The very important issue over the independence of the judiciary was recently highlighted in the media, commencing with an article in the Star on June 5, 'Questions over ex-CJ's new job'.

This was followed by a letter by Skrine, 'Setting the record straight on ex-CJ' which appeared in the Star on June 7. On June 8, the front page of the Sunday Mail read: 'Ex-CJ demands apology, Lawyers want withdrawal of daily's controversial article on Tun Mohamed Dzaiddin'.

It was a sad day for freedom of speech, expression and opinion when former chief justice Mohamed Dzaiddin Abdullah, the first practitioner from the Bar to be appointed chief justice, made the said demands (if correctly reported, of course).

On June 10, malaysiakini carried a report on the Star 's retraction of the article disputed by Skrine.

One June 6, the Bar Council did make a statement on this matter, wherein it stated:

"...when a judge retires and soon after joins a law firm, an area of serious concern that immediately presents itself is the perception that an offer to do so might have been made to the judge before his retirement, and discussions or negotiations on the same might have started or taken place while the judge was still serving on the bench; particularly if there is a short time lapse between the judge's retirement and his joining the firm. This in turn gives rise to the question whether the independence of the judge could have in any way been influenced or compromised by the making of such an offer or the holding of such a discussion..."

The Bar Council went on to say that "In protection of that principle (independence of the judiciary), and after examining the experience of other jurisdictions, the Bar Council is of the view that there ought to be a lapse of a suitable period of time (which is often called a "cooling off" period) after a judge's retirement before he may be permitted to practise law at the Bar..".

Although the Star in their June 5 report did end with the words: "all eyes will therefore be on the Bar Council meeting tomorrow, where the response as promised by Kuthubul [the president of the Bar], is forthcoming.", the Star failed to carry the Bar Council statement.

In fact, I believe the Star which courageously first highlighted this matter of great concern for all Malaysians, did not thereafter carry any other report or letter on this issue.

There were also comments and opinions expressed by many others including Minister in the Prime Minister's Department Dr Rais Yatim, Karpal Singh and Lim Kit Siang .

We have not yet heard the views of the United Nations Special Rapporteur of the Commission of Human Rights for the Independence of Judges and Lawyers, which I believe, would be of interest.

There may be no written law, regulations, codes, rules or even possibly universal standards or principles that govern the conduct of judges after they leave their office as judges, but this does not mean that this is a matter that should not be discussed and considered with a view of strengthening the independence of the judiciary.

From the comments in the media, including malaysiakini , it is evident that the question of perception, as well as the fact of the independence of the judiciary, are important matters that requires further deliberations. In fact the Judges Code of Ethics, that amongst others govern their conduct both on and off the bench, is a clear indication that perception has always been an major concern.

The importance of public confidence in a impartial and independent judiciary, was also the subject of recent comment by Perak Sultan Raja Azlan Shah, who was the head of the judiciary from 1982 to 1984, who had in this to say ( New Straits Times, Feb 25, 2003):

"Judges, public symbols of justice and freedom, are duty-bound to uphold the integrity and the credibility of the court. It is important that judges dispense justice without fear or favour, free of political ties and the influence of self-interested parties. Only when judges were fearless in implementing the principles of justice according to the rule of law and supremacy of the constitution, would the public have confidence in the courts."

It is my opinion that this perception of judges must outlast their tenure as judges - as they will always be public personalities. When it comes to the chief justice, the head of the judiciary, the third branch of a democratic government, the behaviour and conduct whilst in office and after leaving office is all the more of greater concern.

According to our Federal Constitution, the CJ has a role in the appointment of judges [Art.122B(2)], determining the order of precedence of judges [Art. 122B(6)] and the transfer of judges [Art. 122C], and therefore should be of more concern to us in comparison to any judge.

Some members of the Malaysian public also believe, rightly or wrongly, that the CJ being the head of the judiciary, has a role to play in the determining which judge will hear which case. Some also believe, rightly or wrongly, that the CJ has a role in empaneling the quorum of judges in the Federal Court. After the recent Sabah High Court case, it has also come to light that CJs may give instructions (or advice) to judges on the cases they are hearing.

All these are some of the reasons why when it comes to a past CJ, greater care and concern must be given to his/her conduct or association after he/she leaves office - and all this is to maintain not just fact of the independence but also the public perception of independence of the Malaysian judiciary.

To ensure this independence, certain constitutional safeguards have been put in place which includes security of tenure, salary/allowances and also pensions. Article 125(7) "The remuneration and other terms of office (including pension rights) of a judge of the Federal Court shall not be altered to his disadvantage after his appointment." This safeguard also extends to all judges of the High Court and also the Court of Appeal.

The specific inclusion of 'pension rights' seem to indicate that welfare of judges after retirement was also considered. Hence, the views that "judges need jobs after retirement", or that a "retired judge needs to eat too", are weakened in light of the fact that pensions are provided for as part of the safeguards in our constitution to ensure an independent judiciary.

If it is a question of lack of money, then what needs to be done is to ensure that the pensions of retired judges be increased reasonably so that he/she could maintain a standard of living that he/she has become used to without being driven to seek alternate employment.

If he/she needs to work, then maybe we must seriously consider amending the retirement age of judges from the present 65 to maybe 70 or more - for after all, it is sad to lose a still functioning judicious mind by reason of retirement.

In the New Straits Times on June 9, Dr Rais Yatim opined that "there is no need to have a law to govern professional conduct of retiring judges but a section could be included in the Judges Code of Ethics". In the same day Malay Mail reported that Dr Rais also mentioned that he hoped this code - currently being placed under review - would be fully drawn up by July 2003.

It is important that all Malaysians should get involved in this process of reviewing or amending this code of ethics for judges and not just leave it to certain quarters..

In my humble opinion, it is preferable that judges of the High Court, Court of Appeal and the Federal Court should not be employed in law firms, or be appointed as directors in companies, or be involved in any other profession or any other activities which may in any way raise adverse perceptions as to their independence whilst they were in office.

Even if they do chose to return to legal practice or get involved in commercial establishments, it is preferable that there be a reasonable "cooling-off" period, of at least 2-3 years, if not more.

Noting that there is going to be a review of the Judges Code of Ethics, civil society, NGOs, political parties and the public must now put in their comments and suggestions, for if not the opportunity to participate in this process that hopefully would reinforce the independence of the Malaysian judiciary will just pass us by.

Even though judges' conduct after leaving office has been a recent concern, other aspects important for ensuring of not only the fact but also the perception of the independence of the judiciary, should also deliberated on.

Karpal Singh, in his plenary address given at the 13th Commonwealth Law Conference 2003, was also of the view that "judges should not be bestowed any title by the government during their tenure of office or even after they retire to show transparency and to give full import and expression to this adage that justice mut not only be done but seen to be expressly and manifestly done. Public perception should be given full premium.".

Likewise, I wonder whether or not leaders of the Malaysian Bar should also not be bestowed or accept such titles, for after all, just as the independence of the judiciary is important, so too is the independence of the Malaysian Bar.