The Chief Justice, Tun Eusoff Chin, due to retire in mid-2000, has
ordered the 3,700 lower court judges and others to be "trustworthy, fast
and efficient" with the public. A 20-point "code of ethics" is drawn up
for their guidance. Good moral conduct is a requisite for the courts,
which the code insists, is independent. They should steer clear of a
hint of scandal, not attend private functions in the company of those
they have to deal with in the course of their work. They should reveal
official secrets only to those entitled to it. This code, he insists,
is additional to the General Orders civil servnts are subject to.
Judges and staff should possess "universal values like being
trustworthy, responsible, honest, diligent, clean and disciplined" as
the code requires them to. This code follows a code of ethics for High
Court, Court of Appeal and Federal Court judges in 1994 and "enshrined
in the Federal Constitution". The lower court judges, he warned, should
carry out duties entrusted to them. He implied they have strayed from
their duties and moved into ways that emphasise creature comforts at the
expense of justice. "I am worried," he said, "we might fail in carrying
out the duties and responsibilities entrusted to us."

The Chief Justice is right. His obvious discomfiture during the
recently concluded Commonwealth Law Conference came up for sharp
criticism among the delegates for reasons he enumerated eloquently to
the judicial officers but not followed in his courts. The visiting
jurists and delegates from the Commonwealth, especially careful to
maintain the independence of the judiciary in their countries, kept a
discreet profile when the Malaysian judiciary came up for attack, but in
private conversations did not mince their words. The Chief Justice has
broken so many points of the judicial code of ethics that his talk of
preserving judicial independence could only be discussed within the
adage of "Do As I Say, Not As I Do". His friendship with the prominent
lawyer, Dato' V.K. Lingam, so close that they go on holidays together,
allows the lawyer full run of the court system, often enabling him to
get the judgements he wants. Mr Raphael Pura, the Asian Wall Street
Journal reporter here, filed an amended statement of claim in a libel
action against him in which he alleged the holiday trips the Chief
Justice took with Dato' Lingam, and how Dato' Lingam, in one case
involving this writer, wrote the judgement for the High Court judge
hearing the libel case. Mr Pura has promised proof of his allegations,
including the judgement with the lawyer's corrections. But Mr Justice
R.K. Nathan, hearing the action, refused leave to amend the pleadings, a
decision that defies precedent and on appeal to the Court of Appeal.
Neither Tun Eusoff or Mr Justice Mokhtar Sidin, now of the Court of
Appeal but the High Court judge in the action, reacted. They should
have, in decency, stepped down in the interim, or even resigned
immediately to preserve the judicial independence the Chief Justice so
wants the lower court judges to maintain. The Chief Justice also broke
another one point in the code of ethics -- that judgements should not be
unduly delayed. The Court of Appeal has decided that judgements must be
delivered in six months, but in the case involving Dato' Lingam and the
judge, the Federal Court is now 18 months overdue in delivering
judgement. The Chief Justice forgets that judges live in glass bowls,
their conduct under constant scrutiny.

The proforma defence Malaysian judges and judicial functionaries
made at the Commonwealth Law Conference therefore was taken by the
delegates with a hefty pinch of salt. In conferences like these, the
speeches made, however lofty the message, is brought down to earth by
the local delegates. No lawyer worth his salt, except perhaps Dato'
V.K. Lingam, would accept that Malaysian judiciary is as solid as Tun
Eusoff insists it is. It raises questions and doubts about the conduct
of judges and the judiciary in the administration of justice in
Malaysia. The test of an impartial, independent judiciary is the free
acceptance by litigants on the judgement the judges deliver. Litigants,
especially if the lawyer on the other side is Dato' V.K. Lingam, worry
if they would get a fair deal, as they would if Tun Eusoff or Mr Justice
Mokhtar is in the coram. Too many companies write into their contracts
that disputes are settled by arbitration in third countries. The
judiciary would, in the past, have heard these disputes, but the
commercial parties cannot now be sure the disputes would be heard in
fairness and impartialiaty. Tun Eusoff's partiality for the company of
Dato' Lingam has damaged to an unacceptable degree the vaunted pride
Malaysians had in their judiciary. But this cannot, surely, be an
isolated instance. Are there other lawyers and other judges similarly
places? There may not be. But the doubts remain. The rot began when
the Lord President (as the Chief Justice was then known), Tun Salleh
Abas, was drummed out of his own court in an action in which he was
denied justice. Tun Eusoff, whose rose rapidly to Chief Justice after
the Tun Salleh sacking, could have contained it. He did not. He makes
speeches exhorting the judiciary to dispense justice without fear or
favour. But he does not react at the allegations swirling around the
judiciary. The feeling that a few high profile judges aligned to him
get preferential treatment in hearing cases, and the sidelining of more
seasoned judges -- in the High Court, the Court of Appeal and the
Federal Court -- is a scandal. If this is allowed to continue, and the
Chief Justice makes no attempt to stop it, he would have retired justice
before he retired.

M.G.G. Pillai
pillai@mgg.pc.my