MALAYSIA first prescribed a Judges’ Code of Ethics in 1994, and then replaced it in 2009 with a more extensive code which established a procedure for complaints and investigation.

The substantive rules on appropriate judicial conduct are found in Part III of the 2009 Code. 

Section 5 provides an overarching statement about integrity and independence. It states:
A judge shall exercise his/her judicial function independently on the basis of his/her assessment of the facts and in accordance with his/her understanding of the law, free from extraneous influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason.

The rules of ethics in this 2009 Code can be broadly divided into three categories:
1. The avoidance of impropriety or its appearance. 
Section 6 sets out how a judge should avoid impropriety or the appearance of impropriety by not allowing any relationship to influence his/her judicial conduct or judgment. He/She is also enjoined not to lend the prestige of his/her judicial office to advance his/her or others’ private interest, or to convey or permit others to convey the impression that persons are in a position to influence him/her.

2. Appropriate behaviour in extra-judicial settings
Section 7(1) states, inter alia, that the judicial duties of a judge shall take precedence over all his other activities. This is supplemented by section 8 addressing appropriate extra-judicial conduct and activities, which includes avoiding close association with individual members of the legal profession or involvement in political activities. Furthermore, section 9 requires judges to declare in writing all their assets to the Chief Justice of the Federal Court where required.

3. The efficient administration of justice
Section 7(7) states that a judge shall ‘endeavour to diligently and efficiently hear and complete the cases in his court and promptly write his judgments’.

Paragraph 10 of the 2009 code, cessation of any connection with the firm, further states that:
1)    A judge shall, on his appointment, cease to have any connection with the firm where he was practising as an advocate and solicitor prior to his appointment.
2)    For the purpose of subparagraph (1), the judge shall:
1.    immediately relinquish all interest in the firm;
2.    ensure that he has no dealing with the firm or any member of the firm; and 
3.    ensure that his name is removed from the firm’s name.

The traditional approach of using a “cooling off period,” often established by tradition at 2, 3 or 5 years subject to the guidelines above are sometimes used.

In the issue being widely discussed currently, the presiding Judge who heard the SRC case was previously employed as the company secretary and group general counsel for Maybank in 2012 when the bank lent RM4.17 billion to 1MDB to help finance the company’s acquisition of an independent power producer. 

SRC was formed in January 2011 and for undisclosed reasons came under 1MDB’s ownership in August 2011. Again for undisclosed reasons, approximately 7 months later, in February 2012, the Finance Ministry-owned Ministry of Finance (MOF Inc.) Incorporated took over as owner of SRC. Effectively, 1MDB owned SRC for 7 months. 

According to documents available publicly, the loan from Maybank to 1MDB was discussed in 2 separate meetings of the bank on 7 March 2012 and 12 March 2012. On both the dates when the bank was deliberating on the loan from 1MDB, the legal relationship between 1MDB and SRC had already ceased to exist with each entity having their own respective management, board, governance and legal obligations.

Thus, in the SRC case, which was for abuse of power involving Retirement Fund’s (KWAP) RM4 billion loans to SRC, three counts of criminal breach of trust involving RM42 million and three counts of money laundering. Disqualification, in this instance does not appear appropriate given the possibility of conflict.

Often, litigants are quick to perceive bias quite unjustifiably when a decision is not in their favour when no reasonable, fair minded and informed person would not feel entitled to special treatment.

In judicial matters, the test for conflict of interest must include both actual conflicts between the judge’s self interest and the duty of impartial adjudication and circumstances in which a reasonable fair minded and informed person would prevent conflict. 

If direct interest cannot be found on the part of the Judge, then it will resort to the tests fashioned through judicial decisions, ‘the real danger of bias’ test, ‘the reasonable suspicion’ test and ‘the real likelihood of bias’ test, which arguably, is a difficult test as mere suspicion is not enough to recuse a Judge from presiding over a matter. 

Thus, mounting an application to recuse a Judge is often frowned upon and the imputation of unfairness and lack of impartiality to a judge in the discharge of his judicial duties is contemptuous.

Consequently, the trial loses its significance as the main forum for (adversarial) evidence examination, but it increasingly serves to confirm the results of pre-trial investigations. Were the lawyers aware of the career background of the presiding judge but did or said nothing at the investigative stage? – March 17, 2022.

* FLK 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.