No reason to overreact over judge Nazlan’s case

 

From Tan Jun Yu

Weeks have elapsed since the confirmation by the Malaysian Anti-Corruption Commission (MACC) that it has commenced an investigation into a graft allegation against Court of Appeal judge Nazlan Mohd Ghazali.

Since then, I have read able arguments and opinions by some learned jurists, lawyers, academicians and politicians.

Among those that enlighten and inspire me are the letter penned by the retired chief justice Abdul Hamid Mohamad and the remarks by Selangor Barisan Nasional information chief Isham Jalil, where they argue on MACC’s side.

In addition, MMU lecturer Hafiz Hassan is of the opinion that the probe has encroached on the constitutional protection conferred to the superior court judges.

Another piece worth reading is a relatively neutral commentary addressed by the reputable scholar Shad Saleem Faruqi who suggests law reform to solve the dilemma.

I do not intend to engage myself in the fruitless labour of repeating their arguments, save to express my full endorsement of the opinion held by Hamid that it might be unsound in law and unwise in reality to deter this ongoing probe.

The suggestion of law reform from Shad Saleem is also commendable; an express clarification of this issue by written law is much desired so that the law can be certain and consistent.

What I would like to do is to view the episode from another perspective.

Prior to 1993, all rulers in Malaysia enjoyed unfettered civil and criminal immunity where they cannot be held accountable before any court of law in this land. As it is often said that absolute power corrupts absolutely, it came as no surprise that on a fateful day in 1992 an ordinary man named Douglas Gomez was assaulted and injured by royalty, and gained no justice afterwards but only suppression.

The poor guy garnered nationwide sympathy and support, which then transformed into a special court established through the amendment to the Federal Constitution, with the result that the rulers were deprived of their immunity.

This approach is generally approved and cherished as bringing to life the noble notion that all men are equal before the eyes of the law. More importantly, the mainstream does not view it as an insult to the royal institution, for it is accepted that the concept of constitutional monarchy comprises the element of the rule of law.

Some 20 years later, there came another event worthy of discussion, namely the tale that then attorney general Abdul Gani Patail was sacked as he had decided to prosecute the then sitting prime minister Najib Razak over the 1MDB scandal (I do not assert its truthfulness or otherwise).

His removal from the office provoked public uproar and catalysed serious backlash against the government. The point here is it vividly illustrates that the public is not comfortable with the idea that the premier is seemingly immune from criminal prosecution.

After all, it can be said that in this very land, no citizen is immune, whether he or she carries the title “the Royal Highness” or “Yang Amat Berhormat”.

Thus, it is interesting to observe that at present some are not happy when a sitting superior court judge is investigated for a criminal allegation. Of course, I do not advocate any deliberate and mala fide investigation and prosecution.

But equally, I do not think that it is a good sign to overreact and be overprotective of the judiciary at all costs, with the consequence that the notion of equality before the law is at stake. It is prudent for us to contemplate the consequences of creating a new category of immunity specifically for the judiciary, where no other citizen (again, even the King) enjoys such privilege.

An argument which has gained force is that to investigate a sitting judge is contrary to the doctrine of separation of powers. Here, the conviction of a judge will not terminate his tenure, as the power to terminate lies exclusively in Article 125 of the Federal Constitution.

But the natural consequence is that upon such conviction the mechanism in Article 125 will then be invoked and most likely the judge will be terminated. Now, it is argued that such a termination is unconstitutional for the domino effect stems from the executive’s decision to investigate and prosecute him.

With all due respect, such an assertion is exaggerated out of the proper context. If it is to stand, then following this line of argument no prime minister can be sued or prosecuted in Malaysia, for if any unfavourable decision from the court causes him to be subsequently voted out of the office by Parliament, then this sacking also stems from the judiciary’s decision.

Thus, the judiciary will be accused of having encroached into and influenced the exercise by Parliament of its power to test the confidence commanded by a premier. A ridiculous argument, isn’t it.

I am not attempting to pour salt in Nazlan’s wound. But it is my belief that as an admirable judge who spent his career defending the course of justice, including the due process of law, he will have faith that his name will be cleared of any taint in a dignified manner.

Overreaction from the public might not help him, but will only raise unwanted speculation and controversy that will prove its hostility and give a blow to his future career. - FMT

Tan Jun Yu is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.