Last Wednesday, when the Court of Appeal dismissed the appeal by the Bar Council against a High Court injunction on the holding of an extraordinary general meeting, Justice Ahmad Fairuz Sheikh Abdul Halim said members of the public or any individual organisations are not allowed to discuss the conduct of the judiciary openly as it would be unconstitutional.
He said that any discussion into the conduct or any allegations of impropriety of judges must only be done in accordance with Articles 125 and 127 of the federal constitution.
Article 125 provides the procedure for the establishment of a judicial tribunal for the removal of a judge if the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the Yang di Pertuan Agong that a judge ought to be removed on the ground of misbehaviour or of inability, from infirmity of body or mind or any other cause. Article 127 provides restriction on parliamentary discussion of conduct of a judge except on a substantive motion which has the support of not less than one quarter of the total number of members of Parliament.
What Justice Ahmad Fairuz said last Wednesday is clearly at odds with what Eusoff said when he announced the Judges’ Code of Ethics in December 1994 that it is the right of everyone whether in Parliament or in the media to criticise the judiciary provided it is fair comment.
Eusoff should declare whether he has changed his mind since December 1994 and has now come to the view that it is no more the right of everyone, whether in Parliament or the media, to criticise the judiciary, even if it is fair comment - and that apart from a judicial tribunal or a substantive motion in Parliament, judges enjoy absolute immunity from criticism of any kind!
If Eusoff has not changed his stand on judicial accountability and that it is the right of everyone to criticise the judiciary, provided it is fair comment, he should state whether he regards it as legitimate criticism for the demand that he clear the cloud of judicial impropriety and misconduct arising from his New Zealand holiday with lawyer Datuk V.K. Lingam in December 1994 so that the Chief Justice is not embroiled in a controversy as to whether he had himself violated the Judges’ Code of Ethics.
Eusoff should also state whether he agrees that it is legitimate and fair comment that the Judges’ Codes of Ethics at present is ineffective and unsatisfactory and that Malaysia should take a leaf from the experiences in other countries to uphold judicial accountability by introducing legislation to set up a Judicial Council to consider complaints that judges have violated the Judges’ Code of Ethics 1994.