Parliament should legislate an Ethics Law to prevent conflicts of interest by public office-holders in post-employment situations to enhance public confidence in the integrity of the decision-making process in the public sector
by Lim Kit Siang
(Penang, Tuesday): The Star has today published an apology for its report headlined “Questions over ex-CJ’s new job” (5.6.2003), which referred to the appointment of Tun Mohamed Dzaiddin bin Hj Abdullah as consultant to a law firm, Skrine & Co., withdrawing and apologizing to Dzaiddin for the “unfounded” statements and allegations.
The Bar Council Chairman Kuthubul Zaman Bukhari said last Saturday after a special Bar Council meeting that there are currently no legislation or code of conduct that regulates the professional or commercial activities of judges after retirement.
He said the Bar Council will be studying the detailed aspects of this issue to propose to the chief justice and the government to introduce a new provision to regulate the professional and commercial activities of retired judges, to uphold not only the principle of the independence of the judiciary but also to prevent the appearance of the possibility that such independence could have been compromised.
He said the Bar Council felt that there should be a lapse of a suitable period of time, a “cooling off period”, after a judge’s retirement before he may be permitted to practise law at the Bar.
In its letter to The Star “Setting the record straight on ex-CJ” (7.6.03), Skrine said the Legal Profession (Practice and Etiquette) Rules 1978 allow retired judges to practice in law firms without any “cooling-off” period before a retired judge can join legal practice, and that convention shows that retired judges did and continue to join legal practice, quoting as examples Hepworth J, Gill CJ, Tun Salleh Abas LP, Tan Sri Eusoffe Abdoolcadeer SCJ, Dato’ Lim Beng Choon J, Razak J, Dato’ V.C. George JCA, Dato” M. Shakar JCA and Dato’ K.C. Vohrah JCA, among others.
The issue has highlighted grave public interest questions concerning not only the independence of the judiciary but the larger question of the integrity of public office holders and the government decision-making process which have generally been avoided in public discourse in the past 46 years of nationhood.
Apart from the issues as to whether there should be a bar or a “cooling-off period” before judges can practise law after retirement, there is the larger question to be addressed – the need for an Ethics Law to specifically prevent conflicts of interest by public office-holders in post-employment situations, including judges.
It seems to have become quite a common practice for heads of various government departments on retirement to straightaway join companies they had been dealing with just months before, raising grave conflict-of-interest issues. For instance is it right and proper for say the secretary-general of the Health Ministry who had negotiated the privatization of the pharmaceutical supply services to take up the employment with the successful bidder company immediately on retirement?
Parliament should legislate an Ethics Law to prevent conflicts of interest by public office-holders in post-employment situations to enhance public confidence in the integrity of the government decision-making process, which should take into account the following two principles:
1. Job-seeking: A public official or employee is prohibited from seeking a job from parties that:
2. Profiting from Public Contracts: A two-year time bar to prohibit a public official or employee from profiting from a public contract he authorized, or was authorized by a board of which he was a member.
There are many countries which Malaysia can emulate which have enforceable conflict-of-interest and post-employment codes for public office holders, including judges, to provide that public office holders shall not act, after they leave public office, in such a manner as to take improper advantage of their previous public office and to minimize the possibilities of allowing prospects of outside employment to create a real, potential or apparent conflict of interest for public office holders while in public office.
* Lim Kit Siang, DAP National Chairman