A VIDEO showing top legal office holders, including apex court judges, dancing with lawyers in the Legal Year Gala Dinner at Kota Kinabalu had gone viral and attracted criticism, including that it is in breach of Judges’ Code of Ethics, which among others requires judges to avoid close association with lawyers who appear before them.

This was a code made under amended Article 125 of the federal constitution and enforceable through a mechanism provided in the Judges’ Ethics Committee Act. The code is statutory in nature by virtue of being made under the federal constitution and entrenched by the Act. Views and arguments as to if there was indeed a breach of the code are divided as it will be in any controversial subject.

Leaving aside that issue, paragraph 8(5) of the code requires a judge to obtain approval of the CJ to write, lecture, teach and participate in activities concerning the law, the judicial system and the administration of justice. It also similarly restricts the freedom of judges to appear before any official body concerned with matters relating to the law, the judicial system and administration of justice.

It further restricts the freedom to serve as members of official bodies devoted to improving the law, judicial system and administration of justice. Similarly, restriction is also imposed against writing or speaking publicly on non-legal subjects and engaging in historical, education, cultural, religious, sporting or social and recreational activities. Lastly, restriction on participation in civil and charitable activities.

Added to the above is paragraph 11, that requires a judge to comply with any administrative order or direction issued by the chief justice, the president of the Court of Appeal and the chief judges of the high courts.

The code more or less has created a scenario like employer-employee relationship or, in some aspect, teacher-student relationship. The code, by its very nature, is a tool of control of judges by top judges. It has facilitated a culture of the judges being subservient to the top judges and being compliant rather than independent. The code is oxymoron. On the one hand, it expects independence from the judges, on the other hand, subservience impugning the independence.

The result is contrary to the very basis of judicial office wherein judges must act independently, subject only to tribunalisation in the event of a deserving misconduct. Tribunalisation is provided under Article 125 of the federal constitution, whereby the prime minister or the chief judge after consulting the prime minister advises the Yang di-Pertuan Agong to appoint a tribunal to inquire to an alleged misconduct, and upon recommendation of the tribunal the Agong may remove the judge from office. In fact the code itself, at least in some aspects, is unconstitutional for infringing freedom of speech guaranteed in Article 10 of the federal constitution.

The subservience has yielded its results. Recently a lawyer said to the press, coupled with his statement to the police, that he was aware of interference in Karpal’s sedition case at the Court of Appeal, whereby what would have been an acquittal by majority turned into a conviction by majority. Such an interference to convert an acquittal into a conviction would be a serious “constitutional crime”.

Similarly, a senior Court of Appeal judge recently said in his speech at an international law conference that he was severely reprimanded by a top judge for delivering a dissenting judgment in a landmark conversion case. Such an action by a top judge, though not a constitutional crime, would be serious “judicial misconduct”. Remarkably, the senior Court of Appeal judge, who was top qualified and had delivered, was subsequently bypassed in elevation to the Federal Court in a most glaring manner.

The alleged interference or misconduct had led the Bar Council to twice ask for a RCI, followed by Sangeet Kaur, daughter of the late Karpal, suing the chief justice in respect of the them. Yet no RCI is seen, which the judiciary should welcome as an opportunity for it to clear any negative perception of it.

There does not seem to be such a “statutory” code in most of the civilised countries like the UK or India, but there is an internal code of ethics as guideline in those countries, such as UK’s 2018 Guide to Judicial Conduct and Principles of Judicial Conduct 2002.

To reinstate independence in judiciary and to eradicate any perception to the contrary, the code together with the Act should be repealed. An internal code of ethics should be made as a guidance to judges. If any judge is non-performing and commits a serious misconduct, then he should be tribunalised under Article 125. However, as a safeguard against any abuse or perceived abuse, such tribunalisation should only be allowed if the Bar Council, by majority resolution, approves the same.

Similarly, any appointment or elevation of judges must be made only after consultation with the Bar Council as the top stakeholder. One needs only bare common sense to say that nobody other than the Bar Council, whose members daily appear before the judiciary, can be a better consultant in judicial appointments and elevations. Without such consultation in appointments and elevations, it becomes questionable how integrity and competency in judiciary can be sustained.

The recent elevations to the Federal Court bypassing a top qualified senior judge of the Court of Appeal suffered a lot of negative perception. This would not have happened in the Bar Council was consulted. Any appointment without such consultation, by itself, would render the appointment vulnerable at least perceptively.

The Malaysian Bar should now, in the new Malaysia, stand up firm to call that JAC put an end to the old culture and consult the Bar Council before making any appointment or elevation. Anything short of this will be an embarrassment. – January 22, 2019.

* Arun Kasi is a lawyer and reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.