[20 June 2018]

What happens when judges, bending like reeds in the wind, carry out the biddings of their political masters?

Something extraordinary has to be done. Bad judges ought to be publicly impeached.

Terminology

Here are some useful terms:

(1).  By ‘bad’ is meant ‘corrupt’.

A judge’s decision must not only be ‘legally right’; the process of his reasoning must be honest and untainted by personal considerations.

The outcome of his decision must have two effects: it must uphold the rule of law; and in the end, do justice. The one is quite useless without the other.

A ‘corrupt judge’ is not merely one who sells his decisions for some gain, or one who is ‘induced’ to act in a certain way. The definition of ‘corruption’ is far wider – for there are many levels of ‘corruption’.

There are judges who subvert justice for their promotion,  post-retirement benefits or royal titles.

Where a judge uses his legal knowledge to take a path he knows leads to injustice – even if his analysis of the law is correct – he is a ‘bad judge’.

Where it is open to him to take a path that would uphold of rule of law, but he departs from it, that is the most subtle method of corruption. It is also the most poisonous one. [And this is an excellent example of ‘misfeasance’, a word we shall come to in a minute].

Such a judge has no business being in the judiciary.

(2).  ‘Misfeasance’ means improper or unlawful execution of an otherwise lawful act.

(3).  To ‘impeach’ means to proceed against a public official (here, a judge) for a crime, or for misfeasance.

Why not just tribunalise a corrupt judge?

After all, the Constitution provides for it: Article 125(3).

The problem with its application are these: –

A bad judge will be judged by his previous or current colleagues.

They were the gatekeepers to his entry.

Their ‘collegiate attitude’ [“We will not show up – or injure – our brethren”] has not so far proven effective, nor has it been used effectively.

Can the Judiciary assure us that not a single judge has ever been guilty of corruption?

It can’t, can it?

Can Parliament haul up corrupt judges and punish them?  

The short answer, is, ‘yes’. The Federal Constitution provides for it in Article 127.

All that needs to be done is for 25% of the members of either House [56 out 222 members of Dewan Rakyat, or 18 Senators out of 70 members of the Dewan Negara] to notify either house of the need to impeach a judge.

Thereafter a motion has to be moved in one house of Parliament to impeach the judge.

History, and Latimer

Impeachment has its roots in England.

The first recorded case is in 1376.  William Latimer was not a judge.  He was an advisor to the King—and so, he was vastly more powerful.

Latimer was accused of corruption and bribery.

The charges were proven in parliament.

Removed from the royal household, he was fined and imprisoned.

In England, all subjects were liable to be impeached.  When they were convicted, the Upper House (the House of Lords), could impose any appropriate penalty.

Impeachment processes in the US & the UK

When the US Constitution was drafted, its founding fathers brought English impeachment procedures into it.

There, the House of Representatives  formulated written charges.

A copy was given to the accused.

The Senate sat as a court, heard evidence, and pronounced judgment.

In England, a simple majority in the House of Lords was sufficient to convict.

In the US, the votes of at least two–thirds  ‘of members present’ is necessary.

In Malaysia no such burden is stated in the Federal Constitution.

If anything it is far easier for judges to be impeached in Malaysia than in the US. And they can be impeached either in the Dewan Rakyat or the Dewan Negara.

In principle, a person so impeached was still liable for punishment in the courts.¹Burnell, 1972)

What are impeachable offences? 

Old English common law cases cite ‘treason, unfaithfulness to the law of the land, corruption in office, or other high crimes.’

The offence must be ‘injurious to society itself’.²Hamilton, 1948

It requires a ‘wilful intent,’  or a ‘reckless disregard of duty’.³Burnell

Judges who had violated their oath of office or had exhibited reprehensible behaviour, were successfully impeached: for these men had ‘violated public trust.’

The oath that a Judge takes on his appointment

He swears: ‘I do solemnly swear that I will  faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.’

Any judge who departs from this high benchmark must be impeached.

A judge is under no obligation to protect any particular political alliance, race, or creed. 

Concerns about inviolability of the Judiciary

When it is suggested that a judge be hauled-up before Parliament, there is much gnashing of teeth.

‘How can one independent branch of a nation drag another into its den, to punish it?

The Government or Parliament cannot tell the Judiciary what to do. 

It is against the Rule of Law.’

So the arguments went.

In reality, in Malaysia, parliament and the Government are fused, but that does not mean there is no separation of powers: See How do Rule of Law and Separation of Powers Work?

A judge and the judiciary are inviolable only as long as they uphold the rule of law.

The moment a judge departs from that duty to ‘bear true faith and allegiance to Malaysia,’  or does not ‘preserve, protect and defend its Constitution’ or the Rule of Law, he cannot be protected.

He cannot raise the Shield of Inviolability or the Separation of Powers.

He or she is fair game.

Is impeachment nothing more than a muckrake?

Since 1830, critics have argued that an impeachment procedure is nothing more than a muckrake.  It is political revenge.  They complain that it is a ‘judicial function’ exercised by ‘a legislative body’; and that it is ‘the heaviest piece of artillery in the [Parliamentary] arsenal, but because it is so heavy, it is unfit for ordinary use’.⁴Bryce (1942)

Despite established procedures that parliamentarians had widely regarded as being proper, there were lingering fears of a ‘constitutional conflict’.⁵Roberts-Wray

Latimer House Guidelines are born

And so, from 1998 to 2003, representatives of Commonwealth deliberated upon these concerns. They agreed to abide by a set of principles of impeachment that would uphold the Rule of Law, and observe the doctrine of the separation of Powers.  They called it the ‘Latimer House Guidelines’: (Sharma, 2015).

There were fears a judge may not be judged by an independent, and impartial tribunal. Therefore the International Bar Association’s Minimum Standards recommended that impeachment be only carried out if a ‘judicial commission’ endorsed it.

In Malaysia such a Commission—the Judicial Appointments Commission (JAC) — is controlled by current and former Federal Court judges.  If these people fall under negative influence, and refuse to endorse impeachment, what then?

Then the Commission is no good.  And their endorsement is irrelevant.  And there is nothing in the Judicial Appointments Commission Act 2009 that bars any such impeachment.

We do not have to wait for their‘endorsement’ to do what is good.

If a person is drowning, you don’t need his brother’s endorsement to save him.  You jump in,  pull him out, and restore his life.

This is what has to be done.

Parliamentary control over judges only allowed if independent body is appointed

The UN Special Rapporteur argues that parliamentary control over judges may only be allowed if an independent body is appointed.  That would ensure the judges receive a fair trial.⁶Despouy, UN, 2009

That is a workable idea. To that we now turn.

Recommended procedure

Since public complaints over the judiciary have increased, there is no time like the present to invoke this remedy.  It is there in the Constitution. It is time we woke it up. Having studied how other countries have dealt with it, we can enact similar—and entirely fair — rules, to carry out the intent in Article 127.

If so, how would the nation go about it?

Here are some broad suggestions:-

Establish independent body acting under Latimer House Guidelines

First, parliament must establish an independent body.  It must act under the Latimer House Guidelines.  This can be authorised by an Act of Parliament.  It could be called the ‘Judicial Council’ (‘Council’).  Canada has such a Council.

This will be opposed on grounds that, ‘We already have the Judicial Appointments Commission Act 2009, and the Judges’ Code of Ethics 2009—so why reinvent the wheel?’

The answer is: look at the judiciary now.  Do you think these laws made for a strong and excellent  judiciary, threw out bad judges, brought in brilliant ones, and kept a tight ship?

Well?

Judges need to answer to an independent, fair, disciplinary body — something over which the judiciary has no control. Like the Disciplinary Board for lawyers. The well tested procedure in Part VII of the Legal Profession Act 1976  is easy to apply.

Composition of Independent Body

The Council must act in the national interest. So the Council must be represented by members from different fields.  Members must demonstrate minimum character traits: they must have a record of unquestioned loyalty to the Constitution, selfless devotion to the nation, a well-trained mind, recognised ability and mature experience.  They should above all, be fearlessly independent — so fair and intrepid that we may entrust the fate of the judiciary and the lives of our judges, into their hands.

The Council will carry out a mixture of functions: investigations, prosecutions, and perform work related to judicial and parliamentary issues.

They should comprise a retired senior MACC or police officer (to gather evidence), a retired judge (to ensure due process), senior legal practitioners from the different Bars, a retired senior member of the AG’s Chambers (to formulate charges and act as prosecutor), one civilian member (a people’s representative), and two MPs from Dewan Rakyat (to formulate papers, and communicate with parliament).

The Process

An independent, fair and uncomplicated process needs to be established.  Otherwise a Government unhappy with an honest judiciary may victimise judges.

The Complaint

Second, a complaint must be brought into Parliament.  It can be moved by a citizen, or raised by an  MP.  The charges, as a rule, must be made under oath—so as to protect the judges from frivolous complaints.  These charges must then be shown to Parliament, which will then refer to the complaint to the Council.

Investigation of Complaint

Third: the Council conducts a preliminary investigation into the complaint.  If, after the investigations, it determines that an impeachment is warranted, it reports this to Parliament.  The Council then asks Parliament for formal permission to proceed with the impeachment process.

Parliamentary Authorisation

Fourth: the Council files its report to Parliament. A debate takes place on it. A vote is taken.  It should be on a simple majority.

Public Trial

Fifth, if Parliament approves the recommendation to impeach, then a public trial is held.  It can be held in Parliament or elsewhere, so long as the location and the processes are independent. It can be televised. The accused and the accusers are represented by lawyers. They appear before the Council.  During trial— the Council members— or lawyers appointed by it, examines the charges, documents and witnesses. All affected parties have a right to examine and cross–examine witnesses; and at the end, file arguments.  Since impeachment proceedings are criminal in nature, they must be governed by rules applicable to criminal trials.  Evidence must satisfy the criminal standard.

Council lays its Report before Parliament

Sixth, at the close of the trial, and having heard legal representations, the Council reports its findings to Parliament.

Vote to Impeachment – simple majority

The MPs read the Council’s Report. Whether the judge should be impeached is then put to vote.  If a simple majority of votes is not attained, the judge is acquitted, and once acquitted he cannot be charged for the same crime elsewhere.

Post-conviction status

Once convicted, the judge automatically loses his or her office.  The judge is disqualified from holding any office of honour, trust, or profit, in the Federal Government.  The power of pardon does not apply.  He cannot sit in any public listed company.

Judges can be charged separately in court

Outside of Parliament, the impeached person is also liable to be charged, tried, and punished in the courts, like any other offender for any other offences.

Universal Application

Think of this—although the Constitution does not say this, properly understood, this procedure can be used on sitting Ministers, Senators and Parliamentarians too!

An example

In 1912, the US House of Representatives impeached Robert Wodrow Archbald, a US Circuit Judge.

Archbald secured business favours from litigating parties.

He asked for – and received – credit and other financial favours from parties in litigation before him.

He  accepted monies from members of the Bar.

He went on a trip abroad at the expense of a business magnate.

He was impeached.

One writer said he had ‘prostituted his high office’.⁷Reimann

And so…

That judges should never be servile to politicians was pointed out, more than 60 years ago by Felix Frankfurter J.

He warned that,

‘[T]he independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures’: [Dennis v. United States (1951)].

An ‘even-handed, unbiased and impartial judiciary is one of the pillars upon which our system of government rests’:  Ackerson v. Kentucky Judicial Retirement and Removal Commission (1991). 

Interest in parliamentary impeachment continues to grow.

It has been suggested that the judges must ‘constantly feel the need to watch their step’.⁸Burke Shartel

The Federal Constitution provides a ready-remedy to name, shame, and remove corrupt judges.

It is time we put the fear of God into the hearts of the wicked.

It is time we released the Kraken!

Note: the author expresses his gratitude to:

Ms KN Geetha

Ms Santhi Latha

Mr Anand Krishnan

Tan Sri Gnanalingam

Senior Federal Counsel, Narkunavathy Sundareson