Justice for judges, too

 

From Hafiz Hassan

As a society, we have every right to demand for honesty in a judge. It is exacting and absolute.

The standards of judicial behaviour, both on and off the Bench, are extremely high. For a judge to deviate from such standards of honesty – and impartiality – is to betray the trust reposed on him.

No excuse can condone such betrayal. A dishonest judge not only dishonours himself and disgraces his office, but jeopardises the integrity of the entire judicial system.

No one is above the law – judges included. It cannot be said that a judge will escape criminal liability because of his high office. In a civilised society, the law cannot be assumed to be leading to such disturbing results.

A judge of a superior court will not be immune from prosecution for criminal offences committed during the tenure of his office.

We can, therefore, agree with Zaid Ibrahim that judges are not immune from criminal prosecutions. The principle of “separation of powers” does not forbid the authorities from launching a probe against sitting judges.

However, can we not agree with what the Supreme Court of India in 2017 in the case of Kamini Jaiswal versus Union of India and Another said, reiterating its judgment in 1991? In that case, the apex court of India said:

“There is no question of registering any first information report (FIR) against any sitting Judge of the High Court or of this Court – that is, the Supreme Court – as it is not permissible as per the law laid down by a Constitution Bench of 5 Honourable Judges of this Court in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655.

“(In that case), this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the (investigation agency) if given publicity, will have a far-reaching effect on the Judge and the litigant public.

“The need, therefore, is of judicious use of action taken under (an incriminating legislation). There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Honourable Chief Justice of India (CJI) and, in case there is an allegation against the CJI, the decision has to be taken by the Honourable President, in accordance with the procedure prescribed in the said decision.

“(The) independence of judiciary cannot be left at the mercy of the (investigation agency). There cannot be any FIR … without permission of the Chief Justice of the concerned court.

“Otherwise, on unfounded allegations, any honest Judge to the core, can be defamed, and reputation can be jeopardised. No judge can be held responsible (in that way).”

Care should be taken that honest and fearless judges are not harassed. They should be protected.

The entire judicial system will unnecessarily be brought into disrepute for no good cause whatsoever. It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it independently and freely, without favour and without fear.

This is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.

Why the consultation with the Chief Justice?

It is because the Chief Justice is a “participatory functionary” in the matter of appointment of judges of the superior courts; the Chief Justice is to be consulted by the Yang Di-Pertuan Agong in the appointment of these judges.

The Chief Justice, being the head of the judiciary, is concerned with the integrity and impartiality of the judiciary.

It, therefore, passes comprehension how investigation has been opened after reports were lodged with MACC.

Has the Chief Justice of Malaysia been consulted?

Justice is for judges, too. It must not only be done, but must be seen to be done. - FMT

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.