Like
many others, I believe that the move by the Chief Justice to have judges
declare their assets should be lauded. As was emphasised in the speech he
delivered recently at the opening of the legal year, the integrity of the
judicial process is of paramount importance to the administration of justice.
Having judges declare their assets is a key step in achieving that goal. Not
only will it allow for some measure of scrutiny, the willingness of judges to
disclose their net worth will signal to all Malaysians that they have nothing
to hide.
The
Chief Justice must be credited for having had the moral courage to acknowledge
a need on the part of the Judiciary to directly address concerns that corrupt
practices may possibly have infiltrated into the institution. It would have
been much easier for the Chief Justice to simply ignore the issue, or deal with
it behind closed doors. Many a judge may have said it would be better to handle
such matters out of sight for the fact that it would not lead to any untoward
impression of the institution.
As
effective as this latter approach may have been, it would not have gone very
far in addressing public concerns. Though it pains me to say this, I do not
think there are many lawyers and litigants who believe that the system of
justice is free from corruption. While
this may be nothing more than a perception it is no less damaging; a system in
which the public has no confidence is a system that does not work.
I am
heartened that the Chief Justice recognises that he must deal with the matter
and, to that end, embrace the more challenging route of promoting transparency
and accountability amongst his judges. Implicit in his approach is an
understanding that the well being of the institution, and the nation, cannot be
sacrificed for the sake of the few rotten apples that may be in the barrel.
The
Chief Justice says that the Judiciary will work with the Malaysian Anti-Corruption
Commission on developing the framework of disclosure. This makes sense
considering the function of the MACC and the value of the collaboration must be
acknowledged. It may however be prudent
to note that public perceptions of the MACC, in particular its seeming
political bias, may undermine the value of the initiative if not handled. It is
therefore essential for the Chief Justice to make clear that while the MACC may
offer advice on how best to articulate the aims of the Chief Justice in this
regard, it will not have the final say.
It
would also be useful for the Chief Justice to engage with the Malaysian Bar and
Transparency International on the matter. A consultative approach will go a
long way in convincing Malaysians that he means business. Malaysians are after all the beneficiaries of
the system of justice and they ought, through interaction with the relevant
civil society bodies, be treated as stakeholders. The Bar is well placed to
highlight aspects of the process that may shed light on corrupt practices and
how best to deal with them. Similarly, the resources and experience that TI can
bring to bear will be invaluable in defining the disclosure framework.
The
Chief Justice has yet to make clear his vision of the disclosure framework. At
the risk of stating the obvious, it is crucial that consideration be given to
the degrees of disclosure required as well as the period of disclosure. Where
the former is concerned, Judges ought be made to disclose assets in their own
names as well as in the names of their spouses and children. They should also
be made to declare their interest in companies, not only for their shareholding
amounting to assets but for the fact that assets may be parked under asset
holding companies, within jurisdiction or elsewhere. They should be made to disclose their assets
in the most comprehensive manner possible. In this regard, the disclosure
obligations imposed on members of the Competition Commission under the
Competitions Commission Act 2010 is a useful reference point.
Consideration
must also be given to the question of whether the declaration of assets ought
be made public. I believe it should if the aim is to foster public
confidence. Such a stand is not
unprecedented, declarations of assets of the judges of the Indian superior
courts are carried on the website of the Supreme Court.
As
for the period of disclosure, it would be prudent to require disclosure of
assets by Judges as at the time when they were elevated to the bench, or
appointed as Judicial Commissioners.
They ought be made to then declare their assets for each year they have
served as a Judge and continue to do so until their retirement. It would be
counterproductive to only require disclosure of assets prospectively if the aim
is to weed out errant judges.
It will
also be necessary to consider how the vetting process is to work. I presume
that the MACC will be vetting declarations. The question is whether the MACC is
to vet disclosures only if allegations are made against a judge, or whether the
vetting is done as a matter of course each and every year. I believe that the
latter approach is the better one for it promoting the objective of the
exercise. This approach will also serve to deter errant conduct.
Once
again I congratulate the Chief Justice on the initiative. My best wishes to all
for the lunar New Year.
MIS
(First published in The Edge, 22nd January 2012)
