FORTIFYING THE
INDEPENDENCE OF THE JUDICIARY
The very
important issue of the Independence of the Judiciary was recently highlighted
in the media, commencing with an article in the Star on 5/6/2003 at page
16 entitled "Questions over
ex-CJ's new job". This was followed by a letter by Skrine entitled
“Setting the record straight on ex-CJ” which appeared on page 25 of the
Star(7/6/2003). On 8/6/2003 in the front page of the Sunday Mail, the headlines
read “Ex-CJ demands Apology. Lawyers
want withdrawal of daily’s controversial article on Tun Mohamed Dzaiddin.”.
It was a sad day for freedom of
speech, expression and opinion when Justice Mohd Dzaiddin, the first
practitioner from the Bar to
be appointed Chief Justice, made the said demands(if correctly reported, of
course).
On 10/6/2003,
Malaysiakini carried a report entitled “Newspaper apologizes for article on
ex-CJ”. In the Malaysiakini report,
which I now quote, it stated “In its apology, The Star retracted all
statements and allegations made in the disputed article." It has been
pointed out to us that certain statements and allegations in the said report are
completely untrue ... and we desire to express our regret to Tun Mohamed
Dzaiddin bin Hj Abdullah...We hereby withdraw those statements and allegations
and unreservedly apologize to [Mohamed Dzaiddin] for any embarrassment and
inconvenience caused," the paper said in a statement.”.
The Bar Council did
make a statement on this matter on 6/6/2003, wherein it stated “...When a
judge retires and soon after joins a law firm, an area of serious concern that
immediately presents itself is the perception that an offer to do so might have
been made to the judge before his retirement, and discussions or negotiations on
the same might have started or taken place while the judge was still serving on
the Bench; particularly if there is a short time lapse between the judge’s
retirement and his joining the firm. This in turn gives rise to the question
whether the independence of the judge could have in any way been influenced or
compromised by the making of such an offer or the holding of such a
discussion...” In the said statement, the Bar Council went on to state that
“In protection of that principle [Independence of the Judiciary], and after
examining the experience of other jurisdictions, the Bar Council is of the view
that there ought to be a lapse of a suitable period of time (which is often
called a “cooling off” period) after a judge’s retirement before he may be
permitted to practice law at the Bar..”. Although the Star in their 5/6/2003
report did end with the words “All eyes will therefore be on the Bar Council
meeting tomorrow, where the response as promised by Kuthubul [the President of
the Bar], is forthcoming.”, the Star failed
to carry the Bar Council statement. In fact, I believe, the Star who
courageously first highlighted this matter of great concern for all Malaysians,
did not thereafter carry any other report or letter on this issue.
There were also
comments and opinions expressed by many others including also Minister in the
Prime Minister’s Department Datuk Seri Dr Rais Yatim, Mr Karpal Singh and Mr
Lim Kit Siang. We have not yet heard the views of the United Nations Special
Rapporteur of the Commission of Human Rights for the Independence of Judges and
Lawyers, which, I believe, would be
of interest.
There may be no
written law, regulations, codes, rules or even possibly universal standards or
principles that govern the conduct
of judges after they leave their office as judges, but this does not mean that
this is a matter that should not be discussed and considered with a view of
strengthening the Independence of
the Judiciary. From the comments in
the media, including Malaysiakini, it is evident that the question of
perception, as well as the fact of the Independence of the Judiciary are
important matters that requires further deliberations. In fact the Judges Code
of Ethics, that amongst others govern their conduct both on and off the bench,
is a clear indication that perception have always been an major concern.
The importance of
public confidence in a impartial and independent judiciary, was also the subject
of recent comment by Perak Sultan Raja Azlan Shah, who was the head of
the Judiciary from 1982 to 1984, who had in this to say on 24/2/2003 (NST
25/2/2003), ‘Judges, public symbols of justice and freedom, are duty-bound to
uphold the integrity and the credibility of
the court. It is important that judges dispense justice without fear or favour,
free of political ties and the influence of self-interested parties. Only when
judges were fearless in implementing the principles of justice according to the
Rule of Law and supremacy of the Constitution, would the public have confidence
in the courts.’. It is my opinion that this perception of judges must outlast
their tenure as judges - as they will always be public personalities.
When it comes to the
Chief Justice(CJ) , the head of the Judiciary, the third branch of a democratic
government, all the more , the behavior and conduct whilst in office and after
leaving office is of a greater concern.
According to our
Federal Constitution, the CJ have a
role in the appointment of judges
[Art.122B(2)], determining the order of precedence of judges [Art. 122B(6) and
the transfer of judges [Art. 122C) should be of more concern to us in
comparison to any judge. Some members of the Malaysian public also believe
(rightly or wrongly) that the CJ, being
the head of the Judiciary has a role to play in the determining which judge
will hear which case. Some also believe(rightly or wrongly) that the CJ
has a role in empaneling of the
coram of judges in the Federal Court. After the recent Sabah High Court case, it has also come to light that CJs may
and/or can also give instructions(or advice) to judges on the cases they are
hearing. All these are some of the
reasons why when it comes to a past CJ, greater care and concern must be given
to his conduct and/or association after he leaves office - and all this is to
maintain not just fact of the independence but also the public perception of
independence of the Malaysian Judiciary.
The Independence of
the Judiciary should be of paramount concern for all Malaysians, and to ensure
this independence certain constitutional safeguards have been put in place which
includes security of tenure, salary/allowances and also pensions. Art.125(7)
"The remuneration and other terms of office (including pension rights) of a
judge of the Federal Court shall
not be altered to his disadvantage after his appointment.” With reference to
Art. 125(9), this safeguard extends to all judges of the High Court and also the
Court of Appeal.
The specific
inclusion of "pension rights" seem to indicate that welfare of judges
after retirement was also considered. Hence, the views
that “judges need jobs after retirement”, and/or that a “retired
judge needs to eat too” are weakened in
light of the fact that pensions are provided for as part of the safeguards in
our Constitution to ensure an independent judiciary. If it is a question of
lack of money, then what needs to be done is to ensure that the pensions of
retired judges be increased reasonably
so that he/she could maintain a standard of living that he/she has become
used to without being driven to
seek alternate employment. If he needs to work, then maybe we must seriously
consider amending the retirement age of judges from the present 65 to maybe 70
or more - for after all it is sad to lose a still functioning judicious mind by
reason of retirement.
In the New Straits
Times (9/6/2003) report, Dr Rais Yatim did opine that ‘...there is
no need to have a law to govern professional conduct of retiring judges
but a section could be included in the Judges Code of Ethics..’. He mentioned
that a committee has been set up to review the 1994 code of ethics. In the Malay
Mail report on the same day, he did mention that he hoped that this [Code of
Ethics] would hopefully be fully
drawn up by July (possibly July 2003). The Bar Council, in its 6/6/2003
statement said that it “ will be studying the detailed aspects of this issue,
with the view of formulating and forwarding a proposal to the Chief Justice and
the Government in the near future to introduce a new provision to regulate the
professional and commercial activities of retired judges.”. It is important
that all Malaysians should get involved in this process of reviewing and/or
amending this code of ethics for
judges and not just leave it to certain quarters..
In my humble opinion,
it is preferable that judges of the High Court, Court of Appeal and the Federal
Court should not be employed in law firms, and/or be appointed as directors in
companies, and/or be involved in any other profession and/or any other
activities which may
in any way raise adverse perceptions as to their independence whilst they
were in office. Even if they do chose to return to legal practice and/or get
involved in any other commercial establishments,
it is preferable that there be a
reasonable “cooling-off” period, of at least 2-3 years, if not more.
Noting that there is
going to be a review of the Judges Code of Ethics, which may be completed as
early as July 2003, civil society, NGOs, political parties and members of the
public must now put in their comments and suggestions., for if not the
opportunity to participate in this process that hopefully would reinforce the
Independence of the Malaysian Judiciary will just pass us by.
Even though judges
conduct after leaving office has been the recent concern. but other aspects
important for the ensuring of not only the fact but also the perception of the
Independence of the Judiciary should also deliberated on. Mr Karpal Singh,
in his plenary address given at 13th Commonwealth Law
Conference 2003, was also of the
view that “judges should not be bestowed any title by the Government during
their tenure of office or even after they retire to show transparency and to
give full import and expression to this adage that justice must not only be done
but seen to be expressly and manifestly done. Public perception should be given
full premium.”. Likewise, I wonder, whether or not leaders of the Malaysian
Bar should also not be bestowed and/or accept such titles for after all just
like the Independence of the Judiciary is important, so too is the Independence
of the Malaysian Bar.
Charles
Hector
16
June 2003