JANUARY 21 — A video has been circulating lately — featuring the Chief Justice dancing with lawyers, the Attorney General and the Minister in the Prime Minister’s Department — at the gala dinner for the Opening of Legal Year in Sabah and Sarawak 2019. There has been much public debate.
But the recent statement by Dr Asyraf Wajdi Dusuki (Umno Youth Chief) on alleged breach of our Judges’ Code of Ethics 2009, warrants a response.
First, he highlighted Section 8(2) of the Malaysian Judges’ Code of Ethics 2009, which reads: “A judge shall avoid close association with individual members of the legal profession, particularly those who practise in the judge’s court, where such association might give rise to a reasonable suspicion or appearance of favouritism.”
This provision is specific. Two elements must be satisfied i.e. (a) close association; and (b) with individual lawyers (with particular emphasis on those who “practice in the judge’s court”). Section 8(2) does not bar a judge from loosely associating with a group of lawyers.
This is consistent with international standards whereby the parameters of prohibition are generally focused on direct association with individual lawyers currently engaged in pending cases (see: Para 120-122 of the United Nations’ Commentary on the Bangalore Principles of Judicial Conduct 2002; Page 12 of the UK’s 2018 Guide to Judicial Conduct, and Para 6.11.1 of the Australasian Institute of Judicial Administration Incorporated’s Guide to Judicial Conduct). For example, Section 8(2) encompasses scenarios such as when Chief Justice Eusoffe Chin had a private family vacation with lawyer V.K. Lingam in New Zealand in 1994.
Let us then consider the following facts surrounding the dance at the gala dinner:
(1) The learned judge was not dancing with one or a select few individual lawyers — all members of the Malaysian Bar, Sabah Law Society, Advocates Association of Sarawak, the Attorney General’s Chambers and judicial officers were also present and participated freely.
(2) The learned judge did not appear to closely associate himself to, or had danced exclusively with any particular lawyer.
Thus, my respectful view is that there is no breach of Section 8(2).
Second, Dr Asyraf pointed out Section 6(2)(c) of the Malaysian Judges’ Code of Ethics 2009: “A judge shall not convey or permit others to convey the impression to any person that they are in a special position to influence him”.
Similarly, the learned judge was not dancing singularly with any particular lawyer. Every lawyer present that night could have participated on the same stage with the learned judge. There is no element of exclusivity or “special position to influence” to begin with. How is Section 6(2)(c), on the face of it, relevant then?
Third, Dr Asyraf mentioned Section 8(1)(a) of the Malaysian Judges’ Code of Ethics 2009: “A judge shall ensure that his extra-judicial activities do not cast reasonable doubt on his capacity to act impartially as a judge”.
This provision is wider in nature, and admittedly open to interpretation. I am also very much cognisant of the adage that “justice must not only be done, but must be seen to be done”. That is why perhaps, in the draftsmen’s wisdom, there is a caveat in Section 8(1)(a): Such extra-judicial activities must not merely cast doubt — but reasonable doubt — on the judge’s capacity to act impartially. Reasonable doubt must not be cursory, superficial or based on conjecture.
For the same reasons above, I believe that ordinary Malaysians by-and-large would not have reasonable doubt towards the learned judge’s capacity to act impartially in court after participating in the gala dinner.
I also wish to highlight a few pertinent points on judicial ethics which have been under-appreciated in the public domain thus far.
One, although preservation of the independence of the office is paramount, judges are also humans who like other citizens are entitled to freedom of expression, belief, association and assembly in accordance with the United Nations Declaration of Human Rights 1948. (see Para 8 of the United Nations Basic Principles on the Independence of the Judiciary).
Two, social contact between members of the judiciary and members of the legal profession is a long-standing tradition which is not exclusive to Anglo-Saxon countries, but applies across most nations.
In fact, informal exchanges with lawyers are beneficial as they help to reduce tensions between the judiciary and advocates. (see Para 119 of the United Nations’ Commentary on the Bangalore Principles of Judicial Conduct 2002).
Three, to the extent consistent with the judge’s special role, judges are encouraged to remain in close contact with the community. This is so judges are in tuned with the public interest and experience, which improves judicial fact-finding. (see Para 31 of the United Nations’ Commentary on the Bangalore Principles of Judicial Conduct 2002).
Four, to the extent that it cannot be interpreted too broadly, the standards applicable to a judge’s private life cannot be laid down too strictly and must take into account cultural diversity. (See Para 105 of the United Nations’ Commentary on the Bangalore Principles of Judicial Conduct 2002) Some West Malaysians are often too entrapped in our own racial-religious silos, and forget of the unique cultural paradigm of our brothers and sisters in East Malaysia.
Therefore, it is only appropriate that any conduct must be viewed in the context of Borneo’s rich culture of openness, camaraderie and warmest of hospitality to guests.
I end with a quote from one of the great US judges, Oliver Wendell Holmes Jr.: “…As life is action and passion, it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived.”
* Lim Wei Jiet is an advocate & solicitor of the High Court of Malaya.
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
