What was it like growing up in Peel Road as a child?
I was born in 1932 in Peel Avenue. It was a truly cosmopolitan community and because of this the children there were multilingual. I spoke Tamil, Malayalam, Cantonese and Malay. It was wonderful training in getting on with people without discriminating on grounds of race or religion and a good moulding for the kind of man I eventually became.
Your primary education was interrupted by the Japanese occupation. Tell us about how this experience affected you.
In 1941 I was in Primary 2 of the Pasar Road School. At first, war seemed to us to be an exciting business, but when the Japanese got close to Kuala Lumpur my family moved, first to the Glenmarie Estate near Klang where most of the Brahmin community had gone, and then to stay with old family friends who had a bungalow off Lorong Seputeh in Old Klang Rd. However, by early February 1942, we returned to Peel Road. Singapore fell on the 15th February 1942 and the Japanese took over the administration of the Peninsular immediately after that.
By May 1942 we were back to School where we were taught Japanese songs, and how to read and write Japanese.
By March 1943 however, the food shortage had become so chronic that my brother and I had to work in the Oki Denki Kabushiki Kaisha at the PNT workshops near the Main Railway Station. We walked about 8 miles each way. I was barely 11 years old. We left the house at 5.30 a.m. and got there by about 7.30. Our breakfast before we left home was one glass of Ragi (red millet) porridge.
My companions at work were all adults and I matured very quickly with an impressive stock of swear words that I articulated often without knowing their full meaning.
We worked six full days per week with no holidays except for Sundays. For the evening meal, again we’d have more Ragi porridge, boiled tapioca, or sweet potatoes but on some evenings, we were lucky to have rice.
When the Sentul Railway Workshop was bombed by the Allies in mid-1944 my parents forbade me to return to Oki which they thought would be the next target since the railway station was on the other side of the road.
I soon found a job nearer home as a junior storekeeper in the Tokyo Shibura Kabushiki Kaisha (now Toyota) in Jalan Pudu opposite the Tung Shin Hospital. I worked there until early September 1945, when our boss Hashigawa told us all to go home. The next day, we heard that Japan had surrendered after atom bombs had been dropped over Hiroshima and Nagasaki.
The Japanese occupation taught me what no university in the world could have done. Street-smart, results-oriented, with a fairly good grasp of human psychology and knowledge of the value of a dollar. The University of Life had bestowed me with the mental age of a young adult when I was only 14 years old. I was lean mean and very hungry since I weighed a mere 45 pounds and looked like a scarecrow.
Tell us something of your time in the Victoria Institution where you topped the class in your penultimate and final years.
My academic dominance over the others in my class was due in no small measure to the considerable amount of reading I had done and the level of maturity I had acquired. Our teachers were very dedicated and knew how to bring out the best in us.
My war-time friends all left school for university in Singapore much earlier. During school holidays I had to go to Singapore to squat in the Dunearn Road hostels to be with them. There I witnessed such barbaric ragging, I decided that I would not go there for my tertiary education.
Success in later life for me and my contemporaries should be attributed more to the powerful influences we were exposed to when we went abroad where we soon found we could compete on equal terms with the white man.
Why did you choose to study law and did your father play a role in influencing your decision?
Originally, I wanted to qualify in Edinburgh as a doctor… I changed my mind when my father ordered me to Singapore instead on a Government scholarship which was the very fate I was determined to avoid. I discovered that if I opted for Law I would have to be sent to England since Law was one subject the university did not cater for.
Despite my about turn, Dad was thrilled I’d chosen his family’s traditional profession and made immediate arrangements for me to be admitted into the Inner Temple.
How were your student days in Inner Temple?
My monthly allowance of 25 pounds shaped my life.
I lived in “digs” in North London at a weekly rental of four guineas for board, breakfast and dinner. My monthly season ticket on London Transport cost me three pounds and ten shillings. From what remained I had to save three pounds per month for my tutorial fees and the balance on a daily glass of milk at six pence at lunchtime at the Council of Legal Education’s canteen at No. 7 Stone Buildings in Lincoln’s Inn. These were days of great penury.
The following 16 months were spent incarcerated in Gerald Hart’s Chambers at No. 2 Farrar’s Building in the Inner Temple. He locked us in from 9.30 a.m. to 6 p.m. every day with only a one hour break for lunch and half an hour for tea. The discipline was so fierce the Malaysians re-named it “Heart Break House”. He set us “topics” which we had to research from standard text books, and, periodically we had to sit for “mock exams”. It was mostly self-study with the minimum of lectures. I cleared my Bar Finals by the end of 1954.
Most of my contemporaries at Heart Break House were again older than I was. Sir Learie Constantine, the great cricketer, sat right next to me right to the end. The Malaysians there who came after me were Eugene Khoo, Harun Idris, Syed Othman (for a brief spell), Syed Agil, Azmi Kamarrudin and Hamzah Salleh, all of whom later entered the Legal and Judicial Service.
Dinners in the Inner Temple were fun but apart from that, recreation was limited to weekend visits to Hans Crescent in Knightsbridge which was a student’s hostel for colonial students, and subsequently Malaya Hall for a meal and then a walk in Hyde Park. And there were visits to the Museums and Art galleries where the charges were nominal and the local cinemas where we saw two films for the price of one.
How was your experience in English chambers compared to working back in Malaysia with Shearn Delamore & Co?
After I finished my exams, I went to Plymouth for about six months on attachment to John Foot then a solicitor in Foot & Bowden. I returned to London in mid-1955 to be called to the Bar, after which I chambered for 6 months with a barrister named Ingram Poole.
I accompanied John Foot on all his litigation cases in the Lay Magistrates Courts in Devon. He was one of the famous Foot brothers, Dingle, Hugh, Michael, (John) and Chistopher. I did not get to meet Hugh (then the British High Commissioner in Cyprus) and Michael (then in Wales) but the time spent with the other “Feet” including their venerable father, Sir Isaac Foot was an education in itself.
I shadowed Ingram Poole into the Royal Courts of Justice in the Strand and the Privy Council and since he was also a member of the Western Circuit, to Winchester, Plymouth (Assizes) and Exeter.
Shearn Delamore and Drew and Napier in 1956 was still a white man stronghold. I only managed to get in there because Sir Charles Matthew, then the Chief Justice and my father’s boss, literally ordered Paul Regester to take me in as a legal assistant.
In England I was still learning but in Shearn Delamore I was immediately put to work independently albeit without pay for the first three months.
My big break came when Tan Siew Sin asked Robert Rintoul in Shearn’s Seremban office for an opinion on jus soli (the right of citizenship by virtue of birth) with a view to submitting a memorandum on the matter to the Reid Commission. Rintoul passed the job to me. Siew Sin’s comments earned me an immediate transfer to the Seremban office on full pay in my fourth month of pupillage. Within a few months after that Rintoul left the Seremban office in my charge as a salaried partner.
My working hours were typically from 9 a.m. till late. I had a one hour lunch break and another break at 5.30 p.m. for tea followed by a hard game of badminton, but by about 8 p.m., I was usually back in the office till midnight. We had a month’s leave in the year. Life in England was much more leisurely in comparison.
Who was the most outstanding Judge who made an impression on you when you were Counsel and why?
W. Buhagiar without a doubt. He was Maltese, a Rhodes Scholar, and head and shoulders above all the other judges. His judgments in P.P. v Saminathan and Anthonysamy v P.P. are good examples of his judicial brilliance. Despite all this he was a very patient judge, especially with the younger members of the Bar.
Owing to space constraints I must save my comments about the other outstanding Judges for another occasion.
You served as a judge under Azlan Shah, Salleh Abbas, Hamid Omar and Eusoff Chin. What are your views regarding these Lord Presidents/Chief Justices?
To say I served “under” would be a misnomer. All Judges are equal and the Chief Justice is only the first among equals or primus inter pares. We should not lose sight of this if the independence of the judiciary is to be preserved in the letter and the spirit of that institution.
D.Y.M.M. Raja Azlan was the President of the Sessions Court in Seremban when I started practice in 1956. He then went on to become perhaps the youngest High Court Judge in the Commonwealth. His patience on the Bench was monumental. Tuanku wrote beautiful judgements. The love and the learning of the law which he inspired is reflected in the Law Faculty Building and the Annual Lectures which carry his name.
Tuanku loved everything that went with the good life. Golf was ever a hobby. His contribution to the advancement of Malaysian Hockey was legendary.
The day I was elevated to the Bench on the 1st August 1983, Tan Sri Abu Talib announced the proposed abolition of the Privy Council and not long after that, Tuanku left the Bench to assume his Royal Heritage as Sultan of Perak.
Tuanku is assured of his place in History.
I am not comfortable about being requested to state my views about Tuanku’s successors to the apex judicial office. In deference to my interviewers who have taken a lot of trouble to put this together let me say this.
My relationship with Tun Salleh Abbas and Tun Hamid Omar was of a different order in that, for many years I was their colleague in the Judiciary and shared many collegiate confidences I would not have been privy to otherwise. Inevitably my views about them would be coloured by these experiences. There were good times and other times which were not so good.
Tun Salleh Abbas, Tun Hamid Omar and Tun Eusoff Chin each have had their share of flak from various quarters outside the Judiciary.
I don’t think it is desirable to go on record with gratuitous comments about them at this point in time, firstly, as they are not here to tell their side of the story and secondly, it could create a very undesirable precedent which will not be in the best interests of the Judiciary.
Those who hold adverse views about them need to remind themselves that Judges don’t act in a vacuum and the lawyers who appeared before them also have a share in how the ultimate verdict was formulated. The path to hell is too often paved with good intentions.
Hopefully time will heal all wounds and it is therefore better to let history be the judge of the eras of each and every Judge (including myself). Of course we have to listen to many voices to discern the truth including Mark Antony in his funeral oration for Caesar where he said:-
“The evil that men do lives after them;
What is your opinion on the 1988 Judicial Crisis?
If by “opinion” here is meant the correctness of the verdicts in some absolute sense, it is impossible for me to give an unqualified answer. The Inquiries were held behind closed doors and all the information I had was pure hearsay from publications like May Day for Justice, Raja Aziz’s work, and more recently the articles by George Seah in Aliran which carried a high degree of credibility.
I was a serving Judge at the time and quite insulated from the members of the Bar (whose conduct was nothing short of heroic) or the other personnel associated with the handling of these Inquiries. The verdicts when they came were the cause of great sadness for me personally. This mood was not made better by someone’s bright idea to place one of the chairs in Tun Salleh’s house in Conlay Road in my Chambers in Shah Alam! I presume that the other Judges also got their share of these “spoils”!
On a wider level I think it is fair to say that there was a catastrophic dilution of public confidence in the Judiciary after the depositions which was contributed to in no small measure by two factors – one of which was the failure of those concerned to rebut the allegations and secondly, the rapid rise to high judicial office over the heads of their more senior colleagues by some of the participants in that Inquiry.
What is your opinion on our current judicial system and how could we improve the quality of the administration of justice in our country?
When it still takes seven years for the High Court to hear a simple case of negligence, how can one say the current judicial system is not in a very sorry state? It is the old story of justice delayed justice denied. There are so many well worn excuses for this disgraceful state of affairs that it is time to think outside the box.
Despite complaints that there is too much work and not enough judges it is a blunt fact that we have over 11,000 lawyers in the Country. About 40% are under-employed, another 30% may actually have no real work to do and the better work is monopolised by a small coterie of legal eagles. Considering that many of our Magistrates and Presidents have only recently qualified, what would be so terrible if the Bar put up a list of legal practitioners who are prepared to volunteer to sit as ad hoc judicial officers and dispose of the case load once and for all? A list can be put up on the Court notice board and litigants can opt for a “judge” of their choice. Courts have power under Arbitration Act to make appointments with the consent of the parties and arbitral awards can be registered and immediately enforced in the same way as court judgements. The usual safeguards can be implemented to avoid suggestions of bias etc. Parties can also agree that there should be a right of appeal to the next tier.
Another matter of high priority is to ensure that the staffing of the Court administrative arm reflect the multi-racial composition of the country.
It is my considered opinion that the inordinate delays arising from the system as it is now structured, if not meaningfully remedied, will eventually result in a melt-down of the system. The appalling rise in crime, the over-crowding of our lock-ups and prisons with remand prisoners and the resort to self-help (i.e. taking the law into their own hands) where it will be counter-productive to resort to the Courts is becoming a cause for grave concern.
So far as appointment of new judges, do you think there should be a greater number of appointments from the Bar?
Not a greater number as a matter of course but I do feel that a substantial number should come from the Bar. This is not a matter for percentages but quality. Provided the candidate has the required number of years in active practice, the experience he/she brings to the Bench will be invaluable in gauging the complexities and nuances of civil litigation.
Practitioner/Judges often tend to forget that they are there to listen and should stay clear of descending into the arena. One good way of inhibiting over-zealous judges is to ensure the new judge does not sit in the State where he was practising. The departure from this tradition in the last two decades has not produced good results.
In my experience, those who come through the government service had little difficulty in listening without unnecessary interruption and keeping an open mind until the end of the case. Their intuitive feel for what was required to preserve social stability was an added advantage.
A related question, do you think judges are under paid? If one were to be a successful practitioner, one would have to take a huge pay cut to be appointed judge.
The emoluments for the work that is now thrust upon them is inadequate and inevitably contributes to a reduction of judicial enthusiasm with a corresponding fall in standards. However, there is no good reason why a successful practitioner should not accept elevation after having provided adequately for his dependents if he is sufficiently fired by patriotism. The fact remains that not only are the current levels of remuneration and pension decidedly unattractive, the disproportionate work load compared to the time available to do a good job is also a powerful disincentive.
Do you think retired judges ought to be permitted to appear as counsel in court proceedings and what about arbitration proceedings?
They should not be allowed back into the courts of the country as practitioners under any circumstances. The reason is obvious. Justice must also be seen to be done. To have someone on the other side who was intimately involved in the administration of that court is to put a litigant at a disadvantage. He is an outsider who has had no dealings with the Judge or Judges hearing the case but his opponent is more than likely to have been a colleague of the Judge thereby creating an impression of apparent bias. The retired Judge is an “insider” who should stay out. The ultimate horror is of course for the retired Judge turned lawyer to tell the Judge, “I decided this point in the case of X v Y and you must follow my decision!!” Ethically, a lawyer who has a personal interest in a case should not appear in that case as counsel and even retired Judges would have a vested interest in seeing their judgements followed.
Under our law, there is nothing to stop a retired Judge from going into Court if he wants to. An inadequate pension could be part of the reason. A loss of professional respect with the Bar arising from disrespectful and unbecoming conduct towards those appearing before him when he was on the Bench naturally diminishes his opportunities of joining an established firm thereby forcing him to go into practice on his own.
However, in all Commonwealth Courts (except possibly India) it is not done for retired Judges to appear in their Courts. In some of them e.g. Australia, New Zealand and Hong Kong Judges on appointment are actually required to sign an undertaking that they will not return to practice. In Singapore this prohibition has been enacted into the Law.
You are of the view that a retired judge can appear as advocate in arbitration proceedings as oppose to as an arbitrator?
I think he should be allowed to make that choice for himself. But it would be a rarity for any self respecting Judge to want to be a combatant in an adversarial context. Reported decisions are regularly cited as law even in arbitration proceedings as Judge made law and it would be an invidious thing for a Judge to have to cite his own cases to resolve a contested point.
What about a cooling off period?
As a general rule, I do not think any cooling period should be required if a Judge wishes to join any particular firm as a Consultant or to accept appointment as an Arbitrator in any private dispute.
Serving Judges should not be negotiating terms with outside parties while they are still on the Bench because it gives rise to suggestions of undue influence. After they are fully retired they are of course free to do so because the negotiations are being done at arms length. The time this takes should automatically provide a cooling off period which minimises speculation that he is being rewarded for services rendered while he was on the Bench.
A Judge would be putting himself in an invidious position if having decided a case in favour of a particular firm on a particular day, he joins that firm a few days later as a Consultant or as their chosen Arbitrator in a big commercial dispute. The public perception will inevitably be that the Judge must have known when he made that decision that he was going into that firm shortly afterwards.
At your speech during the 12th Commonwealth Conference, you said, “We should continue striving for the Malaysian dream of an integrated global community and we need to exorcise our ethnic jealousies.” Do you think that as lawyers we could take any specific steps to try and achieve integration? It seems as though nowadays there is more and more segregation.
I once thought that the antonym of love was hate. I have since discovered that the true opposite of love is fear. Fear that comes out of ignorance and bigotry and consequent emotional insecurity. This devil must be ruthlessly exposed so that it can be exorcised. Segregating the communities into different ethnic streams politically, legally, socially and even in our educational institutions has perpetuated these problems. The Bar is one of the last bastions where the multi-racial outlook still prevails. JUSTICE is our common concern. This is what we have to preserve. Malaysia is one of the few places in the world where we still have a realistic chance to do so. And the Bar is ideally equipped to take the lead.Relevan thanks Ms Gwendoline Choy and Ms Ou May Jean for their assistance in the interview.
VI Web thanks the KL Bar Committee for their permission to reproduce parts of the interview with Dato' Mahadev Shankar as published in Relavan, Issue No. 3/05 December 2005.