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Thursday, January 26, 2012

Nothing to hide

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.


(First published in The Edge, 22nd January 2012)

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