A video showing top legal office holders, including apex court judges, dancing with lawyers in the Legal Year Gala Dinner at Kota Kinabalu had gone viral and attracted criticisms, including that it is in breach of the Judges’ Code of Ethics 2009, which among others requires judges to avoid close association with lawyers who appear before them.
This was a code made under amended Article 125 of the Federal Constitution and enforceable through a mechanism provided in the Judges’ Ethics Committee Act 2010.
” It also similarly restricts the freedom of judges to appear before any official body concerned with matters relating to the law, the judicial system and administration of justice. “
The code is statutory in nature by virtue of being made under the Federal Constitution and entrenched by the 2010 Act.
Views and arguments on whether there was indeed a breach of the code are divided as it will be in any controversial subject.
Leaving aside that issue, paragraph 8(5) of the code requires a judge to obtain approval from the CJ to write, give lecture, teach and participate in activities concerning the law, judicial system and administration of justice.
It also similarly restricts the freedom of judges to appear before any official body concerned with matters relating to the law, judicial system and administration of justice.
It further restricts the freedom to serve as members of official bodies devoted to improving the law, judicial system and administration of justice.
Similarly restriction is also imposed against writing or speaking publicly on non-legal subjects and engaging in historical, education, cultural, religious, sporting or social and recreational activities.
Lastly, restriction on participation in civil and charitable activities.
Added to the above is paragraph 11, that requires a judge to comply with any administrative order or direction issued by the CJ, President of the Court of Appeal and Chief Judges of the High Courts.
The code more or less has created a scenario like employer-employee relationship or in some aspect, teacher-student relationship.
The code, by its very nature, is a tool of control of judges by top judges. It has facilitated a culture of the judges being subservient to the top judges and being compliant rather than independent.
The code is oxymoron. On the one hand, it expects independence from the judges, on the other hand, subservience impugning the independence.
The result is contrary to the very basis of judicial office wherein judges must act independently, subject only to tribunalisation in the event of a deserving misconduct.
Tribunalisation is provided under Article 125 of the Federal Constitution, whereby the Prime Minister or the CJ after consulting the prime minister advises the Agong to appoint a tribunal to inquire to an alleged misconduct, and upon recommendation of the tribunal the Agong may remove the judge from office.
In fact the code itself, at least in some aspects, is unconstitutional for infringing freedom of speech guaranteed in Article 10 of the Federal Constitution.
The subservience has yielded its results. Recently a lawyer said to the press, coupled with his statement to the police, that he was aware of interference in Karpal’s sedition case at the Court of Appeal, whereby what would have been an acquittal by majority turned into a conviction by majority.
Such an interference to convert an acquittal into a conviction would be a serious “constitutional crime”.
Similarly, a senior Court of Appeal judge recently said in his speech at an international law conference that he was severely reprimanded by a top judge for delivering a dissenting judgment in a landmark conversion case.
Such an action by a top judge, though not a constitutional crime, would be a serious “judicial misconduct”.
Remarkably, the senior Court of Appeal judge, who was top qualified and had delivered, was subsequently bypassed in elevation to the Federal Court in a most glaring manner.
The alleged interference or misconduct had led the Bar Council to twice ask for RCI, followed by Sangeet suing the CJ in respect of them. Yet no RCI is seen, which the judiciary should welcome as an opportunity for it to clear any negative perception of it.
There does not seem to be such a “statutory” code in most of the countries like the UK or India, but there are internal code of ethics as guidelines in those countries, such as UK’s 2018 Guide to Judicial Conduct and Principles of Judicial Conduct 2002.
To reinstate independence in judiciary and to eradicate any perception to the contrary, the 2009 Code together with the 2010 Act should be repealed. An internal code of ethics should be made a guidance to judges.
If any judge is non-performing and commits a serious misconduct, then he should be tribunalised under Artcile 125.
However, as a safeguard against any abuse or perceived abuse, such tribunalisation should only be allowed if the Bar Council, by majority resolution, approves the same.
Similarly, any appointment or elevation of judges must be made only after consultation with the Bar Council as the top stakeholder. One needs only a bare common sense to say that nobody other than the Bar Council, whose members daily appear before the Judiciary, can be a better consultant in judicial appointments and elevations.
Without such consultation in appointments and elevations, it becomes questionable how integrity and competency in judiciary can be sustained.
The recent elevations to the Federal Court bypassing a top qualified senior judge of the Court of Appeal suffered a lot of negative perception. This would not have happened if the Bar Council was consulted.
Any appointment without such consultation, by itself, would render the appointment vulnerable at least perceptively.
The Malaysian Bar should now, in the new Malaysia, stand up firm to call that Judicial Appointments Commission (JAC) puts an end to the old culture and compulsorily consults the Bar Council before making any appointment or elevation.
Anything short of this will be an embarrassment.
• Arun Kasi is a law practitioner in Kuala Lumpur and a fellow member of the Chartered Institute of Arbitrators.
