Thursday, October 22, 2009

Judges Ethic Bill

Speech by M.Kula Segaran MP Ipoh Barat while debating the Judges Ethic Committee on 22ndOctober 09

The Judges Ethic Bill was introduced for first reading on 15thDecember08. So it has taken the government over 10 months for this bill to see its second reading. Why the delay?

Unsuccessful Abdullah's legacy

This Bill was then touted by the then Abdullah's administration as some of the promised changes by the former Prime Minister's administration. Unfortunately the former PM who acceded as PM on 31stOctober03 was not able to have this bill passed by the time he resigned on 3rdApril09. The reason for this long delay could only be attributed to lack of true commitment. If it was not because of the strong message of change sent by the people through their votes in last year's general election, this Bill will most likely not see the light of day.

Inadequacy of the Bill

Was there consultation with stake holders in relation to this bill like Judges? Why the reluctance to consult with stakeholders? The government and its machinery should have been fully used to reach all players to get their opinions before this Bill was drafted. Judges, lawyers and the ordinary people should have been consulted when this bill was formulated. In a sense we can conclude, that just because the government has a majority in Parliament it can by pass public inputs and opinions.

One pre condition of this Bill is the existence of the Code of Ethics.

In this Bill section 7 mentions that the principles and procedure as set out in the Code of Ethics. The question is where is the code of Ethics of 2008? We have the code of Ethics of 2000 but not the 2008 so how will this act operate?

Further the Bill seems to be silent on the procedures as to how to lodge a complain against a judge

  1. 1(b) Further the Bill specifies that a breach of ethics is as mentioned in the Code of Ethics. This limits the scope and power of a complaint. Like for example as when a Judge makes a highly inappropriate comment. Some years ago a senior lawyer complained to Chief Justice Tun Ahmad Fairuz against a High Court Judge who made highly inappropriate comments( with sexual references) in his chambers to a few pupils and international students. When the former CJ requested for a statutory declaration of the event, a very courageous young lady unhesitatingly did so. Unfortunately, no public disciplinary action has been taken against the Judge.

  1. One glaring absence in this Bill is the requirement for the publication of an annual report listing the number of complaints lodged. Without an annual report, there will not be any accountability. The public are still wondering what has happened to the criminal investigation 1

and the royal commissions findings on the 'Lingam-gate' incident. Without the above annual report we will be unable to ascertain how many complaints have been lodged, how many have been disposed off and whether action has been taken.

  1. 2(b) unlike other jurisdictions there is no disciplinary sanction; Under Article 125 of the Federal Constitution , the only sanction provided for against misbehavior of a judge is removal.. The Bill does not address this either what are the disciplinary sanctions. The Bill should provide punishment/sanction when a breach has been committed. The failure to prepare an annual report can mean matters of Judges discipline is done in secret. This is what happens in a private club. But Judges are public officers and disciplinary action should be made public as it happens say in the Bar council.

The failure to prepare and submit a annual report denies a chance for Parliament to scrutinize and provide check and balance on the report.

  1. In any disciplinary action the decision on a complaint will be conveyed to all affected parties. But this seems to be absent. It is hoped that notwithstanding the absence of this requirement the committee will duly inform all of its decision.
  2. One other glaring absence in the Bill is a provision for a time limit to lodge a complaint and a time limit for the Committee to hear the case. The worry is the Committee can drag a complaint for years.
  3. On June 10,2008 Justice Ian Chin revealed that he and selected judges were sent to a “boot camp” He stated that there were 'veiled threat' from the former Prime Minister Tun Mahathir after he handed 2 Judgments in 1997- the M.G.G Pillai case. A month later, Justice Ian Chin said he and select Judges and Judicial officers were packed to a boot camp from May 26-30 1997 where there was an attempt to indoctrinate them with the views “ that the government interest was more important than all else”

This goes to show very clearly that PM and politicians would like to force their views on Judges so that judges toe the line of the interest of the Government. Failing which Judges are threatened.

May be the present PM is more slick as I doubt he has threatened to send any Judges to a boot camp. But unknown to the Malaysian public all High Court Judges have secretly got an increase of salary of RM6000 a month. Some say this is another way of buying or influencing Judges

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