Monday, March 23, 2009

How do we judge Judges?

Undoubtedly Judges not only play a singular, important role in dispensing justice in the Courts, their decisions (and conduct) also has important effects on the image of the Nation, the economy and public confidence. As a philosopher once said "when justice fails, violence succeeds". Ultimately, if people fail to get justice in the courts, they will resort to it through other means. India is a classic example. I will write my views on this on another day, God willing. Now to share Bar Council's press release

Press Release

How do we judge Judges?

The Bar Council is heartened that the Government has introduced in Parliament a Bill to establish a Judges’ Ethics Committee. The Committee will be tasked with dealing with any judge who breaches any provision of the Judges’ Code of Ethics 2008. However, it is disquieting that the Judges’ Ethics Committee Bill 2008, which is intended to establish the Committee, is scheduled for a second reading in Parliament even though the Code itself has yet to be released.

It is imperative that the Code be tabled for consideration alongside the Bill in order to comprehend proposed revisions to the earlier Judges’ Code of Ethics 1994. It will also allow for a full and informed debate.

The Bill will enable the Committee to enforce the Code. However it is disadvantaged by some key shortcomings.

Firstly, no express procedure for lodging a complaint against a judge has been stipulated, save that the Chief Justice shall make referrals to the Committee for enquiry. It can only be inferred that grievances must therefore be conveyed to the nation’s top member of the judiciary. This may serve to deter potential complainants. It also unnecessarily concentrates the decision whether or not to charge a judge for breach of the Code in the hands of one person. There is no requirement that the Chief Justice be transparent and accountable in the exercise of this discretion.

Secondly, the Bill is silent on the Committee’s roles and functions, and the manner in which the Committee will conduct its proceedings. Guidelines on these, particularly details on the applicable procedural law during the fact-finding and enquiry stages, are essential to ensure clarity and consistency, and, above all, fairness and justice. No provisions have been made to establish sub-committees to oversee the phases relating to preliminary investigations, fact-finding and further findings of evidence. Provisions on who would make representations in the judicial misconduct enquiry are also lacking. Further, unlike the applicable UK regulation and Australian guidelines, the Bill does not provide for the Ethics Committee to inform the complainant of the progress and eventual outcome of the enquiry.

The Bill fails to specify a time limit within which a complaint must be lodged in order to be given consideration. In the UK, for example, the period for lodging a complaint lapses 12 months after the event or matter complained of. There are also no provisions as to the time frame to complete investigations and the hearing of the complaint. Judges against whom complaints have been lodged are also entitled to a quick resolution.

Finally, the Bill should oblige the Committee to produce an annual report that is submitted to Parliament and made available to the public. The report should include, inter alia, statistics and information regarding complaints reviewed during the year. The extent of information disclosed about the disciplinary proceedings or the taking of disciplinary action depends on the need to maintain public confidence in the judiciary, balanced against the protection of innocent judges.

The Code itself should provide a holistic and comprehensive definition of ethical conduct as well as judicial impropriety that, taking a page from the newly-revised Code of Conduct for United States Judges, should not be limited merely to judges’ adjudicative responsibilities. For example, the Commentary to the US Code specifies that a judge “should avoid lending the prestige of judicial office to advance the private interests of the judge or others”. It also stipulates that a judge should retain control over the advertising in connection with the publication of the judge’s writings, to “avoid exploitation of the judge’s office”.

The Bar Council urges the authorities to strengthen the Bill and to use this timely initiative as a step forward in restoring public confidence in the integrity and independence of the Judiciary. We stand ready to assist in this process, and would welcome the opportunity to provide our input into the Bill and the Code.

Lim Chee Wee


Malaysian Bar

20 March 2009

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