The latest controversy on the Malaysian Chief Justice's travel to New Zealand in 1994 and in particular the issue as to inconsistencies between what he said on how he met the lawyer concerned and the revelations in the Bowman papers must be viewed from a constitutional perspective over and above international and regional standards of judicial behaviour.

In 1994 the Malaysian Constitution was amended and a new clause 3A to Article 125 was provided. This clause enables the Yang diPertuan Agong on the recommendation of the Chief Justice, the President of the Court of Appeal and the Chief Judges of the High Courts after consulting the Prime Minister to prescribe in writing a Code of Ethics "which shall be observed by every judge of the Federal Court" (emphasis added).

Article 125 Clause 3 was also amended to provide for the removal of a judge of the Federal Court, inter alia, "on the ground of any breach of any provision of the Code of Ethics prescribed under Clause (3A)..."

In the same year the Agong prescribed a Code known as the Judges Code of Ethics 1994 which was gazetted on Dec 2, 1994. Rule 2(2) of this Code provides that a breach of any provision of the Code "may constitute a ground for removal of a judge from office" (emphasis added).

By Article 125 Clause 9 the Code of Ethics applies to all judges.

Rule 3(1) of the Code provides that a judge shall not:

(a) subordinate his judicial duties to his private interests;

(b) conduct himself in such manner as is likely to bring his private interests into conflict with his judicial duties;

(c) conduct himself in any manner likely to cause a reasonable suspicion that:

(i) he has allowed his private interests to come into conflict with this judicial duties so as to impair his usefulness as a judge; or

(ii) he has used his judicial position for his personal advantage;

(d) conduct himself dishonestly or in such manner as to bring the judiciary into disrepute or to bring discredit thereto;

(e) lack efficiency or industry;

(f) inordinately and without reasonable explanation delay in the disposal of cases, the delivery of decisions and the writing of grounds of judgement;

(g) refuse to obey a proper administrative order or refuse to comply with any statutory direction;

(h) absent himself from his court during office hours without reasonable excuse or without prior permission of the Chief Justice, the President of the Court of Appeal or the Chief Judge, as the case may be; and

(i) be a member of any political party or participate in any political activity.

In addressing the facts relating to the New Zealand travel, as they appear presently, to the provisions of the Code a pertinent question for determination is whether the Chief Justice has breached rule 3(1)(d) of the Code without for the time being addressing breaches of any other rules in the same Code.

The competent authority to determine this is a tribunal appointed by the Agong under Article 125(3) of the Constitution. The facts revealed in the Bowman papers contradict the facts as stated by the Chief Justice in material aspects. The Chief Justice to date has neither denied nor admitted the Bowman report.

However, whether he admits or denies there still will remain the question of confidence in his credibility and because he is also the Chief Justice whether his conduct has brought the Malaysian judiciary into disrepute and/or discredit in breach of rule 3(1)(d) of the Judge's Code of Ethics 1994.

Another fact which requires attention is the Federal Court's delay in delivering the decision and the grounds of judgement in the M.G.G. Pillai vs Vincent Tan appeal. The appeal was heard more than two and a half years ago. It was heard by the Chief Justice and the Chief Judges of the High Courts of Malaya and Borneo. To date a decision has not been given. Such delays strike at the core of judicial accountability.

With such disregard for judicial accountability, can the Federal Court of Malaysia, being the apex and the final Court of Appeal in the country, any longer claim legitimacy to set the correct standards for judicial accountability to be followed by judges and courts below?

In any event is not a two and a half years' delay inordinate to constitute a breach of Rule 3(1)(f) of the Code? If there is a reasonable explanation for the delay, who is to determine that? Again it has to be a tribunal under Article 125(3) of the Constitution.

It may be that if further investigations are carried out further breaches of the Code may emerge. At this point suffice to state that reasonable suspicion is sufficient to prove breach under Rule 3(1)(c) of the Code.

It may be well for the Chief Justice to remember Principle 7 of the Beijing Statement of Principles of Judicial Independence in the Asia and Pacific Region 1995 to which he and 32 other Chief Justices in the region were signatories. Principle 7 provides that "Judges shall uphold the integrity and independence of the Judiciary by avoiding impropriety and the appearance of impropriety in all their activities".

The continued refusal on the part of the competent authorities to address this issue quickly and arrest further deterioration of the vital constitutional institution in Malaysia will seriously harm public confidence domestically and internationally not only in the institution itself but also the integrity of the nation and its government.

Dato' PARAM CUMARASWAMY is United Nations Special Rapporteur on the Independence of Judges and Lawyers.