A judicial code of ethics: regulating judges and restoring public confidence in Malaysia

Abstract

Codification of judicial ethics is taking an increasingly prominent place in the working of the judiciary. It has been observed that ‘[o]ne of the means whereby the links between independence and impartiality can be articulated is in the setting of minimum universal standards to protect judicial independence and thereby preserve judicial impartiality’. While there is no uniformity in the form and content of such judicial codes of conduct, there is at least some commonality in that they tend to prescribe standards of appropriate judicial behaviour while also asserting some features guaranteeing judicial independence. Broadly speaking, judicial codes can serve multiple objectives. Here, we identify four of them. First, a judicial code may serve as rules for a self-regulatory mechanism to ensure that judges comprehend their duties and act ethically (eg rules against conflict of interests and for the avoidance of corrupt practices) (‘self-regulatory function’). Second, a judicial code may serve as a bulwark for the judiciary to assert its independence against the other branches of government (‘assertive function’). Third, a judicial code may serve to communicate to the public the rules of proper conduct that it can and should expect from the judiciary. In this regard, such a code serves an important purpose of empowering the public and enhancing its confidence in the judiciary (‘public confidence function’). Fourth, a judicial code may be used as a way for the rest of government to control judicial conduct (‘governmental control function’). These functions are likely to overlap, although each targets a different audience and thus structures a different conversation. In its self-regulatory function, a code’s main target audience is judges. It provides them with a written basis for asserting peer pressure or even internal sanctions on one another. In its assertive function, a code provides judges with a written basis for objecting to real and/or perceived interference and incursions into their independent and impartial conduct of the administration of justice. In its public confidence function, a code provides the framework for the relationship between the judiciary and the public, communicating to the public the type and scope of proper judicial conduct. It thus plays an educative role and also provides the public with a potential basis for requiring compliance by the judiciary. Lastly, a judicial code for governmental control serves as a directive to the judiciary and could be seen as effectively subordinating judicial power to the other branches of government. This last objective must be distinguished from the other three because it has the greatest potential to interfere with judicial independence. The type of function that a judicial code of conduct is envisaged to serve within a jurisdiction reflects the values that underpin the judicial system. As Devlin and Dodek point out in the Introduction, the values of the judicial system serve as a foundation for the entire judicial edifice. Employing the regulatory pyramid as proposed by Devlin and Dodek, judicial codes of conduct are part of the processes through which the judiciary is maintained, channelled or restrained. Codes of conduct give form to the core values of the judicial system. While they are not strictly speaking institutional, since not all judicial codes establish bureaucratic forms to address breaches, codes of conduct are crucial in that they help to institutionalize good practices that advance the values of the judicial system. Judicial codes that are most obviously process oriented are those that serve the self-regulatory, assertive and governmental control functions. Interestingly, the public confidence function is oriented towards another wall of the regulatory pyramid, which are the outcomes. This chapter examines the use and disuse of judicial codes of conduct by investigating the curious case of Malaysia. Malaysia first prescribed a Judges’ Code of Ethics in 1994, and then replaced it in 2009 with a more extensive code which established a procedure for complaints and investigation beyond the previous procedure. The codes primarily served the objectives of self-regulation and in restoring public confidence. However, because the codes were passed by Parliament in the wake of incidents involving executive incursions and charges of corruption, it is arguable that these codes also serve the purpose of governmental control of the judiciary. In studying the establishment of a judicial code of ethics in Malaysia, this chapter examines the functions codes of ethics can and do have within the country’s broader legal, political and social context. It further analyses the adoption and use of codes of ethics in Malaysia using the regulatory pyramid proposed by the editors. Specifically, it considers the values that are supposedly underpinned by the codes, the role that the codes has played in maintaining the judiciary, and the desired outcomes.