Code of Judicial Conduct 2008

WHEREAS, the Constitution and internationally accepted human rights treaties recognize as fundamental the principle that everyone is entitled in full equality and without undue delay to a fair and public hearing by a competent, independent, and impartial tribunal in the determination of rights and obligations and of any criminal charge.

WHEREAS, a competent, independent and impartial judiciary is likewise essential if the courts are to fulfill their role in upholding constitutionalism and the rule of law.

WHEREAS, public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society.

WHEREAS, it is essential that judges, individually and collectively, respect and honor judicial office as a public trust and strive to enhance and maintain confidence in the judicial system.

AND WHEREAS, the primary responsibility for the promotion and maintenance of high standards of judicial conduct lies with the judiciary.

NOW, THEREFORE, the undersigned adopt the following code of judicial conduct ("Code") for the courts and judges of the Marshall Islands.

This Code is intended to establish standards of ethical conduct for judges in the Marshall Islands. The Code is designed to provide guidance to judges and to create a framework for the judiciary to regulate judicial conduct. Further, the Code is intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. The Code presupposes that judges are accountable for their conduct to independent and impartial institutions within the judiciary established to maintain judicial standards on a day-to-day basis. The Code is intended to supplement and not to derogate from existing rules of law and conduct that bind the judges of the Marshall Islands.

It is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Code, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances of the transgression, the extent of any pattern of improper activity, whether there have been prior violations, and the effect of the improper activity upon the judicial system. The Code is not designed or intended as a basis for civil liability or criminal prosecution. The purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

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Judicial independence is a prerequisite to the rule of law and to a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

1.1 A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, without regard to any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

1.2 In performing judicial duties, a judge shall be independent in relation to society in general and in relation to the particular parties to a dispute that the judge is to adjudicate.

1.3 A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

1.4 With respect to decisions a judge is obligated to make independently in performing judicial duties, a judge shall exercise judgment independent of judicial colleagues. With respect to litigation or a dispute pending before another court or administrative agency, a judge likewise shall refrain from influencing the outcome except as permitted by this Code or otherwise.

1.5 A judge shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary.

1.6 A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence.

Impartiality is essential to the proper discharge of the judicial office. Impartiality is essential not only to the decision itself, but also to the process by which the decision is made.

2.1 A judge shall perform his or her judicial duties without fear, favor, bias, or prejudice.

2.2 A judge shall ensure that his or her conduct, both professional and personal, maintains and enhances the confidence of the public, lawyers, and parties in the impartiality of the judge and of the judiciary.

2.3 A judge shall, so far as is reasonable, conduct himself or herself as to minimize the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases.

2.4.1 A judge shall not knowingly, while a proceeding is before, or reasonably could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the fairness of the process.

2.4.2 A judge shall require court staff and others subject to the judge's direction and control to refrain from making statements that the judge would be prohibited from making by paragraph 2.4.1.

2.4.3 Notwithstanding the restriction in paragraph 2.4.1, a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a party in a personal capacity.

2.4.4 Subject to the requirements of paragraph 2.4.1, a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge's conduct in a matter.

2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where

2.5.1 the judge has actual bias or prejudice concerning a patty or lawyer or personal knowledge of disputed evidentiary facts concerning the proceedings, other than that of any other member of the public;

2.5.2 the judge previously served as a lawyer or was a material witness in the matter in controversy;

2.5.3 the judge has, or knows that a member of the judge's family has, a pecuniary or proprietary interest in the outcome of the matter in controversy that is other than de minimis or that is other than that of any other member of the public;

2.5.5 the judge is related within the third degree, either by consanguinity or affinity, to a party, lawyer, or material witness;

Provided that disqualification of a judge shall not be required if constituting another tribunal to deal with the case is not practical or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice. Disqualification shall also not be required, other than for actual bias, if after the basis of disqualification is disclosed on the record, all parties and lawyers, independent of the judge's participation, agree in writing that the reason for the potential disqualification is immaterial or unsubstantial. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings.

3.1 A judge shall ensure that his or her conduct, both professional and personal, is above reproach in the view of a reasonable observer.

3.2 The behavior and conduct of a judge must reaffirm the public's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.

3.3 A judge having knowledge that conduct by another judge, court staff, or a lawyer violates applicable codes of conduct should take appropriate action. In the case of minor matters and the offending person is a judge, such appropriate action includes calling his or her attention to such minor infraction, but if the offending person is court staff or a lawyer, a private admonition maybe given. If the improper conduct of the judge, court staff, or lawyer is serious, the appropriate action may include referral to the appropriate disciplinary authority.

3.4 A judge having a reasonable belief that the performance of another judge, court staff, or a lawyer is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, should take appropriate action, which may include a confidential referral to an assistance program or referral to the appropriate disciplinary authority.

Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

4.1 A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities, both professional and personal.

4.2 As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office and the laws of the Marshall Islands.

4.3 A judge shall, in his or her personal relations with lawyers who practice regularly in the judge's court, avoid situations that might reasonably give rise to the suspicion or appearance of favoritism or partiality.

4.4 A judge shall not participate in the determination of a case in which any member of the judge's family represents a party or is associated in any manner with the litigation. The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify to be judge.

4.5 A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. To this end, a judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

4.6 A judge shall inform himself or herself about the judge's personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge's family, so as to anticipate and remedy potential conflicts affecting disqualification.

4.7 A judge shall not allow family, social, or other relationships to improperly influence the judge's judicial conduct and judgment.

4.8 A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge's family, or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position to improperly influence the judge in the performance of judicial duties. A judge may provide a reference or recommendation for an individual based upon the judge's personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.

4.9 Confidential information acquired by a judge in the judge's judicial capacity shall not be used or disclosed by the judge for any purpose other than the judge's judicial duties.

4.10.1 write, lecture, teach, and participate in activities concerning the law, the legal system, the administration of justice or related matters;

4.10.2 appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters;

4.10.3 serve as a member of an official body, or other government commission, committee or advisory body, if such membership is not inconsistent with the perceived impartiality and political neutrality of a judge;

4.10.4 participate in educational, religious, charitable, fraternal, or civic organizations and activities not conducted for profit; provided, however, a judge shall not solicit for contributions in or in relation to the Marshall Islands: serving as an usher, food server or preparer, and the like at a fund-raising event is not solicitation;

4.10.5 hold and exercise rights and titles under Marshallese customary law and traditional practice and participate in customary Marshallese family activities and events; provided the judge does not use the prestige of office to influence customary, family, or community affairs; or

4.10.6 engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.

4.11 A judge, other than a pro tem judge and except as otherwise provided by law, shall not

4.11.1 act as an arbitrator or a mediator or perform other judicial functions in relation to the Marshall Islands apart from the judge's official duties; or

4.11.2 practice law in relation to the Marshall Islands while the holder of judicial office. Provided, however, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family, but is prohibited from serving as the family member's lawyer in any forum.

4.12 A judge may form or join associations of judges or participate in other organizations representing the interests of judges. A judge may join associations of lawyers or the judicial division of associations of lawyers, provided that being a member of such an association or division would not to the reasonable observer create an impression of favoritism or partiality, and provided that such participation is not in violation of other provisions of this Code.

4.13 A judge and members of the judge's family, shall neither ask for, nor accept, any gift, bequest, loan, or favor in relation to any action or inaction by the judge in connection with the performance of judicial duties.

4.14 A judge shall not knowingly permit court staff or others subject to the judge's influence, direction or authority, to ask for, or accept, any gift, bequest, loan, or favor in relation to any action or inaction in connection with his or her duties or functions.

4.15 Subject to law and to any legal requirements of public disclosure, a judge may receive a customary and traditional gift (e.g., gifts of food, mats, fans, etc. at funerals, birthday parties, graduations, investitures, and similar occasions, i.e., jab koje pein ak (do not twist the frigate bird's wing)) or a token gift, award, or benefit as appropriate to the occasion on which it is made provided that such gift, award, or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality.

4.16.1 A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of all the parties or their lawyers, concerning a pending or impending matter, except as follows:

4.16.1.1 When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

4.16.1.1.1 the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

4.16.1.1.2 the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond

4.16.1.2 A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.

4.16.1.3 A judge may consult with court staff whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

4.16.1.4 A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

4.16.1.5 A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.

4.16.2 If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

4.16.3 A judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that may properly be judicially noticed.

4.16.4 A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this provision is not violated by court staff and others subject to the judge's direction and control.

4.17.1.2 make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office; or

4.17.13 solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.

4.17.2 A judge shall resign the judicial office when the judge becomes a candidate in an election for any office.

4.17.3 A judge shall not engage in any other political activity with respect to the Marshall Islands; provided, however, this should not prevent a judge from registering to vote, joining a particular political party, voting, or engaging in the activities described in paragraph 4.10.

4.18.1.1 compensation received for extrajudicial activities as permitted by Rule 4.10;

4.18.1.2 gifts and other things of value as permitted by Rule 4.15, other than gifts from family members and customary and traditional gifts, unless the value of such items, alone or in the aggregate with other items received from the same source in the same calendar year, does not exceed $100.00; and

4.18.1.3 reimbursement or payment of expenses and waiver of fees or charges for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the Government of the Marshall Islands or its donor countries and agencies, if the expenses or charges are associated with the judge's participation in extrajudicial activities permitted by this Code, unless the amount of reimbursement or waiver, alone or in the aggregate with other reimbursements or waivers received from the same source in the same calendar year, does not exceed $1,000.00.

4.18.2 When public reporting is required by paragraph 4.18.1, a judge shall report the date, place, and nature of the activity for which the judge received any compensation; the description of any gift, loan, bequest, benefit, or other thing of value accepted; and the source of reimbursement of expenses or waiver or partial waiver of fees or charges.

4.18.3 The public report required by paragraph 4.18.1 shall be made at least annually, except that for reimbursement or payment of expenses and waiver or partial waiver of fees or charges, the report shall be made within thirty days following the conclusion of the event or program.

4.18.4 Reports made in compliance with this paragraph shall be filed as public documents in the office of the Clerk of the Courts and submitted to the Clerk of the Cabinet.

4.19 A judge should not use to any substantial degree judicial chambers, resources, or staff to engage in extrajudicial activities permitted under this Code. This paragraph does not apply to activities engaged in for or sponsored by the Judiciary.

Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

5.1 A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

5.2 A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon gender, race, language, religion, political or other opinion,
national or social origin, place of birth, family status or descent, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

5.3 A judge shall require lawyers in proceedings before the court to refrain from manifesting
bias or prejudice, or engaging in harassment, based upon attributes including but not limited to gender, race, language, religion, political or other opinion, national or social origin, place of birth, family status or descent, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

5.4 The restrictions of paragraphs 5.2 and 5.3 do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Competence and diligence are prerequisites to the due performance of judicial office.

6.1 The judicial duties of a full-time judge take precedence over all other activities.

6.2 Except as otherwise provided by this Code or other law, a judge shall devote the judge's professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court's operations.

6.3 A judge shall take reasonable steps to maintain and enhance the judge's knowledge, skills, and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities that should be made available, under judicial control, to judges.

6.4 A judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly, and with reasonable promptness, while according to every party and lawyer the right to be heard.

6.5 A judge shall hear and decide matters assigned to the judge, except when disqualification is required by paragraph 2.5 or other law.

6.6 A judge shall maintain order and decorum in all proceedings before the court and be patient, dignified, and courteous in relation to parties, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. The judge shall require similar conduct of lawyers, court staff, and others subject to the judge's influence, direction, or control.

6.7 A judge shall not engage in conduct incompatible with the diligent discharge of judicial duties.

6.8 During the work day, a full-time judge should be at the courthouse or otherwise discharging judicial duties. While in country, a trial judge should be available for emergencies 7 days a week.

6.4 A judge shall cooperate with other judges and court staff in the administration of court business.

6.10 A judge should initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge shall act in a manner consistent with this Code.

7.1 This Code shall apply to all judges of the Marshall Islands, except as expressly provided otherwise.

7.2 Anyone may complain to the Judicial Service Commission "Commission") about the conduct of a judge, including a violation of this Code; provided, however, the Commission also may commence proceedings on any information that is made known to it without formal complaint.

7.3 Upon receiving a complaint, the Commission shall acknowledge receipt to the complainant, inform the subject judge, and conduct a preliminary examination of the complaint, making such inquiries as it deems appropriate. The Commission shall, to the extent practical, conduct its examinations and investigations in private.

7.4.2 classify the complaint as either one that, if substantiated, could justify removal or one that does not, and proceed under paragraph 7.6.

7.5.3 the conduct complained of occurred at too remote a time to justify further consideration;

7.5.7 the complaint is about a judicial decision or other judicial function that is directly related to the merits of a decision or procedural ruling;

7.5.8 the Commission previously considered the complaint and there are no new grounds to justify taking further action.

If the Commission dismisses a complaint, the Commission shall so inform the complainant, the subject judge, and the head of the court concerned.

7.6 If the Commission does not dismiss the complaint, the Commission shall either refer the matter to the head of the court concerned pursuant to paragraph 7.7 or conduct a formal review pursuant to paragraphs 7.8 and 7.9. In either case, the Commission shall inform the complainant, the subject judge, and the head of the court concerned of its action.

7.7 If the conduct, although inappropriate, is not one that would justify removal, the Commission shall refer the matter to the head of the court concerned for appropriate action, including admonishing or reprimanding the judge, asking the judge to apologize to the complainant, and offering assistance to the judge to avoid the inappropriate conduct.

7.8 If the conduct is one that if substantiated could justify removal, the Commission shall conduct a formal review, holding one or more hearings. The Commission shall, to the extent practical, conduct its examinations and investigations in private. The Commission may hold the hearings in public or private. If a hearing, or part thereof, is conducted in private, the Commission shall determine who may be present. Pending completion of a formal review, the Commission in the case of a District Court or Community Court judge may suspend the judge and in the case of a Supreme Court, High Court, or Traditional Rights Court judge may recommend to the Cabinet that it suspend the judge, if the seriousness of the transgression or the effect on the judiciary so requires.

7.9 With respect to any hearing, the subject judge shall have the following rights: to be promptly informed in detail of any accusation; to a hearing without undue delay; to adequate time to prepare a defense, to defend himself or herself in person or through a lawyer; to call, examine, and cross-examine witnesses; and to subpoena the appearance of witnesses and the production of documents and other things.

7.10 To assist the Commission, the Commission may appoint a lawyer to investigate the complaint, report to the Commission, and call, examine, and cross-examine witnesses at hearings.

7.11 The Commission may, for purposes of its investigations, subpoena the appearance of witnesses and the production of documents and other things, and the Commission may administer an oath or affirmation to a person appearing before it.

7.12 Upon completing a formal review, the Commission shall set forth in writing its findings of fact, conclusions, and reasons for its conclusions and shall either

7.12.1.1 it is of the opinion that the complaint should be dismissed on any of the grounds set forth in paragraph 7.5 or

7.12.1.2 the conduct alleged in the complaint has not been established by clear and convincing evidence; or

7.12.2 refer the matter to the head of the court concerned for appropriate action if the conduct, although inappropriate, is not one that justifies removal; or

7.12.3 in the case of a judge of the District Court or a Community Court, remove the judge from office or refer the matter to the head of the court concerned for appropriate action; or

7.12.4 in the case of a judge of the Supreme Court, the High Court, or the Traditional Rights Court, forward its findings and conclusions to the Cabinet.

In any case, the Commission shall inform the complainant, the subject judge, and the head of the court concerned of its action.

7.13 If the head of the court concerned is the object of the complaint, the Chief Justice of the High Court shall discharge the functions of the head of the court under this disciplinary procedure.

7.14 if the Chief Justice of the High Court is the object of the complaint, the Chief Justice of the Supreme Court shall discharge the functions of the Chief Justice of the High Court under this disciplinary procedure.

7.15 In interpreting and applying this Code, the Commission, and a court may look to commentaries and court decisions interpreting codes similar, in the relevant respect, to this Code, but shall not be bound thereby; and, in following any such commentary or decision, shall adapt it to the needs of the Marshall Islands, taking into account this Code as a whole and the circumstances in the Marshall Islands from time to time.

In this Code, unless the context otherwise permits or requires, the following meanings shall be attributed to the words used:

8.3 "Judge's family" includes a judge's spouse, son, daughter, son-in-law, daughter-in-law, and any other close relative or person who is a companion or employee of the judge and who lives in the judge's household.

This Code may be cited as the Marshall Islands Code of Judicial Conduct and its provisions shall be effective as of the date set forth below.

The undersigned hereby adopt the above Marshall Islands Code of Judicial Conduct on May 27, 2008.

______________________ Daniel N. Cadra Chief Justice Supreme Court	_____________________ Carl B. Ingram Chief Justice High Court
_______________________ Berson Joseph Chief Judge Traditional Rights Court	_____________________ Milton Zackios Presiding Judge District Court

Marshall Islands Rules for the Legal Profession and Judiciary

Code of Judicial Conduct 2008