Can a judge dance?

Why not? Dancing is an expression of joy. A judge is human. Why should a judge be deprived of joy? Yet, whether a judge could dance publicly would depend on the occasion, wouldn’t it? Which side of the line did the CJ and the AG tread last week?

On 18 January 2018, the Sabah Law Society hosted a dinner in conjunction with the opening of the legal year. The East Malaysians have a long history of expressing happiness through dance. And so the guests were invited to a dance.

A video hit the social media the next day.

It showed the Chief Justice, a few other judges, and the Attorney General gyrating to a popular tune.

There was uproar.

The East Malaysians raised an incredulous brow at their brethren across the South China Sea: because all the uproar was in Peninsular Malaysia.

Critics here complained that it was improper for judges and the AG to dance in public; that it had detracted from judicial independence and dignity.

The detractors used words they had not for ages.

They said it was ‘a breach of the doctrine of Separation of Powers.’

Is it?

First, the song

The judges had danced to ‘Let’s Twist Again’.  It is an up-tempo dance track produced in 1961.  Kal Mann wrote the words. American rock ‘n roll singer Chubby Checker gave voice to it.  It was produced by the musician Dave Appell (remember ‘Knock Three times’? Appell produced it).

‘Let’s Twist Again’ became an instant international hit. It won the 1962 Grammy Award for Best Rock and Roll Recording.

The song has a timeless quality to it.

And celebrates a kind of dancing called ‘the Twist’. A writer describes it (you’d smile):

‘The dancers scarcely ever touch each other or move their feet.  [The arms move ] with the piston-like motions of baffled bird keepers fighting off a flock of attack blue jays.’1Denisoff, R. Serge and Romanowski, William D. (1991). Risky Business: Rock in Film p.111-12. Transaction

Can a judge do a twist in public?  What does the law say?

2006 Constitutional Amendment

It was only in 2006 that Parliament amended the Malaysian Federal Constitution to deal with judicial misconduct.  On the recommendation of the four of the most senior judges in the judiciary and the Prime Minister, the King is empowered to ‘prescribe’ a written ‘Judges’ Code’: [Article 125(3B), Federal Constitution].

The Code was only allowed to sanction judges; the Code could not be used to remove them. That could only be done by a tribunal set up by the King: [Article 125(3)].

The Code was finally established in 2009.  There are similar codes across the Commonwealth (e.g. in 2009, the UK judiciary produced a ‘Guide to Judicial Conduct’).

The similarity between our Code and the UK code is striking.

Where did these rules come from?

From the US, as it turns out.

On April 5, 1973 the top judges in the United States met.

They recommended a code of conduct for judges.

They called it the ‘Code of Judicial Conduct for United States Judges’.

All of these principles were imported into the Commonwealth judges’ codes.

Canon-4 of the US Code

The US Code has five sets of principles, called ‘canons’.  Four are irrelevant to this discussion: but Canon-4 is.

Canon-4 says,

‘A judge may engage in extrajudicial activities consistent with the obligations of judicial office.’

Malaysian Code

A similar set of words appear at paragraph 8 in the 2009 Malaysian Code.  It is entitled,

‘Minimising the risk of conflict with the judge’s judicial obligations while conducting his extra-judicial activities’.

Paragraph 8(1) states:

‘A judge shall ensure that his extra-judicial activities do not cast reasonable doubt on his capacity to act impartially as a judge; or interfere with the proper performance of his judicial duties.’

Start with these questions

Does dancing ‘cast a reasonable doubt’ on a ‘judge’s capacity to ‘act impartially’?

Does dancing ‘interfere with the proper performance’ of a judge’s ‘judicial duties’?

Well, let’s see.

What is ‘extra judicial conduct’? Can a judge blog?

The phrase ‘extra judicial’ points to the behaviour of the judge outside his court.

The American Code refers to ‘extra judicial conduct’ as being activities that are ‘law related’.

So a judge is allowed to participate in any activity touching on the law, the legal systems, and the administration of justice. He could speak at seminars.  He could address a group of students in a law school.

Some judges in the US run their own blog.2https://www.lawsitesblog.com/2013/04/a-quick-survey-of-blogs-written-by-judges.html

One judge actually wrote that the US Supreme Court’s rulings are irrelevant!3https://herculesandtheumpire.com/the-who-and-why-of-this-blog/.

[The air is chillier in the UK.  Judges were warned that ‘inappropriate blogging’ could result in disciplinary action].4http://www.legalcheek.com/2012/08/judges-threatened-with-disciplinary-action-for-blogging-about-their-day-job-even-if-they-do-so-anonymously/

What about social activities?

How far can a judge go in such circumstances?

Canon-4 has been widely – and consistently – applied in the United States to answer this question.

Judges are allowed to ‘reciprocate social amenities’.

They can entertain; or be entertained.

The California Judicial Ethics Committee states that,

‘‘Judges, like other members of society, must be able to extend common courtesies and social amenities to others, and be willing guests and willing hosts.’’ 5California Advisory Opinion 43 (1994); The California Judicial Ethics Committee. Cynthia Gray, ‘Key Issues in Judicial Ethics: ‘Judge’s attendance at Social Events etc’., State Judicial Institute, American Judicature Society

So what is ‘‘ordinary social hospitality’’?

It is a social event… which is so common among people in the judge’s community, that no reasonable person would believe [that any participant or organiser] would have obtained any advantage”.

Thus, judges could accept a free meal from a lawyer so long as it is not outlandish;6Utah Formal Advisory Opinion 98-1 attend a lawyer’s home at a social function;7Georgia Advisory Opinion 13 (1997); or attend a law firm’s holiday party which served drinks and hors d’oeuvres.8Wisconsin Advisory Opinion 98-10

Obviously, if a judge had accepted hospitality from a lawyer who was having a case before him, the judge would have violated the Code of judicial conduct,  because it ‘creates an appearance of impropriety’.

Examples of Judicial misconduct in a social context

The US annals have many examples of judicial misconduct. Here are some.

In New Jersey a judge had attended a luncheon.

This had been organised by both lawyers and insurance companies: the latter were parties in cases in the judge’s court. They paid for the luncheon bill.  The court suspended the judge. You can guess why. 9In the Matter of D’Auria, 334 A.2d 332 (1975), New Jersey Supreme Court

In California, a judge had attended a dinner hosted by the lawyer.  The lawyer wished to celebrate his victory in a civil case.

It happened that the judge had presided over the case. He had given a verdict in the lawyer’s client’s favour.  The appeal against the losing party was pending before an appellate court. The court sanctioned the judge.10Adams v. Commission on Judicial Performance, 897 P.2d 544 (1995), the California Supreme Court

What about socialising with non-lawyers?

The rules are the same.

In New Jersey, a convicted felon held a picnic.

He held it two days before his sentence was to begin.  Over 150 people attended it.  The judge was a guest. Yet newspaper accounts had interpreted the judge’s attendance as a ‘going-away party’.  The New Jersey Supreme Court publicly reprimanded the judge.11In the Matter of Blackman, 591 A.2d 1339 (1991)

In California a judge attended the premiere of a movie.

The movie had been the subject of a civil suit in the judge’s court. The plaintiff had sued the actress Kim Basinger for withdrawing from the plaintiff’s movie, ‘Boxing Helena’.  The plaintiff succeeded.  Basinger field an appeal.

Meanwhile, the movie was completed.

It was released with a different female lead.

The plaintiff held a premiere of the movie.

The judge was invited, and attended as a guest.

The media noted her attendance.

The Commission ruled that the judge’s attendance at the premiere contributed to an appearance of bias.

It was as if the judge was seen as joining in the plaintiff’s celebration of the movie’s release, and its legal victory. The judge was publicly admonished.12Public Admonishment of Chirlin (August 28, 1995)

Bar association functions and ‘judicial asphyxiation’

Canon-4B encourages judges to take part in activities of bar associations and other groups connected to the legal system.

The Rhode Island Supreme Court explains this:

‘Avoiding intellectual exchange among lawyers and academics may lead the judge to a form of mental asphyxiation that will diminish his or her effectiveness. A judge should not be isolated from the current of ideas abroad in his or her profession, or those that may be contributed by related disciplines.’ [In re Petition of Wiley, 671 A.2d 308 (1996)].

Thus, for example, American courts have allowed a judge to attend the Annual Dinner and Dance of the state Trial Lawyers Association  as a guest of the association.13In re Petition of Wiley, 671 A.2d 308 (1996

‘‘So, attending a dance party may not be improper, after all.

As long as the event had not been inappropriately extravagant, judges were allowed to attend a holiday reception given by an association of lawyers representing defendants in tort cases.14Arizona Advisory Opinion 95-13, Arizona Ethics Committee The event did not single out any one judge as a guest of honour.

The Arizona Ethics Committee concluded:

‘A reasonable and objective observer would not believe this association of lawyers has a special advantage in court, or that the judge favoured the association, merely because the judge consumed cocktails and appetisers. Any hint of impropriety was greatly diluted – if not negated – by the fact that many law firms and special interest lawyer groups sponsor similar receptions.’

In Maryland,‘‘interaction between the judiciary and bar associations [was] encouraged.”15Maryland Advisory Opinion 91 (1981)

Can a judge act in a play? Or parade as a model?

Judges are not allowed to raise funds.

However, a judge in Florida was allowed to participate as a model at a fashion show. The organisers gave the proceeds of the show to charity.16Florida Advisory Opinion 93-65

In Illinois, a judge was allowed to act in a play. The sponsoring organisation hoped to raise money from the production.  The judge’s name did not appear on any of the sponsor’s materials.  But he was identified as a member of the cast.17Illinois Advisory Opinion 95-23

What the critics say

Malaysian political party hacks, condemning the Jan 18 dance, urge that judges should have ‘behaved with propriety.’

They expect a judge to be ‘proper’.  What does that mean?  Take Churchill for instance. He said somewhat nebulously,

“A form of life and conduct – far more severe and restricted than that of ordinary people – is required from judges, and though unwritten, has been most strictly observed.”

An Indian judge, Justice V. K. Bist – who quotes Churchill – thought that that had to do with a fair and speedy despatch of cases.  He said nothing about dancing.18 Justice V. K. Bist, ‘Judicial behaviour and conduct in the present scenario’

To a man, the critics of last week seemed to demand that we –  as a nation – practise some form of middle eastern culture.

‘Dancing’, they imply, ‘is sinful’.

If they are right, then judges cannot dance.

They cannot crack a joke.

They cannot laugh.

They must be deadly serious.

They must behave like boring old men and women.

Can a judge be isolated from his community?

Taken to extremes, should a judge then be expected to behave – in public – like an aphid?

And is he expected to live in a cave, emerging only to hear evidence, or pronounce judgements?

A commentary to Canon 4A states:-

“The complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.’’ 19[1990 American Bar Association Model Code of Judicial Conduct; [Cynthia Gray, ‘Key Issues in Judicial Ethics: ibid

Western Culture or Eastern Culture?

You might say,“But that is the West, we are in the East. We should be more circumspect.’’

So I ask you: would anyone have minded if, at the Sabah Law Association Dinner, the AG and the Chief Justice had been invited to do the Zapin (which dance form, incidentally, originated in Southern Yemen – from the Hadhramaut region)?

Or the Joget ‘Serampang 12’?

Or the Inang?

Or the Chinese ethnic dance of the Han Community, dating back to the Zhou dynasty?

Or the ‘natya’ from the Indian Sub-continent?

You get the point.

Dancing has always been part of Asian culture

Take the Tarian Asli, for example. It is said to be the ‘original form’ of Malay dance.  It is a gentle dance that was highly developed in the Malay Archipelago.  Its history goes back hundreds of years.

Malays have always treated dance as an art form.

As have all Malaysians from different ethnic backgrounds.

Dancing is a spontaneous expression of joy.

Will all that joy breach the Separation of Powers?

What do you think?

Annual dinners between Bench and Bar are steeped in tradition: not western, but Malaysian

These functions are annual affairs.

If we force our judges to behave like automatons at such functions, they will oblige.

That is not good for the development of the law.

It prejudices the cordial relationship between the Bench and the Bar.

And it is not good for the nation.

We should cut our judges some slack

They are human too.

They have every right to be happy.

If we lose the capacity to have fun, we lose a crucial part of our humanity

So I remind these judicial critics of the last lines written by Kal Mann in ‘Let’s Twist Again’: –

“Come on, twist again,

like we did last summer,

Let’s twist again,

like we did last year!”

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