One reason why the present judicial crisis of confidence is more serious than the previous one which afflicted the country just a decade ago is that the judiciary is also facing for the first time in history a full-blown ethical crisis.
Such an ethical crisis in the judiciary should not have happened as in December 1994, the Judges’ Code of Ethics was gazetted setting judicial standards of conduct so as to secure public confidence in the dignity, integrity and independence of the judicial office.
Unfortunately, the person responsible for the formulation of the 1994 Judges’ Code of Ethics, Chief Justice Eusoff Chin, is also the same person who has plunged the judiciary into an ethical crisis of the first magnitude because of the swirling controversy that the highest judicial officer in the land had himself violated the Judges’ Code of Ethics and his refusal and inability to clear the cloud of judicial impropriety and misconduct arising from his New Zealand holiday with lawyer Datuk V.K. Lingam in December 1994.
A Conference of the Judiciary should be convened to adopt a "Restore Public Confidence" strategy, starting with the revision of the Judges’ Code of Ethics 1994 to resolve the ethical crisis of the judiciary or the Malaysian judiciary would be left behind in the international movement for greater judicial accountability, independence, impartiality and integrity.
There is a great urgency to convene such a Judiciary Conference as the Judiciary should be given the first opportunity to overhaul the Judges’ Code of Ethics, as it has many flaws.
Firstly, it has failed to provide concise yet comprehensive guidance to address the many difficult ethical issues that confront judges, or the Chief Justice himself would not be embroiled the embarrassing controversy of having violated the Judges’ Code of Ethics.
Another fatal flaw of the Code is the lack of complaints and satisfactory investigation mechanisms whereby the public can forward complaints of breaches of the Code by members of the judiciary.
Although the Judges’ Code of Ethics 1994 has been in force for five years, it has failed in its goal to assist judges with the difficult ethical and professional issues which confront them and to assist members of the public to better understand the judicial role.
The judiciary must show that it is capable of putting right these flaws in the Judges’ Code of Ethics in keeping with the Kuala Lumpur Commonwealth Law Ministers’ Meeting Communique 1996 on the vital role of an independent judiciary in a healthy parliamentary democracy.
In April 1996, Malaysia hosted the Commonwealth Law Ministers’ Meeting which took an important decision to promote the Independence of the Judiciary in the Commonwealth and set up a working group to make a comparative study of the independence of the judiciary among Commonwealth countries.
The terms of the Commonwealth Working Group on the Independence of the Judiciary were:
A. In identifying matters affecting the independence of the judiciary,
to look at:
B. In identifying matters which impact the status and quality
of the judiciary and the rule of law, to look at:
The Commonwealth Working Group on the Independence of the Judiciary, which was chaired by Australia and comprised of Canada, Ghana, Jamaica, Malaysia, Malta, Mauritius, Sri Lanka, Tonga and Zimbabwe, conducted a Judicial Independence Survey (JIS) among the Commonwealth countries.
The Minister in the Prime Minister’s Department, Datuk Rais Yatim, should make a Ministerial Statement in next week’s Parliament to report as to how Malaysia fared compared to other Commonwealth countries in the Judicial Independence Survey.