Press Release: Judicial Immunity

Thursday, 16 March 2006, 23:58

Recently, the subject of judicial immunity has received a measure of public attention and discussion. A perception has arisen in the public domain that Judges may be sued or taken to court for what they do or say in the performance of their duty, if it could be shown that there was an absence of good faith.As the issue is inextricably intertwined with the principle of judicial independence, it is important for the public to understand and appreciate the concept and significance of judicial immunity.

Judicial immunity of judges is granted both at common law and, in Malaysia, by Section 14 of the Courts of Judicature Act 1964 which reflects the age-old common law principle that persons exercising judicial functions are exempt from all civil liability of any kind, in respect of anything done or said by them in their judicial capacity.

Thus, and as an illustration, if a judge makes a comment, inference, or finding of fact in the course of judgment, he or she is accorded the protection of judicial immunity, and cannot be sued in any court.

This protection applies even where the judge has acted outside the ambit of his jurisdiction, so long as at the time of so acting the judge himself (whether rightly or erroneously) believed that he had the jurisdiction to do what he did.

The existence of judicial immunity is rooted in sound and solid grounds of public policy. If judges do not enjoy such immunity, and if they can be taken to court for what is alleged to be a wrong finding, comment or decision, then no judge will be able to carry out his or her judicial function free from fear. The fabric of the independent exercise of judicial decision making will wholly disintegrate.


Any error alleged to have been made by a judge must be addressed by way of the appeal process, and not by seeking to establish liability on the part of the judge.However, it is also important to realise that judicial immunity does not mean that the decisions and conduct of judges may not be commented upon or criticised. The contrary is in fact the case, in any democratic society that cherishes accountability. Judges’ decisions and conduct may properly be the subject matter of discussion and criticism, unless it is done with malice, or as a deliberate attempt to undermine the administration of justice.

Dated 15 March 2006

Yeo Yang Poh
Chairman
Bar Council