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March 22, 2006

Judicial immunity 
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This opinion of mine is with regards to statements made by lawyers and judges in their capacity as lawyers and judges in a court room.

Recently a very high ranking judge in his capacity as a judge sitting in a court room said some very defamatory remarks of certain individuals who are indirectly involved in a case. Such remarks were unheard of since our judges aren't exactly very gung ho before. I welcome such remarks because it shows they have went through every piece of evidence and came up with a fair judgment although the persons claimed to be defamed said the judge was out of line.

In Malaysia, whatever the judges say in his capacity as a judge in a court room is covered by immunity, meaning he can't be sued, arrested, etc. This is more so when the case is still ongoing. The logic is simple and I shall explain later.

However lately there were reports by various sectors of community which wrote that judges should not be given unquestionable immunity and this particular judge should have been punished somewhat. What I find amazing is the observations by this judge was not taken seriously by the relevant authorities to check into what the judge obviously hinted at; corruption and favouring croonies that resulted in an innocent company puched out of business and into heavy debt. As much as one should doubt his statement, the authorities should investigate because I doubt this judge and with 2 others sitting in the same court room would make baseless allegations.

Now the community, from laymen to doctors to teachers to every other people other than lawyers who disapproved of the broad immunity given to judges now said in clear voice that why should a judge be given such broad immunity? It went as far as one rather silly article by perhaps a not so bright layman who wrote then such immunity should be given to doctors and teachers in cases of negligence.

Now in clear cut negligence case a judge should be accountable. But I believe whatever said in the court room stays in the court room.

One such example is this; one girl or guy complained to the Anti Corruption Agency about a cop receving bribes. The cop sued the girl back for making defamatory remarks. Imagine you're that girl. If you don't retract your statement you will be sued. If you retract, you may deemed to be a liar when you believe what you did was right. Suing others who reported against you, especially those having power and authority is probably what you all will call a case of intimidation. It is not quite different from issuing a direct threat. Poor girl. Of course you will feel well the police may be innocent. But to sue this girl whilst his case was ongoing gives people a perception that perhaps he was dishonest as well. The police could well sue the girl after the investigation was over and he was innocent of all charges.

Now back to this judge. You see my point? A lawyer should be afforded the same immunity too for whatever said in a court room for a very simple reason. We are in a profession where we must not be cowed down by threats and we must fight a case without fear nor favour. You may think defaming someone in a court room may not be you idea of justice, but so is saying something offensive, then got sued whilst case ongoing or case is over but the statement was never proven to be wrong, just so as to force the lawyer or judge to abandon the case. This is not my idea of justice.

If you're unhappy with what the judge said, complain to the right department. Of course one may think no way the judge will be punished but sometimes justice prevails. Not happy with the conduct of the lawyer? Complain him to the Bar Council. The rules of conduct governs that exactly; conduct. Words said are not generally covered in my opinion because we must not be threatened by every piece of lawsuit so as to hamper our fight in a particular case.

Why not same immunity for doctors you ask in cases of negligence? Imagine you as a doctor diagnosed a patient with having cancer without looking at the records properly, patient kills himself and do you think you action was not negligent? I do not know the standard applied in investigations amongst doctors but for a doctor to be successfully sued in a court, the test is not merely, negligence but GROSS NEGLIGENCE meaning whatever you did was so wrong, dude you're screwed.

What about teachers? Do what they say or do affects a student or parent so much so that immunity must be given? I believe immunity is given in some sense, like kinship amongst those of the same profession.

Lawyers are not given blanket immunity but we make do with what we have. Imagine being threatened with lawsuits everyday with regards to what this lawyer does in a case short of fraud and gross neglience? How then can this lawyer function as a lawyer in a court? Nowadays I got complaints by people who weren't happy with the way the case is conducted, and complaints are threatened to be made to the Bar Council. Am I cowed down by these threats? No because I know my actions were justifiable.

I am sure the judge felt the same way. This is why immunity for judges in a court room and for lawyers too is so important. We must be fearless. If our immunity for statements made are not given such immunity, I am afraid no judges will dare to voice an opinion and no cases can be solved and no judgments can be made. The legal profession and our judges are not elected by the people so therefore we are not accountable to the people. We are accountable to the very notion of justice and fairness and the robes we wear and the motto of our profession, always invariably refers to fighting cases without fear nor favour. Being officers of the court, we are accountable to the court but not to every individual who feels they have been defamed. If the case is done, judgment passed and indeed no accountability on this individual, then this individual has every right to pursue a case against the errant judge or lawyer only in so far that there was gross negligence on the part of this errant judge and lawyer.

If this individual in the case mentioned above is innocent, he should urge the ACA to investigate the claims of the judge, prove to be without fault and then do what he must to restore his good name.

There is a rule in equity which says that whoever pursues a matter must also come with clean hands meaning they must not have agenda as well and also the law must be used as a shield and not as a sword.

This is why I feel immunity for those in the legal profession for everything they do in connection with a case and in a court room and for statements made in relation to that case must be uphold. I also believe such is not a blanket immunity if and only if gross negligence can be proven. As such complaints must be made to relevant bodies and not to sue this individual in a court of law because that is an indirect threat. All complaints made to governing bodies are what I call fair game. You're subject to the rules of the body you're a member of.