LETTERS: I refer to the Malaysian Bar Council's media statement on April 3 and the joint statement by the Coalition for Clean and Fair Elections as well as Gabungan Bertindak Malaysia on April 11.
I wish to highlight misconceptions and misinformation that have caused confusion and misunderstanding.
Much has been argued in media reports recently. One of the issues that's raised is that the Malaysian Anti-Corruption Commission (MACC) has no right to initiate investigation into a superior court judge.
It cites the doctrine of the separation of powers; any enforcement body in the executive branch investigating a member of the judiciary, especially on judicial ethics, is tantamount to interfering in the judicial branch.
Does this line of argument have any basis with reference to the Federal Constitution, the highest law of the country? A number of constitutional experts have been quoted in the media recently rebutting this view.
Associate Professor Datuk Wan Ahmad Fauzi Wan Husain was quoted recently by a news portal as saying ethics and disciplinary issues cannot preclude the use of the Criminal Procedure Code, the Malaysian Anti-Corruption Act and the powers of the attorney-general as the public prosecutor under Article 145 of the Constitution.
He argued that based on the principle of equality before the law, no one should be exempt from investigation.
Judges who are investigated or charged must complete the process first before any proceedings under Article 125 that deals with ethics and disciplinary issues take place.
Evidently, this argument is affirmed by a Federal Court judgment: Chief Justice Tun Tengku Maimun Tuan Mat reiterated the constitutional entitlement of enforcement bodies like the MACC to investigate superior court judges.
Here, we can refer to the Federal Court judgment (Feb 24, 2023) on the civil suit brought by Haris Fathillah bin Mohamed Ibrahim & Anor against Tan Sri Azam Baki & Anor. The appellants' declaratory relief is framed in the form of the following questions in the judgment:
Firstly, whether having regard to Article 4 and Part IX of the Federal Constitution, criminal investigation bodies, including but not limited to the MACC, are only legally permitted to investigate judges of the High Court, Court of Appeal and the Federal Court that have been suspended pursuant to Article 125(5).
Secondly, whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal and the Federal Court pursuant to Article 145(3), having regard to Article 4 and Part IX.
The Federal Court judgment had replied "No" to the first question, and a "Yes" to the second question.
Although the judgment also stated that a set of protocols should have been followed, ie, informing the chief justice before commencing investigations, the seven-member bench concluded, and I quote: "In conclusion, we reiterate that serving superior court judges are not immune from criminal investigations or prosecution. They need not be suspended or removed before they can be investigated or prosecuted…"
This is because, they admitted, the "chief justice cannot summon eyewitnesses or conduct an independent inquiry without the police. In a corruption case, the chief justice cannot verify bank records and question transactions…".
Furthermore, if a "serving superior court judge is accused of a crime such as murder, rape or even corruption, how is evidence to be gathered to separate the wheat from the chaff (spurious allegations from genuine complaints)?"
The above leads us to the second issue raised by the groups claiming that the MACC has neither the competency nor jurisdiction to investigate a judge's ethics.
Going by the logic of the Federal Court judgment, if the MACC is not permitted to conduct investigations into complaints of judicial corruption or misconduct, how would the next presiding authority which admittedly does not have the competency to summon eyewitnesses or conduct an independent inquiry determine whether there is any basis to the allegations in order to proceed with the suspension of the judge under Article 125(5)?
It may be true that the MACC does not have the prerogative to investigate breaches of judicial ethics. But if it receives formal complaints of corruption against a superior court judge, should it not investigate at all when the law prescribes that it probes into any allegation of corruption?
And, how would anyone know if the allegations are baseless unless the MACC investigates them?
Primarily, one should understand that the MACC report is merely its findings and it has no power to order or instruct proceedings against a person. This is in accordance with the principle of separation of powers.
The chief justice decides whether or not to commence a tribunal or Judges Ethics Committee proceedings to look into the matter. Hence, the MACC should not be faulted for conducting an investigation that is its constitutional right.
Secondly, this is not the first time the ethics of a superior court judge have been questioned.
In 1996, a High Court judge had written an anonymous letter alleging, among others, ethical misconduct on the part of the then chief justice Tun Mohamed Eusoff Chin.
The judge was urged by none other than the Malaysian Bar to report the matter to the then Anti-Corruption Agency. Strangely, the same Malaysian Bar is vehemently opposed to the MACC investigating allegations against a High Court judge.
Thirdly, and more baffling, there has been grave misinformation about the MACC announcing its investigation into the High Court judge.
The first time the issue was confirmed was in a media report on April 22 last year. At that time the media was rife with allegations of a High Court judge being probed by the MACC.
We must not blame the chief commissioner for confirming the investigation if the issue was already out in public and the media was hounding him for an answer. Merely confirming the probe to a single reporter is not tantamount to announcing it to the world in bad faith.
After that confirmation, the Bar Council and the opposition attacked the MACC for supposedly breaching the principle of separation of powers by investigating the judiciary.
The MACC issued a press statement on April 28 last year defending its mandate to investigate "public officers", who include judges, as stated in the MACC Act 2009.
Simply stating it is following legal procedure is by no means an announcement of an intention to smear the good name of the judge.
Finally, investigating one judge does not amount to attacking the entire judiciary.
Perhaps the Bar and its allies have forgotten it was the MACC that put in years of thorough investigation in that very case, which had resulted in a conviction.
We often hear, "Justice must not only be served, but must also be seen to be served". More importantly, we must also add, justice has to be based on facts, not emotions and perceptions.
DR KASSIM NOOR MOHAMED
Vice-chancellor (designate)
Enforcement Leadership and Management University
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times