A lawyer failed in his bid to expunge Penang High Court judge R K Nathan's outburst against Court of Appeal judge Gopal Sri Ram which was incorporated as part of a judgment in an unrelated road accident case.

The Kuala Lumpur Court of Appeal today declined to hear the expunge application made by lawyer P R Manecksha after dismissing his original application for leave to appeal against Nathan's decision in the accident dispute.

Court of Appeal judge Mokhtar Sidin said since the court decided not to proceed to hear the appeal, it would be improper for it to hear the application to expunge Nathan's open accusation against his peer of making personal attacks.

"I know you are trying to do a service to the judiciary. But since there is no appeal before us, we cannot hear your application," said Mokhtar who sat with judges Abdul Kadir Sulaiman and P S Gill.

He advised Manecksha to refer the matter to Chief Justice Mohamed Dzaiddin Abdullah who can make the proper decision to resolve the matter.

The court agreed that the leave application should be heard before it can consider the expunge application which is part of the appeal proper.

When Mokhtar was referred to the case of 'Insas Bhd vs Ayer Molek' in which the Federal Court expunged part of the statement made by a judge against a peer, he said: "Do you know the amount of controversy the case had produced?

"The controversy continued for years. I don't want to appear in some international website all over the world and be accused of so many things."

Unwritten rule

Although he could not hear the application, Mokhtar said he would like to remind all judges and magistrates that there is an "unwritten rule" that the court should to refrain from making comments especially against their own colleagues.

"When a person sits as a judge or a magistrate, his sole duty is to administer justice. When we know that judges had erred, it is not for us to comment. The most we can say is that the learned judge was wrong. But we should never mention names.

"Even if you think that the judge is not learned, then just say 'the judge'. You have to keep your personal and emotional feelings from the bench," he said.

He also said that lawyers should apply the same principle and not mention the name of the judges when submitting against a decision.

Mokhtar said if any party felt they were insulted in open court, they should lodge a complaint with the leaders of the judiciary — Chief Justice, Court of Appeal president, Chief Judge of Malaya and Chief Judge of Sabah and Sarawak — who were appointed due to their wisdom and vast experience.

He also expressed hope that the judgment will not be published or recorded in any law reports.

"But this is not a direction. We have no power to do so. We just hope that it will not be published. But if anyone decides to publish it, then we cannot stop them. It will not be contemptuous," he said.

Manecksha told reporters later that he will consider writing to the chief justice regarding the matter as advised.

Personal attacks

The lawyer, who was representing car driver Yusri Mohamad and passenger Ramli Saad, wanted to expunge the last five pages of Nathan's written judgment under the heading 'Personal Attacks of High Court judge by a Court of Appeal Judge'.

Nathan read out part of the judgment on July 31 when he dismissed the appeals by Yusri and Ramli who were ordered to pay compensation of RM100,000 to motorcyclist Aznan Mohamad and his wife Dayang Kartini Zulkifli.

Nathan claimed that Gopal not only made personal attacks against High Court judges but also targetted him for personal vilification in open court.

Although Gopal as an appellate judge had every right to criticise his judgment, Nathan said he will not accept the latter's personal attacks against him.

"Against the latest judgment of mine in which he sat to hear the appeal, he accused me of being vindictive and (passing) judgment to satisfy my ego," said Nathan in the judgment.

The judge was referring in particular to Gopal's comments made on July 25. The latter, when setting aside Nathan's conviction of a lawyer for contempt of court, said that judges should not launch contempt proceedings vindictively and "purely for personal ego".

Gopal was said to have made the remark "off the cuff" when he and two other Court of Appeal judges Abdul Kadir Sulaiman and Allaudin Mohd Sheriff set aside the RM10,000 fine imposed on lawyer Lee Chan Leong for committing contempt in April 1999.

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