bound by a code of ethics no less stricter than those which bind the Judges. They must demonstrate, not with words but by conduct, that they deserve the respect of the public and the courts. It is essential that they abide by the high standards of ethics by which they are bound. They must be courageous in defending the rule of law and be competent in the service of their clients. There may be occasions when a judge can be difficult, but it is the essence of an advocate to be fearless in his advocacy, to be able to act positively as an effective mouth-piece of his client, notwithstanding the irascibility or other difficulties he encounters in court. It has been said that the mark of a good advocate is his ability to gain the confidence of the judge before whom he appears. In my view, the surest and safest way to gain that confidence is to be professionally competent.

I would stress the importance of competence because a competent advocate expedites the delivery of justice and enhances the quality of justice. In my view, competence in a lawyer is indispensable to the proper administration of justice under our system of law. I know, speaking with more than 30 years on the Bench, the despair a judge feels when an advocate is ill-prepared on matters of fact and/or matters of law. On the other hand, how expeditiously a case is dealt with when counsel for both sides are fully conversant with the facts and the relevant law.
Of course, merely acknowledging the desirability of competence is insufficient. Nor is it sufficient to believe that by obtaining the necessary academic qualifications (no matter how distinguished they may be), and being enrolled as an advocate and solicitor, competence in the practice of the law can be attained as a matter of course. That is a delusion. To be competent in the legal profession requires continuing education and re-education in the law. The principles of law, unlike the principles of justice, are never static. They change with the times. In a modern society like ours, new laws are continually enacted. Positive laws continue to be altered to meet changes in society and changed circumstances. So to be competent, a lawyer must keep abreast of the law. That, in my view, is a fundamental element of success.

As I look around this assembly, I see very few contemporary faces but I see many youthful ones. This augurs well for the future of the profession for the young in body and spirit has the enthusiasm, the energy and the idealism that is essential in perpetuating the noble traditions of the profession. In this regard, I would adopt the sentiment eloquently expressed by Tun Mohamad Suffian, Lord President (as he then was) when he said in declaring open the 3rd Malaysian Law Conference in 1975:-

“Young lawyers, particularly those who have just left university, are still full of ideals and enthusiasm, and surely they have good ideas for blowing the cobwebs off musty law libraries and the law courts. Academic lawyers trained by a life time of study to analyse and criticise, so as the better to excite the intellectual curiosity of their gifted students, have many views on which laws require changing.”

So clearly, our young lawyers have much to contribute to the practice and development of the law. Indeed, the future of the profession lies with them. It is they who shall carry on the noble tradition of the profession. I have every confidence that they will live up to their obligations.

This morning, we have heard, with great interest, the speeches from the learned State Attorney-General, the learned President of the Sabah Law Association and the learned Senior Federal Counsel reaffirming their commitment to actively assist the Judiciary in administering justice and the rule of law. In recognizing the important role entrusted upon the Judiciary, my colleagues and I therefore welcome and thank the learned State Attorney-General, the learned President, and the learned Senior Federal Counsel for their assurances of support. They have been most encouraging. In their speeches, they have raised certain issues which will require further study and discussion. I have taken note of them. The Judiciary will consider them seriously.

On that note, may I for myself and on behalf of my colleagues, wish all of you a happy, prosperous and successful New Year.