TARIKH AKHIR TEMPOH PERKHIDMATAN HAKIM MESTI PASTI - TARIKH BERSARA - 66 TAHUN. Jika tempoh ini boleh dilanjutkan untuk hakim terpilih, tetapi bukan semua hakim, habis sudah persepsi 'kebebasan kehakiman'....Adakah lanjutan diberikan kerana hakim ini tidak akan membuat keputusan bercanggah dengan pendirian Perdana Menteri, atau orang lain yang ada kuasa melanjutkan tempoh perkhidmatan hakim? Jika Ketua Hakim menerima perlanjutan tempuh perkhidmatan selama 3 tahun lagi selepas tamat tempuh perkhidmatan pada 3 Ogos 2017...ia akan menjejaskan persepsi 'kebebasan hakim' di Malaysia...
Badan kehakiman dan hakim yang bebas, yang boleh mendengar dan membuat keputusan tanpa dipengaruhi oleh Perdana Menteri, Ketua Hakim atau hakim lain, atau mana-mana pihak lain adalah amat perlu...
Badan kehakiman adalah 'check and balance' perlu kepada 2 cabang kerajaan yang lain, iaitu Badan Perundangan(Parlimen) dan Badan Eksekutif(Perdana Menteri, Kabinet dan kerajaan).
Rakyat berhak memulakan tindakan guaman terhadap Perdana Menteri, Menteri dan kerajaan Malaysia, dan yang akan memutuskan siapa menang atau kalah adalah hakim dan Mahkamah. Jika hakim dan badan kehakiman tidak bebas, iaitu terpaksa ikut 'arahan' atau posisi Perdana Menteri, Menteri atau badan kerajaan, bagaimana keadilan boleh dicapai? Hakim dan Mahkamah tidak akan mendapat kepercayaan rakyat atau pihak lain sebagai tempat dimana mereka akan mendapatkan keadilan.
Kebebasan kehakiman adalah amat penting, dan oleh kerana itu ada beberapa perkara perlu untuk memastikan 'kebebasan ini'.
'Security of tenure'(ketetapan tempoh perkhidmatan) adalah satu daripada cara yang terpenting memastikan kebebasan ini... Hakim, setelah dilantik menjadi hakim, tidak perlu lagi risau bahawa mereka kena ditamatkan perkhidmatan jika membuat keputusan Mahkamah menentang kerajaan (PM, Menteri, Polis dan mana-mana badan/institusi kerajaan). Hakim akan terus menjadi hakim sampai umur persaraan, yang ditetapkan Perlembagaan Persekutuan, iaitu sampai mencapai umur 66 tahun. Tempuh perkhidmatan boleh diakhiri jika hakim perseorangan sendiri letak jawatan, tetapi memang sukar sekali untuk 'buang kerja' mana-mana hakim di Malaysia.
'Security of tenure'(ketetapan tempoh perkhidmatan) akan menjadi lemah dan/atau tidak berkesan sekiranya tempoh perkhidmatan hakim boleh dilanjutkan melampaui umur persaraan oleh mana-mana pihak, sama ada Yang Di Pertuan Agung, Perdana Menteri, Ketua Hakim atau mana-mana pihak lain...Jika ada kemungkinan sebegini untuk melanjutkan tempuh perkhidmatan hakim, adakah hakim tersebut mungkin membuat keputusan dan penghakiman di Mahkamah secara bebas - atau adakah beliau akan membuat keputusan dan penghakiman berpihak kepada(atau saperti yang dihasratkan) pihak yang ada kuasa(atau pengaruh) melanjutkan tempoh perkhidmatan hakim berkenaan?
Perlanjutan tempuh perkhidmatan hakim yang diterima oleh beberapa hakim tetapi bukan semua juga melemahkan 'security of tenure'. Justeru, peruntukkan yang membenarkan lanjutan 6 bulan untuk hakim yang bersara juga adalah tidak wajar - dan harus dikeluarkan. Tarikh akhir tempoh perkhidmatan mesti pasti, dan terpakai untuk semua hakim - dan tarikh ini haruslah tarikh persaraan bila mencapai umur 66 tahun.
Dalam isu keadilan, apa yang perlu dijaga bukan sahaja hakikat, tetapi juga persepsi umum. "Justice must not only be done but also seen to be done". Seseorang hakim mungkin akan terus bertindak bebas, dan mengeluarkan penghakiman adil sapertimana diperlu bebas daripada pengaruh luar. Tetapi, jika ada yang boleh melanjutkan tempuh perkhidmatan kamu, tidakkah anda akan cuba melakukan kerja, yang tidak akan mengugat perhubungan anda dengan mereka yang ada kuasa melanjutkan tempuh anda?
Malaysia kini di ambang satu 'Krisis Badan Kehakiman'(Judicial Krisis). Ketua Hakim Negara akan habis tempuh perkhidmatan pada 3 Ogos 2017, tetapi menurut satu kenyataan media Pejabat Perdana Menteri, tempuh perkhidmatan beliau akan dilanjutkan selama 3 tahun selepas itu. Tempuh Presiden Mahkamah Rayuan, yang akan akhir pada 27 September 2017, akan dilanjutkan selepas itu untuk tempuh 2 tahun.
Isu ini bertambah serius kerana ini bukan isu hakim biasa, tetapi 2 orang hakim yang merupakan ketua Badan Kehakiman di Malaysia.
Apakah yang akan dilakukan oleh YAA
Tan Sri Dato’ Seri Md Raus bin Sharif(Chief Justice of the Federal
Court) dan YAA Tan Sri Dato Zulkefli bin Ahmad Makinudin(President of the
Court of Appeal)? Sehingga kini, kedua-dua hakim tersebut nampaknya tidak lagi menyatakan apa-apa. Harapan saya adalah, kedua hakim tersebut akan menolak perlantikan dan perlanjutan tempuh berkenaan, demi mempertahankan kebebasan badan kehakiman - demi Malaysia.
PERLANTIKAN YANG DIPERTUAN AGUNG?
Ramai yang masih tidak sedar bahawa Yang DiPertuan Agung sebenarnya tidak lagi ada kuasa bertindak secara sendiri berasaskan budibicara sendiri. Yang DiPertuan Agung HARUS ikut nasihat orang perseorangan (biasa Perdana Menteri). In jelas sekali jika dilihat Artikel 40 dalam Perlembagaan negara ...
Article 40(1A)
“In the exercise of his functions under this Constitution or federal law,
where the Yang di-Pertuan Agong is to act in accordance with advice, on
advice, or after considering advice, the
Yang di- Pertuan Agong shall
accept and act in accordance with such advice.’
Di dalam isu perlantikan Hakim, kuasa memberi 'nasihat' di tangan Perdana Menteri
Article 122B(1)
‘The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
'after consulting...' bererti bahawa PM kena 'consult' tetapi tidak perlu ikut apa yang dikatakan pihak yang dia perlu 'consult'
Justeru, Perdana Menteri ada kuasa dalam isu perlantikan hakim - termasuk perlantikkan Ketua Hakim, dsb..
Yang DiPertuan Agung hanya ada kuasa bertindak sendiri, tanpa perlu menurut nasihat Perdana Menteri atau orang lain hanya dalam beberapa keadaan sahaja - 4 yang dinyatakan secara khusus, dan keadaan lain yang dinyatakan dalam Perlembagaan - dipercayai mesti jelas menyatakan sedemikian. Dalam isu perlantikan Perdana Menteri pun, ada syarat yang menyatakan calun tersebut mesti mempunyai majoriti ahli dewan rakyat...justeru, kuasa lantikan Perdana Menteri pun sesuka hati...
Article 40(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c)
the requisition of a meeting of the Conference of Rulers concerned
solely with the privileges, position, honours and dignities of Their
Royal Highnesses, and any action at such a meeting,
and in any other case mentioned in this Constitution.
Sedih kita hilang seorang Hakim yang baik yang masih mampu menjalankan tugas...tetapi mesti bersara bila sampai tarikh persaraan 66 tahun. Jika Perlembagaan sudah dipinda dan tarikh persaraan di naik kepada 70 tahun atau 80 tahun ...itu boleh.Pada masa ini, hakim mesti bersara bila capai 66 tahun...
Saya berpendapat, bahawa tempuh 6 bulan tambahan dalam Perlembagaan pun harus dikeluarkan. Bukan semua hakim mendapatkan lanjutan 6 bulan ini - adakah mereka yang pro-PM atau pro- orang lain dapat, dan yang bersikap adil tak dapat? Ini menjadi tanda tanya...Seharusnya tak ada peruntukan mengenai 'tempoh perkhidmatan hakim' yang harus membolehkan soalan sebegini....Justeru, perlu satu tarikh tamat perkhidmatan untuk semua hakim - 66 tahun.
After Malaysian Bar, Sabah and Sarawak lawyers question extension of CJ’s tenure
Tuesday July 25, 2017
07:43 PM GMT+8
Md
Raus is to remain as Chief Justice for three more years following his
appointment as an additional judge of the Federal Court while Zulkefli,
who was appointed as an additional judge of the Federal Court, will
remain Court of Appeal president for two more years. — Bernama pic KOTA
KINABALU, July 25 — Lawyers in Sabah and Sarawak have followed their
peninsula counterparts in raising constitutional questions on the
appointment of the country’s two top judges and urged the judges in
question to reconsider accepting the posts.
Sabah Law Society (SLS) president Brenndon Keith Soh and the Advocates
Association of Sarawak (AAS) president Ranbir Singh Sangla suggested
that extending the tenure of both Tan Sri Md Raus Sharif as Chief
Justice and Tan Sri Zulkefli Ahmad Makinudin as Court of Appeal
president was unconstitutional and presented a negative image of the
country’s judiciary.
They said they did not doubt the characters and capabilities of the two
nor the constitutional powers of the Yang di-Pertuan Agong.
“However, it is clear that the timing and mode of the appointments and
or the extensions certainly gives rise to the various issues raised
above in this statement and specifically on the public perception and
confidence in the judiciary,” Soh and Ranbir said in a joint statement
today.
They urged the two top judges to reconsider remaining in office when
their controversial appointments might affect public confidence in the
judiciary.
They pointed to Article 122(1A) of the Federal Constitution, which
concern the powers of the Federal Court, as cause for their concern.
They asked if the appointments of the duo had considered, among others,
whether such appointments can be made when there are sufficient judges
of the Federal Court.
They also pointed out that the appointments were not made via the
Judicial Appointments Commission established under the Judicial
Appointments Commission Act 2009.
“Furthermore, there are unanswered questions as to why other competent
Federal Court Judges have not been considered suitable to be appointed
as chief justice or president of the court of appeal,” Soh and Ranbir
said.
They said that the public confidence in the judiciary must be given the
highest importance, citing from the United Kingdom’s Select Committee
on the Constitution: “It is important not only that the judiciary act
independently, but that they are seen to do so. This principle also
extends to the appointments process”.
Md Raus was scheduled to retire on
August 3 and Zulkefli on
September 27
this year upon reaching 66 years of age, but the Prime Minister’s
Office had earlier this month announced an extension of his tenure.
Md Raus would remain Chief Justice for three more years following his
appointment as an additional judge of the Federal Court while Zulkefli,
who was appointed as an additional judge of the Federal Court, would
remain Court of Appeal president for two more years.
The Malaysian Bar had described Raus and Zulkefli’s extensions as
"blatantly unconstitutional" while former prime minister Dr Mahathir
Mohamad said the extension had “all the earmarks of favouritism”. -
Malay Mail, 25/7/2017
Basic Principles on the Independence of the Judiciary
Adopted by the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders held at Milan from
26 August to
6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985
Whereas in the Charter of the United Nations the peoples of the world
affirm, inter alia , their determination to establish conditions under
which justice can be maintained to achieve international co-operation in
promoting and encouraging respect for human rights and fundamental
freedoms without any discrimination,
Whereas the Universal Declaration of Human Rights enshrines in
particular the principles of equality before the law, of the presumption
of innocence and of the right to a fair and public hearing by a
competent, independent and impartial tribunal established by law,
Whereas the International Covenants on Economic, Social and Cultural
Rights and on Civil and Political Rights both guarantee the exercise of
those rights, and in addition, the Covenant on Civil and Political
Rights further guarantees the right to be tried without undue delay,
Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,
Whereas the organization and administration of justice in every
country should be inspired by those principles, and efforts should be
undertaken to translate them fully into reality,
Whereas rules concerning the exercise of judicial office should aim
at enabling judges to act in accordance with those principles,
Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens,
Whereas the Sixth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, by its resolution 16, called upon the
Committee on Crime Prevention and Control to include among its
priorities the elaboration of guidelines relating to the independence of
judges and the selection, professional training and status of judges
and prosecutors,
Whereas it is, therefore, appropriate that consideration be first
given to the role of judges in relation to the system of justice and to
the importance of their selection, training and conduct,
The following basic principles, formulated to assist Member States in
their task of securing and promoting the independence of the judiciary
should be taken into account and respected by Governments within the
framework of their national legislation and practice and be brought to
the attention of judges, lawyers, members of the executive and the
legislature and the public in general. The principles have been
formulated principally with professional judges in mind, but they apply
equally, as appropriate, to lay judges, where they exist.
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State
and enshrined in the Constitution or the law of the country. It is the
duty of all governmental and other institutions to respect and observe
the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the
basis of facts and in accordance with the law, without any
restrictions, improper influences, inducements, pressures, threats or
interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a
judicial nature and shall have exclusive authority to decide whether an
issue submitted for its decision is within its competence as defined by
law.
4. There shall not be any inappropriate or unwarranted interference
with the judicial process, nor shall judicial decisions by the courts be
subject to revision. This principle is without prejudice to judicial
review or to mitigation or commutation by competent authorities of
sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or
tribunals using established legal procedures. Tribunals that do not use
the duly established procedures of the legal process shall not be
created to displace the jurisdiction belonging to the ordinary courts or
judicial tribunals.
6. The principle of the independence of the judiciary entitles and
requires the judiciary to ensure that judicial proceedings are conducted
fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Freedom of expression and association
8. In accordance with the Universal Declaration of Human Rights,
members of the judiciary are like other citizens entitled to freedom of
expression, belief, association and assembly; provided, however, that in
exercising such rights, judges shall always conduct themselves in such a
manner as to preserve the dignity of their office and the impartiality
and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or
other organizations to represent their interests, to promote their
professional training and to protect their judicial independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of
integrity and ability with appropriate training or qualifications in
law. Any method of judicial selection shall safeguard against judicial
appointments for improper motives. In the selection of judges, there
shall be no discrimination against a person on the grounds of race,
colour, sex, religion, political or other opinion, national or social
origin, property, birth or status, except that a requirement, that a
candidate for judicial office must be a national of the country
concerned, shall not be considered discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security,
adequate remuneration, conditions of service, pensions and the age of
retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed
tenure until a mandatory retirement age or the expiry of their term of
office, where such exists.
13. Promotion of judges, wherever such a system exists, should be
based on objective factors, in particular ability, integrity and
experience.
14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard
to their deliberations and to confidential information acquired in the
course of their duties other than in public proceedings, and shall not
be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right
of appeal or to compensation from the State, in accordance with national
law, judges should enjoy personal immunity from civil suits for
monetary damages for improper acts or omissions in the exercise of their
judicial functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial
and professional capacity shall be processed expeditiously and fairly
under an appropriate procedure. The judge shall have the right to a fair
hearing. The examination of the matter at its initial stage shall be
kept confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons
of incapacity or behaviour that renders them unfit to discharge their
duties.
19. All disciplinary, suspension or removal proceedings shall be
determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings
should be subject to an independent review. This principle may not apply
to the decisions of the highest court and those of the legislature in
impeachment or similar proceedings.
*******
THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT
(The Bangalore Draft Code of Judicial Conduct 2001adopted by the
Judicial Group on Strengthening Judicial Integrity, as revised at the Round
Table Meeting of Chief Justices held at the Peace Palace, The Hague, November
25-26, 2002)
Preamble
WHEREAS the Universal Declaration
of Human Rights recognizes as fundamental the principle that everyone is
entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of rights and obligations and of any criminal
charge.
WHEREAS the International
Covenant on Civil and Political Rights guarantees that all persons shall be
equal before the courts, and that in the determination of any criminal charge
or of rights and obligations in a suit at law, everyone shall be entitled,
without undue delay, to a fair and public hearing by a competent, independent
and impartial tribunal established by law.
WHEREAS the foregoing fundamental
principles and rights are also recognized or reflected in regional human rights
instruments, in domestic constitutional, statutory and common law, and in judicial
conventions and traditions.
WHEREAS the importance of a
competent, independent and impartial judiciary to the protection of human
rights is given emphasis by the fact that the implementation of all the other rights
ultimately depends upon the proper administration of justice.
WHEREAS a competent, independent
and impartial judiciary is likewise essential if the courts are to fulfil their
role in upholding constitutionalism and the rule of law.
WHEREAS public confidence in the
judicial system and in the moral authority and integrity of the judiciary is of
the utmost importance in a modern democratic society.
WHEREAS it is essential that
judges, individually and collectively, respect and honour judicial office as a
public trust and strive to enhance and maintain confidence in the judicial
system.
WHEREAS the primary
responsibility for the promotion and maintenance of high standards of judicial
conduct lies with the judiciary in each country.
AND WHEREAS the United Nations
Basic Principles on the Independence of the Judiciary are designed to secure
and promote the independence of the judiciary, and are addressed primarily to
States.
THE FOLLOWING PRINCIPLES are
intended to establish standards for ethical conduct of judges. They are
designed to provide guidance to judges and to afford the judiciary a framework
for regulating judicial conduct. They are also intended to assist members of
the executive and the legislature, and lawyers and the public in general, to
better understand and support the judiciary. These principles presuppose that
judges are accountable for their conduct to appropriate institutions
established to maintain judicial standards, which are themselves independent
and impartial, and are intended to supplement and not to derogate from existing
rules of law and conduct which bind the judge.
Value 1: INDEPENDENCE
Principle:
Judicial independence is a pre-requisite to the rule of law and a
fundamental guarantee of a fair trial. A judge shall therefore uphold and
exemplify judicial independence in both its individual and institutional aspects.
Application:
1.1 A judge shall exercise the
judicial function independently on the basis of the judge's assessment of the
facts and in accordance with a conscientious understanding of the law, free of
any extraneous influences, inducements, pressures, threats or interference, direct
or indirect, from any quarter or for any reason.
1.2 A judge shall be independent
in relation to society in general and in relation to the particular parties to
a dispute which the judge has to adjudicate.
1.3 A judge shall not only be
free from inappropriate connections with, and influence by, the executive and
legislative branches of government, but must also appear to a reasonable
observer to be free therefrom.
1.4 In performing judicial
duties, a judge shall be independent of judicial colleagues in respect of
decisions which the judge is obliged to make independently.
1.5 A judge shall encourage and
uphold safeguards for the discharge of judicial duties in order to maintain and
enhance the institutional and operational independence of the judiciary.
1.6 A judge shall exhibit and
promote high standards of judicial conduct in order to reinforce public
confidence in the judiciary which is fundamental to the maintenance of judicial
independence.
Value 2: IMPARTIALITY
Principle:
Impartiality is essential to the proper discharge of the judicial
office. It applies not only to the decision itself but also to the process by
which the decision is made.
Application:
2.1 A judge shall perform his or
her judicial duties without favour, bias or prejudice.
2.2 A judge shall ensure that his
or her conduct, both in and out of court, maintains and enhances the confidence
of the public, the legal profession and litigants in the impartiality of the
judge and of the judiciary.
2.3 A judge shall, so far as is
reasonable, so conduct himself or herself as to minimise the occasions on which
it will be necessary for the judge to be disqualified from hearing or deciding
cases.
2.4 A judge shall not knowingly,
while a proceeding is before, or could come before, the judge, make any comment
that might reasonably be expected to affect the outcome of such proceeding or
impair the manifest fairness of the process. Nor shall the judge make any
comment in public or otherwise that might affect the fair trial of any person or
issue.
2.5 A judge shall disqualify
himself or herself from participating in any proceedings in which the judge is
unable to decide the matter impartially or in which it may appear to a reasonable
observer that the judge is unable to decide the matter impartially. Such proceedings
include, but are not limited to, instances where
2.5.1 the judge has actual bias
or prejudice concerning a party or personal knowledge of disputed evidentiary
facts concerning the proceedings;
2.5.2 the judge previously served
as a lawyer or was a material witness in the matter in controversy; or
2.5.3 the judge, or a member of
the judge's family, has an economic interest in the outcome of the matter in
controversy:
Provided that disqualification of
a judge shall not be required if no other tribunal can be constituted to deal
with the case or, because of urgent circumstances, failure to act could lead to
a serious miscarriage of justice.
Value 3: INTEGRITY
Principle:
Integrity is essential to the proper discharge of the judicial office.
Application:
3.1 A judge shall ensure that his
or her conduct is above reproach in the view of a reasonable observer.
3.2 The behaviour and conduct of
a judge must reaffirm the people's faith in the integrity of the judiciary.
Justice must not merely be done but must also be seen to be done.
Value 4: PROPRIETY
Principle:
Propriety, and the appearance of propriety, are essential to the
performance of all of the activities of a judge.
Application:
4.1 A judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities.
4.2. As a subject of constant
public scrutiny, a judge must accept personal restrictions that might be viewed
as burdensome by the ordinary citizen and should do so freely and willingly. In
particular, a judge shall conduct himself or herself in a way that is consistent
with the dignity of the judicial office.
4.3. A judge shall, in his or her
personal relations with individual members of the legal profession who practise
regularly in the judge's court, avoid situations which might reasonably give
rise to the suspicion or appearance of favouritism or partiality.
4.4 A judge shall not participate
in the determination of a case in which any member of the judge's family
represents a litigant or is associated in any manner with the case.
4.5 A judge shall not allow the
use of the judge's residence by a member of the legal profession to receive
clients or other members of the legal profession.
4.6 A judge, like any other
citizen, is entitled to freedom of expression, belief, association and
assembly, but in exercising such rights, a judge shall always conduct himself
or herself in such a manner as to preserve the dignity of the judicial office
and the impartiality and independence of the judiciary.
4.7 A judge shall inform himself
or herself about the judge's personal and fiduciary financial interests and
shall make reasonable efforts to be informed about the financial interests of
members of the judge's family.
4.8 A judge shall not allow the
judge's family, social or other relationships improperly to influence the
judge's judicial conduct and judgment as a judge.
4.9 A judge shall not use or lend
the prestige of the judicial office to advance the private interests of the
judge, a member of the judge's family or of anyone else, nor shall a judge
convey or permit others to convey the impression that anyone is in a special position
improperly to influence the judge in the performance of judicial duties.
4.10 Confidential information
acquired by a judge in the judge's judicial capacity shall not be used or
disclosed by the judge for any other purpose not related to the judge's
judicial duties.
4.11 Subject to the proper
performance of judicial duties, a judge may:
4.11.1 write, lecture, teach and
participate in activities concerning the law, the legal system, the
administration of justice or related matters;
4.11.2 appear at a public hearing
before an official body concerned with matters relating to the law, the legal
system, the administration of justice or related matters;
4.11.3 serve as a member of an
official body, or other government commission, committee or advisory body, if
such membership is not inconsistent with the perceived impartiality and
political neutrality of a judge;or
4.11.4 engage in other activities
if such activities do not detract from the dignity of the judicial office or
otherwise interfere with the performance of judicial duties.
4.12 A judge shall not practise
law whilst the holder of judicial office.
4.13 A judge may form or join
associations of judges or participate in other organisations representing the
interests of judges.
4.14 A judge and members of the
judge's family, shall neither ask for, nor accept, any gift, bequest, loan or
favour in relation to anything done or to be done or omitted to be done by the
judge in connection with the performance of judicial duties.
4.15 A judge shall not knowingly
permit court staff or others subject to the judge's influence, direction or
authority, to ask for, or accept, any gift, bequest, loan or favour in relation
to anything done or to be done or omitted to be done in connection with his or
her duties or functions.
4.16 Subject to law and to any
legal requirements of public disclosure, a judge may receive a token gift,
award or benefit as appropriate to the occasion on which it is made provided that
such gift, award or benefit might not reasonably be perceived as intended to influence
the judge in the performance of judicial duties or otherwise give rise to an appearance
of partiality.
Value 5: EQUALITY
Principle:
Ensuring equality of treatment to all before the courts is essential to
the due performance of the judicial office.
Application:
5.1 A judge shall be aware of,
and understand, diversity in society and differences arising from various
sources, including but not limited to race, colour, sex, religion, national origin,
caste, disability, age, marital status, sexual orientation, social and economic
status and other like causes ("irrelevant grounds").
5.2 A judge shall not, in the
performance of judicial duties, by words or conduct, manifest bias or prejudice
towards any person or group on irrelevant grounds.
5.3 A judge shall carry out
judicial duties with appropriate consideration for all persons, such as the
parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation
on any irrelevant ground, immaterial to the proper performance of such duties.
5.4 A judge shall not knowingly
permit court staff or others subject to the judge's influence, direction or
control to differentiate between persons concerned, in a matter before the judge,
on any irrelevant ground.
5.5 A judge shall require lawyers
in proceedings before the court to refrain from manifesting, by words or
conduct, bias or prejudice based on irrelevant grounds, except such as are
legally relevant to an issue in proceedings and may be the subject of legitimate
advocacy.
Value 6: COMPETENCE AND DILIGENCE
Principle:
Competence and diligence are prerequisites to the due performance of
judicial office.
Application:
6.1 The judicial duties of a
judge take precedence over all other activities.
6.2 A judge shall devote the
judge's professional activity to judicial duties, which include not only the
performance of judicial functions and responsibilities in court and the making
of decisions, but also other tasks relevant to the judicial office or the
court's operations.
6.3 A judge shall take reasonable
steps to maintain and enhance the judge's knowledge, skills and personal
qualities necessary for the proper performance of judicial duties, taking
advantage for this purpose of the training and other facilities which should be
made available, under judicial control, to judges.
6.4 A judge shall keep himself or
herself informed about relevant developments of international law, including
international conventions and other instruments establishing human rights
norms.
6.5 A judge shall perform all
judicial duties, including the delivery of reserved decisions, efficiently,
fairly and with reasonable promptness.
6.6 A judge shall maintain order
and decorum in all proceedings before the court and be patient, dignified and
courteous in relation to litigants, jurors, witnesses, lawyers and others with
whom the judge deals in an official capacity. The judge shall require similar conduct
of legal representatives, court staff and others subject to the judge's
influence, direction or control.
6.7 A judge shall not engage in
conduct incompatible with the diligent discharge of judicial duties.
IMPLEMENTATION
By reason of the nature of
judicial office, effective measures shall be adopted by national judiciaries to
provide mechanisms to implement these principles if such mechanisms are not already
in existence in their jurisdictions.
DEFINITIONS
In this statement of principles,
unless the context otherwise permits or requires, the following meanings shall
be attributed to the words used:
Court staff " includes the personal staff of the judge
including law clerks."
Judge " means any person exercising judicial power, however
designated."
Judge's family " includes a judge's spouse, son, daughter,
son-in-law, daughter-in-law, and any other close relative or person who is a
companion or employee of the judge and who lives in the judge's household.”
Judge's spouse" includes a domestic partner of the judge or
any other person of either sex in a personal relationship with the judge.”
