'Not right for judge to act as adviser to Bakti'

PETALING JAYA (April 29, 2008): It is inappropriate and wholly unacceptable for any member of the judiciary to act as legal adviser or in any legal capacity for any body or person while holding the office of a judge, says the Bar Council.

"More so if the body or person is associated with a state or federal government or a political party," said its president Datuk Ambiga Sreenevasan today.

“The Bar Council is deeply concerned by the report in theSun that suggests the involvement of a Court of Appeal judge as legal adviser to Bakti on matters pertaining to the transfer of funds from Association of Wives of State Assemblymen and Members of Parliament in Selangor (Balkis) and its Penang equivalent - Bunga Tanjung,” she told theSun.

The two organisations reportedly transferred the funds to Bakti, the Federal Association of Wives of Ministers and Deputy Ministers, after Barisan Nasional (BN) lost the elections in the states to Pakatan Rakyat on March 8.

“Such conduct is inconsistent with his or her position as a serving judge and has a direct impact on the issue of conflict and the independence and impartiality of the judge,” said Ambiga.

"In the circumstances and given the severity of the consequences of the allegations, it is important that the facts be established and that the judge be accorded a fair opportunity to respond to the allegations in an appropriate manner," she added.

Ambiga was responding to a report in theSun today which named Court of Appeal Judge Datuk Helilah Yusof as Bakti’s legal adviser. This was stated in the minutes of a Bakti Council meeting.

Former UN Special Rapporteur on the Independence of Judges and Lawyers Param Cumaraswamy said in a letter published in theSun the involvement of a sitting judge in the transfer of funds from Balkis to Bakti is likely to cause a reasonable suspicion that the judge allowed private interests to come into conflict with judicial duties.

This amounts to breach of the Judges’ Code of ethics 1994.

He said the conduct of the judge should be referred to the Chief Justice who in turn should take appropriate action against the judge concerned.

Meanwhile, Malaysian Institute of Accountants (MIA) president Nik Mohd Hasyudeen said the legality of transferring the funds of an organisation depends on the constitution of the organisation itself as normally, there is no mandatory need for funds to be audited before a transfer is made.

However, since MIA has no access to Balkis constitution "we are unable to comment on this", he said.

“What we can say is, the auditor’s responsibility is to ensure that the financial statements of an organisation reflect a true and fair position,” said Nik Mohd.

Therefore, if they have not been engaged to conduct an audit prior to the transferring of funds, then the auditor has nothing to do with the process, he added.

Nik Mohd said generally, when transferring funds, adherence to good corporate governance practices is paramount.

It would be important to ensure that the purpose for transferring the funds is in line with the objectives and constitution of the organisation.

The process should be transparent and backed by the necessary justification and evidence to aid in disclosure, he said.

Nik Mohd was commenting on a report which quoted external auditors for Balkis as saying the charity's accounts for 2007 were never audited or finalised, contrary to claims by former mentri besar Datuk Seri Dr Mohd Khir Toyo.

Yee Choon Kong & Co said the financial statement of Balkis was unaudited and the accounts not finalised before the funds were transferred. Company principal Yee Choon Kong said he never issued a duly signed audit report in respect of the conduct and financial affairs of Balkis for the financial year ending last Dec 31.

The firm said it had called the treasurer of Balkis, Datin Suraimi Sapuan, to send financial records for auditing but the calls remained unanswered.

Yee said they had no knowledge of new auditors being appointed to replace his firm and that even if this was the case, the Institute of Accountants by-laws impose an obligation on new auditors not to accept the role without consulting existing auditors. He said his firm had received no inquiries from any new firm of auditors.

Investigate Balkis affair
THE events reported in the front page of theSun on April 25 on the attempted dissolution of Balkis and the transfer of its funds to another organisation using Bakti as a conduit are bizarre to say the least.

What is of equal concern is the involvement of a sitting judge who is reported to have advised Bakti on the matter. If this is true the sitting judge must be called to explain his/her conduct.

The judge’s conduct is likely to cause a reasonable suspicion that the judge allowed his/her private interests to come into conflict with his/her
judicial duties which could amount to a breach of the Judges’ Code of Ethics 1994.

The authority investigating the attempted dissolution of Balkis and the transfer of the funds should refer the conduct of the judge to the Chief Justice who in turn should take appropriate action against the judge concerned.

It is unfortunate that there is not an appropriate mechanism like a judicial complaints council to which a complaint like the present could be referred for independent investigation.

Param Cumaraswamy former UN Special Rapporteur on the Independence of Judges and Lawyers.