Call for a nation-wide debate and  thorough review as to why the five-and-a-half-year Judges’ Code of Ethics has failed to enhance public confidence in an independent, fair and competent judiciary

Media Statement
by Lim Kit Siang

(Petaling Jaya, Tuesday): On 18th December 1994, four days before  he flew off with his family for the controversial New Zealand Christmas holidays, Chief Justice to the Federal Court, Tun Eusoff Chin announced that the Code of Ethics "to regulate the conduct and performance of judges and to specify disciplinary action against them" was being gazetted.

He told Bernama in an interview: "The code is for their own good, to protect and remind them of their duties."

The Judges’ Code of Ethics 1994, which  was gazetted while Eusoff was holidaying in New Zealand, was meant to establish standards for ethical conduct of judges so as to enhance public confidence that Malaysia has an independent, fair and competent judiciary to deliver justice to all Malaysians.

There should be a nation-wide debate and thorough review  in Parliament, the media and the society at large as to why the five-and-a-half-year Judges Code of Ethics has failed to enhance public confidence in the independence, fairness and competence of the system of justice in Malaysia.

For a start, in keeping with the principle of public accountability, Eusoff should make public a report as to how the Code of Ethics had worked in the past five-and-a-half years, how many complaints had been  received each year under the Code of Ethics, the number of judges who had been investigated and the outcome of such investigations.

There are clearly two major defects in the Judges’ Code of Ethics 1994, firstly, there is no satisfactory and accountable  mechanism for public complaints for breaches of the Judges’ Code of Ethics and secondly, the Code of Ethics had not been satisfactorily formulated so as to deal in a more comprehensive manner with all instances of  judicial improprieties and misconduct.

The controversy over the failure of Eusoff to clear the cloud of judicial impropriety and misconduct arising from his New Zealand holiday with lawyer Datuk V.K. Lingam in December 1994 is a good case in point.

Although Eusoff had said that he had "coincidentally bumped" into Lingam in New Zealand, Malaysiakini and Asian Wall Street Journal had reported that Eusoff and Lingam flew together with their families for their Christmas holiday in Auckland and Christchurch  from Singapore to New Zealand and back to Kuala Lumpur.

As Eusoff’s silence in the face of such contradictory reports is not conducive to the restoration of public confidence in the  accountability, independence, impartiality and integrity of the Malaysian judiciary, how can the Judges’ Code of Ethics be invoked to deal with Eusoff’s case?

There is next the case of the  outstanding MGG Pillai judgment. The Federal Court headed by Eusoff reserved judgment on January 13, 1998  in the appeals by freelance journalist M.G.G.Pillai and two others who were ordered to pay RM7 million to Tan Sri Vincent Tan for libel.

The failure of the Federal Court headed by Eusoff to deliver judgment after more than two-and-a-half years and even by  the last day of his tenure as Chief Justice before a six-month  extension clearly falls under two injunctions  in the Judges’ Code of Ethics that a judge shall not "lack efficiency or industry" and shall not  "inordinately and without reasonable explanation delay in the disposal of cases, and delivery of decisions and the writing of grounds of judgment".

Again, how can such breaches against the Judges’ Code of Ethics be invoked against the Chief Justice himself?

The Judges’ Code of Ethics should be amended to specifically provide that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities" as is to be found in the Canons of Judicial Conduct of other judicial systems.

An independent and honourable judiciary is indispensable to justice in our society and public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.  A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

For this reason, the Code of Ethics should provide a specific prohibition against a judge behaving with impropriety or the appearance of impropriety, which apply to both the professional and personal conduct of a judge.

Actual improprieties would include violations of law, court rules or specific provisions of the Judges’ Code of Ethics.  The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity and impartiality is impaired.


*Lim Kit Siang - DAP National Chairman