The outburst of Justice R.K. Nathan on July 31, 2002 in the Penang High Court which was widely published in the media raises concerns regarding the integrity, propriety and decorum of judges affecting generally the independence and impartiality of the judiciary.

The words uttered by Justice Gopal Sri Ram in his ex-tempore judgement delivered on July 26, 2002 as reported in the media was the judgment of the Court of Appeal. The words uttered by Justice R.K. Nathan regarding Justice Gopal Sri Ram though couched as part of a judgment in an appeal on a personal injury claim had no relationship whatsoever to the appeal before him. Furthermore, virtually all what he said in the five pages regarding Justice Gopal Sri Ram were personal to him in substance.

The last sentence in that judgment namely "He must know that each time he makes a personal attack upon a judge in future a response will come swift and fast" could be perceived as a threat.

Paragraphs 2 and 8 of the UN Basic Principles on the Independence of the Judiciary provide:

2. The judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures threats or interferences, direct or indirect, from any quarter or for any reason . (emphasis added)

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary . (emphasis added)

Extraneous forces within system

History has shown that judicial independence can be threatened not just by the executive arm of the government but by other extraneous forces including by judges within the system.

Even if the interpretation given by Justice R.K. Nathan to the words of Justice Sri Ram is justified yet was it proper for Justice R.K. Nathan as a judge to use his judicial office to vent his personal anger during an unrelated judicial process?

In that event has he not allowed his private interests to come into conflict with his judicial duties or has he not used his judicial position for his personal advantage?

Rule 3 (1)(c) of the Judges Code of Ethics provides that: "a judge shall not conduct himself in any manner likely to cause a reasonable suspicion that he has allowed his private interests to come into conflict with his judicial duties so as to impair his usefulness as a judge or he has used his judicial position for his personal advantage".

Article 125((3) of the Constitution provides for removal of a judge, amongst others, on the ground of any breach of a provision of the Code of Ethics.

Judges are provided insulations to protect their independence and impartiality to enable them to exercise their judicial power independently and impartially. Foremost among these insulations are security of tenure and immunity from legal suits of any kind for words uttered in the course of the judicial process.

However, judges too are accountable. If they misuse their judicial power they will lose these insulations and expose themselves to disciplinary proceedings.

Dato' Param Cumaraswamy is the UN Special Rapporteur on the Independence of Judges and Lawyers