We wrote about matters related to the functioning of the Malaysian judiciary and the way allegations made about judicial misconduct were being treated by the authorities before the Judges’ Ethics Committee (JEC) met and decided to suspend Justice Hamid Sultan Abu Backer on 4 February.
We are disappointed that the JEC had decided to implement the most severe penalty allowed under the Judges’ Ethics Committee 2010, Act 703 (the Act).
Considering the importance of the matters raised by Hamid and the way matters have proceeded to his suspension, we, as responsible members of civil society, feel it important to raise some of our views on the allegations and the enquiry that was held.
First, taking into account what is provided by the law through legislation on this matter, there appears to be no basis for convening the JEC. The role of the JEC and its jurisdiction are stated in the Act and the Judges’ Code of Ethics 2009 (the Code) under the Federal Constitution.
Having read the facts surrounding Hamid’s affidavit, we feel neither the Act nor the Code, whether read separately or together, justify the setting up of the committee or the right to summon Hamid before it.
Second, as far as the Act is concerned, it was passed to establish a JEC and to provide for its functions and powers. Section 7 of the Act stipulates that the committee shall abide by the principles and procedures of the Act and the Code.
Section 9(1) states that the proceedings of the JEC shall not be a trial, but an enquiry as regards a breach of the Code committed by a judge referred to it by the chief justice.
Third, the jurisdiction of the JEC is limited to hearing any breach of the Code as established under the Federal Constitution. There is nothing in the Code of Conduct, published in Part III of the Code that would seem to entitle the establishment of the committee in respect of those matters connected with Hamid.
Indeed, we contend that Hamid’s conduct falls within the first of the principles of the Code which concerns “upholding the integrity and independence of the judiciary”: A judge shall exercise his judicial function independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason. Clause 5, Code of Ethics 2009
It appears contradictory that the chief justice summoned a judge for sounding or warning for interference with the integrity of the judiciary rather than support what in everybody’s mind ought to have been the right course of action – the establishment of an independent commission of inquiry.
In our estimation, unless such an independent commission is urgently convened, the judiciary may not be able to command the respect and trust of the Malaysian public.
Jointly written by:
Prof Zaharom Nain, Gerak chair
UK Menon, barrister
Retired Lt Col Ahmad Ghazali Abu-Hassan
Prof Dr Teh Yik Koon
Dr Wan Abdul Manan Wan Muda
Lee Yin Su