AUGUST 25 — The basic ethical standards that a judge has to comply with are codified in the Judges’ Code of Ethics 2009. These codes are enacted under the authority given in art. 125 of the Federal Constitution and complemented by Judges’ Ethics Committee Act 2009.
The basic standards stated in the Code include the duty of a judge to uphold the integrity and independence of the judiciary, avoid impropriety in judicial activities, performing judicial duties fairly and efficiently, minimising risk of conflict arising from extra-judicial activities.
If a judge breaches the said Code, the procedure for complaint against a judge is as follows:
1) Complainant (who can be anyone include a judge) will lodge his complaint with Chief Justice (CJ)
2) CJ will do one of the three things below:
a) dismiss it after consultation with President of Court of Appeal (PCA) / Chief Judge of Malaya (CJM) / Chief Judge of Sabah and Sarawak (CJSS);
b) refer to Judges’ Ethics Committee appointed by the CJ, which committee may upon due enquiry dismiss the complaint, issue a warning or suspend the judge for a period not exceeding 1 year.
c) make a representation, after consultation with the PM, to the YDPA to appoint a tribunal to investigate, which will advise the PM. If the tribunal recommends removal of the judge, then the YDPA MAY do so.
Under the above procedure, the initial and crucial control is with the topmost judges, namely the CJ, PCA, CJM and CJSS. Apart from that the initial control also is with the PM in cases of matters to be referred to YDPA for representation to tribunal.
However, recent events have rendered it questionable if the above procedure is sufficient to ensure judicial independence and integrity. The recent events are interference revealed by Justice Hamid Sultan in India Ghandi case and those said by lawyer Mohamed Haniff Khatri in relation to Karpal’s sedition trial. If a complaint is to be made against a topmost judge or topmost interference from the government, the above procedure may not work.
The interesting point to observe is that the said Code, Act and Constitution do not in effect envisage or provide for a complaint being made against the topmost judges or where there was topmost interference from government. The recent events have made it necessary for provisions to be made to deal with grievances against such topmost positions.
Hence, a pressing need has arisen to amend the Constitution, the Judges’ Code of Ethics 2009 and the Judges’ Ethics Committee Act 2009 to provide for a mechanism to effectively deal with a complaint against the topmost position. The relevant stakeholders should take this seriously and with urgency to consider the necessary amendments.
*Arun Kasi is an advocate and solicitor.
**This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
