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
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.”
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