Arifin Zakaria (ex CJ)dan PM Najib, serta Raus kini, menyebabkan 'Judicial Crisis' baru untuk Malaysia?

Tarikh  akhir Raus sebagai Ketua Hakim Negara adalah 3/8/2017 (iaitu bila beliau mencapai umur 66 tahun dan 6 bulan)

Tetapi, kita diberitahu bahawa Ketua Hakim Negara sebelum itu, iaitu YAA Tun Dato’ Seri Arifin bin Zakaria, telah pada 30/3/2017, yang merupakan tarikh terakhir beliau memegang posisi Ketua Hakim Negara ...kononnya telah menasihati YDP Agung untuk melantik Raus sebagai 'hakim tanbahan' bermula 4/8/2017 untuk tempoh 3 tahun lagi...)

Kemudian PM Najib kononnya telah menasihat YDP Agung untuk melantik (atau mengekalkan) Raus sebagai Ketua Hakim Negara bermula 4/8/2017 untuk tempuh 3 tahun...

Raus telah mengankat sumpah dan dilantik Ketua Hakim Negara pada jam lebih kurang 10.30 malam, 4/8/2017....

Saturday, 5 August 2017

Md Raus sworn in as CJ once again

It’s official: The King handing over the letter of appointment to Md Raus at Istana Negara. — Bernama

PETALING JAYA: Tan Sri Md Raus Sharif has been sworn in again as the Chief Justice. 

The ceremony before the Yang di-Pertuan Agong at Istana Negara started at about 10.30pm yesterday and was witnessed by Prime Minister Datuk Seri Najib Tun Razak, Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said, Court of Appeal President (PCA) Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Malaya Tan Sri Ahmad Maarop and Federal Court Chief Registrar Datuk Seri Latifah Mohd Tahar. - Star, 5/8/2017

SEBELUM 4/8/2017 - harapan ramai adalah bahawa Raus Sharif akan lakukan yang betul dan bersara pada 3/8/2017, dan seterusnya akan MENOLAK perlantikan beliau sebagai 'hakim tambahan' dan Ketua Hakim Negara mulai 4/8/2017 dan seterusnya untuk tempuh tiga(3) tahun akan datang...MALANGNYA, RAUS  SHARIF TIJDAK BERBUAT DEMIKIAN ... dan Malaysia, mengikut pendapat saya, berada dalam JUDICIAL CRISIS ,yang baru.

* Jika Raus Sharif meletak jawatan pada 3/8/2017, kemungkinan besar Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin akan menjadi Ketua Hakim Negara sehingga 27 September 2017(tarikh bila beliau mencapai umur 66 tahun 6 bulan)

SEKARANG KITA LIHAT KEMBALI KEPADA SIAPA YANG MENYEBABKAN 'MASALAH'  INI...

1.  YAA Tun Dato’ Seri Arifin bin Zakaria

 The appointment of YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as additional judges in the Federal Court after each of them reaching the age of 66 years and 6 months is on the respectful suggestion and advice of the Chief Justice at the material time, YAA Tun Dato’ Seri Arifin bin Zakaria to His Majesty the Yang di-Pertuan Agong on the 30th of March 2017, before Yang Amat Arif retired....

Mengapa Arifin Zakaria berbuat demikian? Adakah beliau diarah? Adakah beliau mendapat apa-apa 'hadiah' atau 'balasan' untuk melakukan apa yang telah dia buat? Apakah yang Arifin Zakaria buat sekarang? Selain daripada pencen, adakah beliau mendapat pendapatan lain hasil perlantikkan/'recommendation'  PM Najib atau UMNO-BN? Mungkinkah ada 'ugutan' terlibat?

Apa yang Arifin buat sangat BAHAYA - kerana jika Ketua Hakim Negara diakhir tempoh perkhidmatan boleh buat ini, ....apa salahnya Najib melakukan perkara sama pada tarikh akhir beliau ada kuasa selaku Perdana Menteri...dan YDP Agung tak ada pilihan tetapi lakukan sapertimana dinasihati...PM ada banyak kuasa dalam Perlembagaan ini...

Jika Raus kekal jadi ketua Badan Kehakiman, PM Najib pun boleh lantik ramai Hakim hari terakhir beliau ada kuasa?

2. PM Najib  

Ya, beliau seharusnya sedar bahawa Arifin Zakaria telah melakukan sesuatu yang salah.... dan beliau mungkin tidak dapat elak Raus terus kekal sebagai 'hakim tambahan' untuk tiga(3) tahun, jika perlantikan itu akhirnya didapati 'sah'..

TETAPI Najib memburukkan keadaan dengan menasihat YDP Agung untuk terus melantik Raus sebagai Ketua Hakim Negara untuk tempuh 3 tahun. Najib boleh melantik  Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin atau mana-mana orang berkelayakkan menjadi Ketua Hakim Negara mulai 4/8/2017 ...tetapi beliau tak berbuat demikian...tetapi telah memburukkan keadaan dengan melantik Raus sekali lagi menjadi Ketua Hakim Negara....

Ramai kata tindakan perlantikkan sebagai 'hakim tambahan' serta juga perlantikkan terus jadi Ketua Hakim Negara adalah 'tidak sah' kerana tidak mematuhi undang-undang Malaysia - sama ada Perlembagaan Malaysia atau undang-undang lain...

Justeru, pihak berpendirian begitu, ada opsyen memfailkan tindakan Mahkamah --- TETAPI bolehkah percaya hakim dan sistem penghakiman di Malaysia untuk bertindak secara bebas, berintegriti, berkecuali....? Ini isu 'ketua' semua hakim - orang perseorangan yang ada pengaruh besar masa depan hakim di Malaysia? 

Bagi saya, ini bukan hanya setakat isu sama ada Perlembagaan Negara atau undang-undang Malaysia dipatuhi...atau tidak...ianya lebih besar daripada ini. Ini isu NILAI dan PRINSIP...Tambahan pula, Perlembagaan Malaysia pun ada banyak perkara yang tak betul, dan telah dipinda berkali-kali. Pindaan pun kebanyakkan masa bukan setelah mendapat 'consensus' di Parliament tetapi hanya dengan undi dua pertiga, yang boleh dilakukan kerana parti memerintah semasa menang lebih dua pertiga kerusi Parlimen...

UN Basic Principles on the Independence of the Judiciary - Chief Justice and imminent 'judicial crisis'? - ini bukan sahaja isu Perlembagaan dan/atau tafsiran Perlembagaan, tetapi lebih penting adalah isu PRINSIP - di sini kita melihat piawai antarabangsa yang juga terpakai di Malaysia, sebuah negara dalam Bangsa-Bangsa Bersatu..

BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

Siapakah itu Hakim?

Adakah hakim perlu bebas - bebas membuat keputusan berasaskan keadilan tanpa tekanan atau pengaruh mana-mana pihak?

Adakah Hakim perlu pro-kerajaan dan Perdana Menteri - jangan lupa banyak kes difailkan terhadap PM, Menteri, Polis, Kerajaan...apakah jenis Hakim yang diperlukan di Malaysia?

Adakah kita perlukan Hakim yang bebas dan berkecuali - tidak takut jika beliau membuat keputusan tidak berpihak kerajaan?

Jika yang diperlukan adalah hakim sedemikian...apa yang perlu dilakukan untuk memastikan bahawa hakim boleh bertindak adil tanpa bimbang apa Perdana Menteri atau kerajaan atau 'ketua hakim'(atau hakim senior lain) boleh buat?

In perkara yang sudah difikirkan, dan satu yang diperlukan adalah 'Security of Tenure' - ertinya tak boleh buang kerja 'hakim' setelah dilantik jadi hakim sehingga mencapai umur persaraan, di Malaysia kini 6 tahun. Bukan sahaja itu, jika dilihat daripada piawai antara bangsa termasuk Prinsip diterima oleh Bangsa-bangsa bersatu adalah tarikh akhir tempoh perkhidmatan juga harus PASTI - jika mana-mana orang sama ada Menteri, PM atau Hakim lain boleh menyebabkan dilanjutkan tempoh - "Security of Tenure'(Jaminan Tempoh Perkhidmatan) sebagai satu cara menjamin kebebasan hakim akan dikompromi...

 SECURITY FOR TENURE - memerlukan kepastian tarikh akhir perkhidmatan

2. 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.- UN Basic Principles on the Independence of the Judiciary...

Justeru, jika dilihat Perlembagaan Malaysia kini, ada beberapa pindaan yang perlu dibuat segera memastikan tarikh akhir tempoh perkhidmatan mesti PASTI - tidak boleh dilanjutkan, antara lain,..

a) Kini ada peruntukkan yang membenarkan YDP Agung melanjutkan tempuh untuk 6 bulan maksima selepas tarikh persaraan 66 > Nyata yang menasihay YDP Agung adalah PM, dan ada hakim dilanjutkan ada yang tak dapat lanjutan ... justeru, ini kena dikeluarkan, dan tarikh akhir pasti semua hakim adalah tarikh persaraan.

b) Peruntukkan mengenai 'hakim tambahan' yang telah digunakan dalam isu Raus - ia terpaksa dikeluarkan untuk mendapat kepastian tarikh akhir tempoh perkhidmatan..

c) Pesuruhjaya Kehakiman(Judicial Commissioners) - JC ini biasa dikatakan dilantik untuk 'contract 2 tahun' - selepas itu mungkin dilanjutkan lagi 2 tahun. Mereka mungkin akhir dilantik jadi Hakim atau tidak. JC ada kuasa sama dengan Hakim...Apa ini? 'Probation' untuk Hakim ...Hakim mesti dilantik terus jadi Hakim - tak ada 'probation' dsb... Justeru, pemilihan Hakim mesti teliti...

Kit Siang’s questions for chief justice Raus Sharif

FMT Reporters

 | August 8, 2017 

The veteran parliamentarian wants Raus to justify his acceptance of tenure extension and asks if he has been faithful to his oath of office.

KUALA LUMPUR: MP for Gelang Patah Lim Kit Siang has asked Raus Sharif, whose tenure as chief justice was extended on Aug 4, to prove that his appointment is indeed constitutional.

The DAP parliamentary leader said in a statement today that he had yesterday asked Raus whether it would be constitutional and proper for Raus to continue to be appointed as “additional judge” in August 2020 to extend his tenure as chief justice for another three years?”

“Raus has yet to answer. I await his answer. But I want to ask him a further question:

“Unless Raus can defend as ‘unprecedented but constitutional’ his re-appointment as chief justice in August 2020 for another three years using the unconstitutional backdoor of ‘additional judge’, how can he justify his present re-appointment?”

Raus was appointed chief justice on April 1 and retired on Aug 3. However, he was appointed an “additional judge” and his tenure as chief justice extended for three years the following day.

The appointment of Raus has been mired in controversy following protests from the legal fraternity, who said no Federal Court judge can remain in his administrative post after reaching 66 years and six months of age.

The Malaysian Bar has announced it will challenge the decision to extend his tenure as an additional judge of the Federal Court.

In his statement today, Lim also wanted Raus to answer another question: “Whether he is true to his solemn oath of office and allegiance to ‘bear true faith and allegiance to Malaysia, and will preserve, protect and defend the Constitution?’”

The veteran politician said the ball was now in Raus’ court. - FMT News, 8/8/2017

 

 

Raus Sharif appointment worse than Salleh Abas sacking, says Nurul Izzah

---

Updated 2 days ago · Published on 6 Aug 2017 8:10AM

PKR vice-president Nurul Izzah Anwar says Prime Minister Najib Razak is trying to further 'emasculate the judiciary'. – The Malaysian Insight file pic, August 5, 2017.

PKR vice-president Nurul Izzah Anwar yesterday night called Chief Justice Raus Sharif's term extension and appointment “worse” than the sacking of the Lord President of the Supreme Court, Salleh Abas, in 1988 by then prime minister Dr Mahathir Mohamad.

The sacking triggered the 1988 constitutional crisis and many Malaysians saw the removal of Salleh and two other Supreme Court judges as the end of judicial independence in Malaysia.

The Lembah Pantai MP and daughter of jailed de facto PKR leader Anwar Ibrahim said Prime Minister Najib Razak’s appointment of Raus and Court of Appeal president Zulkefli Ahmad Makinudin was no different from Dr Mahathir’s sacking of Salleh.

“It’s an outrageous transgression on our judiciary,” she said.

“Obviously he (Najib) wants to emasculate the judiciary further. Najib Razak has not just caused an uproar wth his decision, he has also created a low point in the Malaysian judiciary,” Nurul said in reaction to the term extensions of Raus and Zulkefli, who are both past the mandatory retirement age of 66 years and six months.

Speaking to The Malaysian Insight at the PKR open house in Kuching, she said she was “extremely sad” because what Najib went "beyond winning the election or the survivability of any political party”.

“The appointments affect our very democratic institution. The judiciary is the bulwark against the excesses of the legislative. Where do we turn to after this?

“I don't know what is going on in Najib's mind.

“All I know is that this smacks of a desperate attempt by a kleptocratic regime trying to cling to power.

“The ramification of Najib's decision will not just be felt in the legal fraternity but by all Malaysians, and Malaysian have to expect the worst in judicial outcomes after this."

See Chee How, the elected representative of the urban Batu Lintang seat in Kuching, said the swearing-in of the chief justice was an important event that should have been conducted in a dignified manner.

“You don't do it in the middle of the night, (as though) worried that if he waits for daybreak, someone else will be sworn in instead and steal the position from him.

“Yes, we have politicians doing that (swearing in) but this is the chief justice.

“He can't be doing what the politicians are doing.

“That speaks a lot about Malaysia.

“I don't think other countries swear in their chief justice in the middle of the night.”

See, a senior lawyer, said that while he was unable to categorically declare the term extension “constitutional, legal, right or wrong”, the fact that it was being challenged by so many people “on all fronts” showed that something was not right about it.

Pakatan Harapan leadership recently presented a memorandum to the King stating its opposition to the term extension, which the Bar Council deems unconstitutional and is resolved to challenge in court. – August 6, 2017, The Malaysian Insight

Bar approves boycott of CJ and COA president in social events(Malaysiakini)

See earlier post:

Hopefully CJ Raus will quit - Resolution of the Malaysian Bar

Bar approves boycott of CJ and COA president in social events

   Geraldine Tong     Published 3 Aug 2017, 7:41 pm     Updated 3 Aug 2017, 10:06 pm

 

The Malaysian Bar has resolved to boycott Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin from their social functions.

Members of the Bar are also encouraged to decline social invitations from them.

This resolution is part of a motion that was proposed by the Bar and approved by a "resounding majority" in its extraordinary general meeting in Kuala Lumpur today. 

"The Bar resolved that as a sign of protest we will decline social invitations from the judiciary and similarly we will not extend our invitations to them in respect of our social functions.

"But that, let me make it very clear, does not mean that we do not engage with the judiciary.

"We will still continue to engage with the judiciary in respect of all official matters," Bar president George Varughese said in a press conference after the EGM today.

The Bar convened for the EGM today to address what it described as the "blatantly unconstitutional" appointment of Md Raus and Zulkefli as additional judges.

“There is nothing personal against the persons itself,” Varughese said, stressing that they are merely protesting the appointments.

When asked whether they would be attending the Legal Year event, he said that is not a social event.

“I believe that is an official event in the legal calendar so that is something which the Bar in all likelihood will still participate in.

“Unless the Bar Council is subsequently asked not to do so, we will still continue to attend all official functions,” he said.

The motion, as submitted by Varughese, is to “uphold the supremacy of the federal constitution and defending the independence and integrity of the judiciary”.

He said that out of the 993 members who attended the EGM today, only less than 10 members abstained or voted against the motion.

The EGM required a quorum of 500 members. There is currently over 16,000 members of the Bar.

This resolution regarding the boycott of social events involving the CJ and COA president is the sixth out of eight resolutions contained within the approved motion.

This particular resolution stated that “so long as they remain in office as Chief Justice and President of the Court of Appeal after they attain 66 years and six months, Md Raus and Zulkefli shall not be invited to any social function of the Malaysian Bar or Bar Council, and members of the Bar are encouraged to decline social invitations from them, or inviting them”.

In the motion, Varughese cited Article 125(1) of the constitution which stipulates that “a judge of the federal court shall hold office until he attains the age of 66 years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve”.

 

“There is no provision in the federal constitution, and it is thus unconstitutional, for a serving chief justice or a serving president of the Court of Appeal to continue to hold the positions of chief justice and president of the Court of Appeal beyond the prescribed age limit of 66 years and six months,” the motion read.

Aside from this resolution on social events, the Bar also resolves that the appointment of Md Raus and Zulkefli as additional judges, and to continue the hold the position of chief justice and president of the Court of Appeal respectively, beyond the age limit of 66 years and six months to be unconstitutional, null and void.

Varughese also said that the Bar intends to file a legal challenge against Md Raus and Zulkefli’s appointment and that it has resolved to urge the Chief Judge of Malaya Ahmad Maarop to advise the Agong to appoint retired judges as additional judges specifically to preside this challenge.- Malaysiakini, 3/8/2016

Malaysian Bar to debate two motions following CJ, COA president's extension

• mdraussharif
• themalaysianbar

5 comments     Published 1 Aug 2017, 5:46 pm     Updated 1 Aug 2017, 5:58 pm

• 

The Malaysian Bar will be debating two motions during its extraordinary general meeting (EGM) this Thursday, following the government's decision to extend the tenure of the country's chief justice and the Court of Appeal president.

A motion on "upholding the supremacy of the Federal Constitution and defending the independence and integrity of the judiciary” was proposed by Malaysian Bar president George Varughese while lawyers Charles Hector, Francis Pereira and R Shanmugam proposed the motion on "protecting judicial independence in Malaysia and ensure all safeguards, especially security of tenure remain strong and uncompromised”.

The EGM will be held from 4pm onwards at the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), while the quorum for the EGM would be 500 members of the Bar.

The EGM would be dissolved if the quorum is not met by 5pm, Bar secretary Roger Chan said in a circular dated July 26.

Varughese last month announced that the Bar will convene the EGM to address what it described as the "blatantly unconstitutional" appointments of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges.

Varughese, who proposed the first motion, cited Article 125(1) of the constitution which stipulates that “a judge of the federal court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve”
.
"There is no provision in the Federal Constitution, and it is thus unconstitutional, for a serving chief justice or a serving president of the court of appeal to continue to hold the positions of chief justice and president of the Court of Appeal beyond the prescribed age limit of 66 years and six months."

Among others, the Bar resolves:

That the appointment of Md Raus purportedly as an additional judge, and to continue to hold the position of chief justice beyond the age limit of 66 years and six months as prescribed in the Federal Constitution, is unconstitutional, null and void;

That the appointment of Zulkefli purportedly as an additional judge, and to continue to hold the position of president of the court of appeal beyond the age limit of 66 years and six months as prescribed in the Federal Constitution, is unconstitutional, null and void.

Calling both of them to decline the appointments, Varughese in his proposal said that the Bar will no longer have confidence in the two continuing to hold their respective offices if they fail to do so.

 The Prime Minister's Office (PMO) last month announced that with Md Raus and Zulkefli's appointment as additional judges, they will retain their existing offices for another three and two years respectively.

The PMO said the appointment of Md Raus and Zulkefli was based on the recommendation of then chief justice Arifin Zakaria who retired on March 31.

However, critics have also questioned whether Arifin had the authority to recommend additional judges for periods that had past his retirement. _ Malaysiakini, 1/8/2017

Hopefully CJ Raus will quit - Resolution of the Malaysian Bar

Resolution Adopted at the Extraordinary General Meeting of the Malaysian Bar Held at KL and Selangor Chinese Assembly Hall (Thursday, 3 Aug 2017)

Resolution on Upholding the Supremacy of the Federal Constitution and Defending the Independence and Integrity of the Judiciary

WHEREAS:

(1) The Office of the Prime Minister announced, in a media statement dated 7 July 2017 (see Appendix A), that:  

“Pursuant to Article 122B(1) of the Federal Constitution, His Majesty the Yang di-Pertuan Agong, on the advice of the Prime Minister and after consultation with the Conference of Rulers convened on the 24th and 25th of May 2017, is pleased to announce the following:-  

(i) YAA Tan Sri Dato’ Seri Md Raus bin Sharif who has been appointed as an additional judge in the Federal Court for a period of 3 years commencing from 4th of August 2017 pursuant to Article 122(1A) of the Federal Constitution, to continue holding the position of the Chief Justice of the Federal Court from the date and for the same period; and  

(ii) YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin who was appointed as an additional judge for the Federal Court for a period of 2 years commencing from 28th of September 2017 pursuant to Article 122(1A) of the Federal Constitution, to continue holding the position of the President of the Court of Appeal from the date and for the same period.  

2.  The appointment of YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as additional judges in the Federal Court after each of them reaching the age of 66 years and 6 months is on the respectful suggestion and advice of the Chief Justice at the material time, YAA Tun Dato’ Seri Arifin bin Zakaria to His Majesty the Yang di-Pertuan Agong on the 30th of March 2017, before Yang Amat Arif retired. The proposal and advice was accepted by His Majesty the Yang di-Pertuan Agong in accordance with Article 122(1A) of the Federal Constitution.

3.  The above decisions and procedure are consonant with the provisions of the Federal Constitution now.

4.  The Malaysian Government is however contemplating tabling a proposal in Parliament for the amendment of Article 125 of the Federal Constitution to raise the retirement age of Apex Court judges to 70 years. This is consonant with the Commonwealth and international practice and jurisprudence.”;

(2) The Office of the Chief Justice of the Federal Court (“Chief Justice”) and the Office of the President of the Court of Appeal are key positions in the Judiciary, an institution that is independent under the doctrine of separation of powers that underpins our constitutional framework;

(3) The Chief Justice, as the Head of the Federal Court, and the President of the Court of Appeal, as the Head of the Court of Appeal, are both leaders of the Judicial branch of the Government, which is entrusted with the supreme duty of determining the constitutionality of laws passed by the Legislative branch, and the legality of decisions made by the Executive branch;

(4) Pursuant to their solemn oaths of office and allegiance, the Chief Justice and the President of the Court of Appeal pledge to “bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution”;   

(5) Article 125(1) of the Federal Constitution stipulates that “… a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve”.  There is no provision in the Federal Constitution, and it is thus unconstitutional, for a serving Chief Justice or a serving President of the Court of Appeal to continue to hold the positions of Chief Justice and President of the Court of Appeal, respectively, beyond the prescribed age limit of 66 years and 6 months;    

(6) Article 122(1A) of the Federal Constitution provides that “Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court.” (emphasis added).  This provides an exception that is clearly limited to the appointment of an additional judge, and not for the appointment of a Chief Justice or a President of the Court of Appeal;     

(7) It is unconstitutional for YAA Tun Dato’ Seri Arifin bin Zakaria to have advised, on 30 March 2017 (on the eve of his retirement), that YAA Tan Sri Dato’ Seri Md Raus bin Sharif (“current CJ”) and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin (“current PCA”) be appointed, purportedly as additional judges under Article 122(1A) of the Federal Constitution, when the latter two judges were still serving as judges;

(8) Nothing in Article 122(1A) of the Federal Constitution permits an outgoing Chief Justice to advise the Yang di-Pertuan Agong in respect of any appointment of additional judges that is to take effect after he has ceased to be the Chief Justice.  Otherwise, an outgoing Chief Justice may, before his retirement, advise on the appointment of additional judges that would take effect when he is no longer the Chief Justice, and even long after;  

(9) Furthermore, nothing in Article 122(1A) of the Federal Constitution permits any advice of an outgoing Chief Justice to be acted upon after his retirement; 

(10) Any such advice given by an outgoing Chief Justice would also unconstitutionally and unacceptably encroach upon and usurp the duties and powers of the serving Chief Justice, as the provision in Article 122(1A) of the Federal Constitution should only be exercised, if at all, by the serving Chief Justice, and on the basis of circumstances existing during the time that he is occupying the Office of the Chief Justice;

(11) Any advice pursuant to Article 122(1A) of the Federal Constitution must therefore only emanate from a serving Chief Justice; and be considered, be acted upon, and be in respect of appointments that would take effect, during such serving Chief Justice’s tenure;

(12) Article 122(1) of the Federal Constitution stipulates that “the Federal Court shall consist of a president of the Court (to be styled “the Chief Justice of the Federal Court”), of the President of the Court of Appeal, of the Chief Judges of the High Courts and, until the Yang di-Pertuan Agong by order otherwise provides, of eleven other judges and such additional judges as may be appointed pursuant to Clause (1A)” (emphasis added), which unequivocally indicates that an additional judge cannot also be the Chief Justice or the President of the Court of Appeal;  

(13) The Malaysian Bar does not question the abilities, capabilities or suitability of the current CJ and the current PCA.  However, their tenures do, and must, come to an end on 3 August 2017 and 27 September 2017, respectively, and they cannot continue to hold those respective positions thereafter;

(14) The unconstitutional appointments of the current CJ and the current PCA purportedly as additional judges in the Federal Court, and to continue to hold the positions of Chief Justice and President of the Court of Appeal, respectively, beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution, lend to the inference that there is a dearth of appropriate candidates among the eminent current members of the Federal Court, who are suitable and have the necessary abilities and capabilities;

(15) Should the current CJ and/or the current PCA continue to hold their respective positions beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution, any orders and/or judgments that may be made by panels of which the current CJ and/or the current PCA become(s) member(s) may be called into question as to their validity.  Such orders and/or judgments will thus be controversial and adversely affect public confidence in the administration of justice, which would be inimical to public interest;   

(16) Should the current CJ and/or the current PCA accept their respective unconstitutional appointments, they will assume the risk of conducting themselves in a manner not befitting of a judge, or risk bringing disrepute to the office of a judge, contrary to Paragraphs 7(8) and 8(7) of the Judges’ Code of Ethics 2009[1] as prescribed under Article 125(3B) and Article 125(3C) of the Federal Constitution;

(17) The Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razak (“Prime Minister”), acted unconstitutionally in relying on an erroneous interpretation of the Federal Constitution in advising the Yang di-Pertuan Agong that the current CJ and the current PCA, who have been appointed purportedly as additional judges in the Federal Court, can continue to hold the positions of Chief Justice and President of the Court of Appeal, respectively, beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution;

(18) Furthermore, the Prime Minister should not have given such advice to the Yang di-Pertuan Agong when the Prime Minister is in a conflict of interest position, as he is a litigant in numerous proceedings pending in the courts, both in his official and personal capacity;

(19) The said unconstitutional appointments would result in a severe erosion of public confidence in the institution of the Judiciary, and may invite an adverse perception as to its independence and integrity; and

(20) The vital nature of the roles and duties of the Chief Justice and the President of the Court of Appeal under the Federal Constitution requires the circumstances of their appointments to be beyond any constitutional controversy.

THEREFORE, the Malaysian Bar hereby resolves:

(A) That the appointment of YAA Tan Sri Dato’ Seri Md Raus bin Sharif purportedly as an additional judge, and to continue to hold the position of Chief Justice beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution, is unconstitutional, null and void;   

(B) That the appointment of YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin purportedly as an additional judge, and to continue to hold the position of President of the Court of Appeal beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution, is unconstitutional, null and void;     

(C) That YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin be called upon to decline the aforesaid unconstitutional appointments, and to retire as Chief Justice and as President of the Court of Appeal on 3 August 2017 and 27 September 2017, respectively;

(D) That if the aforesaid unconstitutional appointments are not declined and/or they do not retire, the Malaysian Bar will no longer have confidence in YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin continuing to hold their respective offices as Chief Justice and as President of the Court of Appeal beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution; 

(E) That if the aforesaid unconstitutional appointments are not declined and/or they do not retire, YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin should not sit on the bench of any court, or exercise any judicial or administrative powers whatsoever attached to the respective offices of the Chief Justice and the President of the Court of Appeal; including but not limited to the power to empanel any court to hear any proceeding; 

(F) That so long as they remain in office as Chief Justice and President of the Court of Appeal after they attain 66 years and 6 months, YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin shall not be invited to any social function of the Malaysian Bar or Bar Council, and Members of the Bar are encouraged to decline social invitations from them, or inviting them;

(G) That in the event of any legal challenge in respect of the appointments, since all serving judges are in a position of conflict, the Malaysian Bar, pursuant to Article 131A of the Federal Constitution and Section 9 of the Courts of Judicature Act 1964, calls upon the Chief Judge of the High Court in Malaya to advise the Yang di-Pertuan Agong, under Article 122(1A) of the Federal Constitution, to appoint persons who have held high judicial office in Malaysia, who are not serving judges, as additional judges for the purpose of empanelling a bench to hear and determine the said legal challenge; and

(H) That the Bar Council be mandated to take any and all steps that it deems appropriate regarding the aforesaid unconstitutional appointments, including instituting legal proceedings, for and on behalf of the Malaysian Bar, to challenge the validity of the appointments, and to seek interim as well as permanent reliefs, and to give effect to the resolutions above.

---

[1]  Paragraph 7(8) provides:  A judge shall not conduct himself in a manner which is not befitting of a judge or which brings or is calculated to bring disrepute to his office as a judge.

Paragraph 8(7) provides: A judge shall not act in a manner which brings disrepute to his office as a judge.

Jika Raus kekal jadi ketua Badan Kehakiman, PM Najib pun boleh lantik ramai Hakim hari terakhir beliau ada kuasa?

Perdana Menteri Najib pun boleh pada hari terakhir menjadi Perdana Menteri, pun boleh melantik seberapa ramai Hakim Mahkamah Tinggi, Hakim Mahkamah Rayuan dan Hakim Mahkamah Persekutuan....dan selepas itu Yang Di Pertuan Agung TERPAKSA melakukan sapertimana dinasihati Perdana Menteri - tak kira UMNO-BN sudah tewas dalam PRU 14, dan ada kerajaan gabungan parti pembangkang dan Perdana Menteri Baru...

Inilah apa ertinya jika  YAA Tan Sri Dato’ Seri Md Raus bin Sharif(Chief Justice of the Federal Court)  terus kekal sebagai Hakim selepas 3/8/2017 - dan terus memegang jawatan Ketua Hakim Negara selepas tarikh tersebut untuk tiga(3) tahun yang akan datang...

Justeru - 4 OGOS 2017 merupakan tarikh yang sangat penting untuk semua rakyat Malaysia...

Apa yang berlaku dalam kes YAA Tan Sri Dato’ Seri Md Raus?

Pada tarikh terakhir terma Ketua Hakim yang lalu, beliau telah menasihatkan Yang DiPertuan Agung untuk melantik ' YAA Tan Sri Dato’ Seri Md Raus bin Sharif' sebagai 'hakim tambahan' berkuatkuasa mulai 4/8/2017 untuk terma 3 tahun.

Yang DiPertuan Agung telah mengikut 'nasihat' Ketua Hakim tersebut dan seterus telah buat saperti mana dinasihati...

Yang DiPertuan Agung sebenarnya tidak ada kuasa untuk melakukan selain daripada apa yang yang telah dinasihatinya oleh pihak tertentu (biasanya Perdana Menteri, dan dalam kes ini 'Ketua Hakim Negara'... ini jelas daripada Artikel 40 Perlembagaan Persekutuan...

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.’

Kuasa pemberian 'advise'(nasihat) kepada YDP Agung untuk melantik 'hakim tambahan' adalah ditangan "Chief Justice of the Federal Court'...

Jangan lupa nahawa PM Najib yang ada kuasa menentukan siapa jadi Hakim...nasihat beliau harus dituruti YDP Agung 

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.

Justeru, apa yang berlaku pada Jumaat (4/8/2017) adalah sangat penting kepada masa depan negara...

Kalau 'Chief Justice of the Federal Court' dapat memberi nasihat pada hari terakhir sebelum beliau habis tempoh perkhidmatan - ini bermakna bahawa PM pun boleh buat perkara yang sama ...

Implikasi sangat besar...

Lihat post terdahulu:-

4 Ogos - 'krisis badan kehakiman' jika YAA Tan Sri Dato’ Seri Md Raus kekal 'Chief Justice' untuk 3 tahun?

Chief Justice, even after retirement, for 3 more years? Wrong or Right? peruntukkan Perlembangan mengenai hakim, perlantikan hakim...badan kehakiman boleh dilihat dalam post ini.

UN Basic Principles on the Independence of the Judiciary - Chief Justice and imminent 'judicial crisis'? - ini bukan sahaja isu Perlembagaan dan/atau tafsiran Perlembagaan, tetapi lebih penting adalah isu PRINSIP - di sini kita melihat piawai antarabangsa yang juga terpakai di Malaysia, sebuah negara dalam Bangsa-Bangsa Bersatu..

BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

 

 

 

BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

 A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.

Judges - Independence, Impartiality, Integrity, Proprietary, Equality, Competence and Diligence > These are the values that judges must have and/or promote - These are the values set out in The Bangalore Principles of Judicial Conduct - and for each VALUE, the principle is laid out, and several 'Applications' are also there for guidance..

See related posts:-

4 Ogos - 'krisis badan kehakiman' jika YAA Tan Sri Dato’ Seri Md Raus kekal 'Chief Justice' untuk 3 tahun?

Chief Justice, even after retirement, for 3 more years? Wrong or Right? -relevant Constituion provisions considered

UN Basic Principles on the Independence of the Judiciary - Chief Justice and imminent 'judicial crisis'?

Below, I consider some of words/phrases and sentences from the Bangalore principles, but do read the Bangalore Principles laid out in full below...

INDEPENDENCE

'...free of any extraneous influences, inducements, ..., direct or indirect, from any quarter or for any reason....'

Well, is not an extension of 3 years, beyond the end of term of office an 'inducement' - Who provided this inducement 'the now former Chief Justice of the Federal Court...?

Well, is not a being able to hold the position of 'Chief Justice of the Federal Court, beyond 3/8/2017 for another THREE(3) years an "inducement" - Who provided this inducement - Prime Minister Najib?

Who are some of these 'any quarter' - Well, the Bangalore principle not just talk about the executive, Legislature but also " a judge shall be independent of judicial colleagues'

A judge may be INDEPENDENT - but that is unsufficient, because what matters also is the perception of others...

 

- 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.

- 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.

Note that this DUTY is on the Judge personally - The appointments were made by others....so, now the question is what will Tan Sri Raus do. 

Accept because the appointment is made by the YDP Agung? He has the option to REFUSE the appointment - and that is what he must do, in my opinion....

IMPARTIALITY 

" 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.

INTEGRITY

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.

 

PROPRIETY

 

"...avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality."

 EQUALITY

'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.

COMPETENCE AND DILIGENCE
 
A judge shall not engage in conduct incompatible with the diligent discharge of judicial duties.

Now, here Tan Sri Raus is not only a JUDGE - but he is also the Head of the Judiciary - and this appointment' as an additional judge for a 3 year term beyond the end of his term, and the 'appointment' to be the Chief Justice of the Federal Court for this added 3 years is unprecedented in Malaysia. 

A lot is on his shoulders - and what he will do really matters....it will have a very serious impact on people's perception...

To ensure the INDEPENDENCE OF THE JUDICIARY, tenure must be fixed and definite, and that should be the Retirement Age of 66. Any extension of term of office, more so when it is given to some, but not all Judges impacts this 'Independence'...

As it is, there is already much concern with transfers and elevation of Judges - there is a call that these powers be made more 'independent'...

Our Federal Constitution, in my opinion, still have flaws and 'gaps' - and there needs to be necessary amendments to ensure that judges and the judiciary are "independent', and cannot be influenced directly and/or indirectly by any persons...especially those with the power to grant extensions to tenure... {UN principles clearly state 'mandatory' retirement - in other words, a fixed term in office ...known from the date of appointment.

One thing that must be looked into is increasing the 'PENSIONS' of Judges. While a person is judge, he gets a reasonably high salary...and further financial and money's worth allowances and benefits - which may be even equivalent or more than the salary. But, when a judge retires, there is no guarantee that his pension will be 50% of his salary (which, even if 50%, will be really just about 25% or less of his total income(salary plus allowance plus benefits). The formula that calculates judge's pension considers the number of years a judge is on the bench... PERSONALLY, I am of the opinion that judges pension should be equivalent to last drawn salary(less allowances/benefits).

'COOLING OFF PERIOD' - Judges, when they retire, should not be taking up any other paid positions - be it, as a Consultant in some Law Firm, Director in some Corporation, Position in Government or government bodies, etc... If he/she does, the question may arise as to 'why' - was it a 'benefit' for services previously rendered? It is something to think about...

AG Apandi Ali - his sudden resignation as a Federal Court Judge at 65, and the taking up of the position of AG should be a matter of concern.

Now, this extension of term in Office of the Chief Justice of the Federal Court, and also the President of the Court of Appeal is also a matter of concern...

Many are considering legal extension, if the Chief Justice continues in office beyond 3rd August, but will the Malaysian Judiciary be seen as 'Independent' in dealing with these cases? Furthermore, judges will 'know' that their decision will impact on their own Head/s of the Judiciary, for the nezt 3/2 years. Will a judgment result in declaring the appointments null and void - forcing the Chief Justice of the Federal Court and the President of the Court of Appeal, having to leave their office, and the declaration naturally that all court judgments which they were involved in being declared null and void? It would also mean all decision made with regard to transfers and/or elevations and/or corams of Court of Appeal/Federal Court being void ab initio.A big mess indeed. Further, in the minds of judges presiding over these cases will be the concern of their own future - transfers, elevations, etc - although they should not be bothered about this and act judiciously...But judges, are also human.

Frankly for the strengthening of the independence of the Judiciary - we should be considering may be same wages/allowances/benefits irrespective of whether one is a High Court Judge, Court of Appeal Judge, Federal Court Judge or even the Chief Justice of the Federal Court. Now elevation results in wage/remuneration increasing. 

After this, we really must look at how we can strengthen and ensure the INDEPENDENCE of the Malaysian Judiciary. One consideration would be the 'Security of Tenure' - it must be fixed - the mandatory retirement age. No more possibilities of extensions of term of office, that is accorded to some but not all. Increasing retirement age must be considered - 70 may be a more reasonable age. Alternatively, we could consider 'life tenure'. 

The YDP Agung has appointed, on the advice of the previous Chief Justice of the Federal Court, and Prime Minister Najib - so, the ball is now in the court of the current Chief Justice of the Federal Court and the President of the Court of Appeal. A lot of unnecessary pressure on these 2 men, and what they do now will impact on the future of the Malaysian Judiciary. A rejection of the 'extension' would also serve as positive example to all sitting judges - the message is that values and principles matters. 

 

 

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.”