Laying down law with its arbiters

(NST) THE new Judges' Code of Ethics 2009 reveals the mystery that previously could not have been answered in the Judges' Ethics Committee Bill 2008: What actually happens if a judge breaches the code?

However, the question that still remains unanswered, both in the new code and the bill, is what are the procedures for someone who has a complaint against the chief justice?

The bill, which has been tabled for the second reading in Parliament and is set to be debated in the coming week, concerns a committee that will oversee issues of conduct and discipline of all judges of the Federal Court, Court of Appeal, and High Court (including judicial commissioners).

But other than the jurisdiction and membership of the committee, it doesn't detail the disciplinary procedures.

Its progress through the house has been hampered by the fact that the new code, which has to be included with the bill in the debate, had not been ready until just a few days ago.

Bar Council deputy-president Lim Chee Wee said he was surprised that Parts IV and V was contained in the code and not in the Judges Ethics Committee Bill, as "these two parts set out the procedure and sanction of the complaints mechanism of the Judges Ethics Committee".

Parts IV and V of the new ethics code details how a complaint is to be made, how it is to be investigated and what sanctions can be taken against an offending judge.

However, although the code and bill finally allow for action to be taken for less serious offences that do not amount to dismissal (for which a judge has to be brought before a tribunal), the system seems far from perfect at the moment.

The main issues of contention are: to whom should the complaint be sent; how should the enquiry be held; and whether the committee should look into serious offences. (see next page)

Former Court of Appeal judges Datuk Shaik Daud Ismail and Datuk V.C. George, as well as Lim, say that complaints should not be sent only to the chief justice (CJ), as this might be open to abuse, especially if the complaint is against the CJ himself.

While Lim suggested the British system of having a senior nominated judge to whom complaints were lodged and who determined the merit of the complaint, Shaik Daud said the complaint should be sent direct to the committee.

"This is to prepare against the future," he said.

"Right now we have a person (CJ) of integrity, but in future we do not know. It is better not to have to do the change in future when it happens, because then it may be too late."

George said the entire system should be revamped so that complaints would be lodged with the Judicial Appointments Commission (JAC), for it to sift through the merits of each case.

If it is only a minor breach of the code, then the JAC sends it along to the Ethics Committee, and if it is a serious breach, then it would refer the matter to the CJ to bring the judge before a tribunal.

"Since the JAC appointed the judge to begin with, they should be the ones to decide whether to dismiss him or not.

"Everyone seems to have forgotten the existence of the JAC. That should have been in the mind of everyone while drafting the Judges' Ethics Committee Bill and Judges' Ethics Code."

Once a complaint has been received, said George, there should be a preliminary enquiry, whereby whom ever it is who has to decide on the merits of the case can double-check on the complaint.

For instance, the complainant could be asked to clarify or elaborate on the complaint, or people can be called to make representations, to find out if there is a prima facie case against the judge.

"There must be a provision for this, because the very fact that a judge is called up before the committee is going to cause a lot of damage to the judge's reputation."

Shaik Daud said the judge should not be allowed to have legal representation during the enquiry, because this might then put the judge in a position where he would be indebted to the lawyer.

Where a judge is given the punishment of suspension, this should be without pay, he said.

"If you suspend him with pay, there's no meaning, because he doesn't have to work and you're paying him.

"There's no shame, because the enquiry is in camera and nobody will know."

Lim said it was important that the complaints mechanism be publicly accountable.