Former Malaysian Bar presidents lament 'assault' on judiciary

 

As the judiciary comes under scrutiny, former Malaysian Bar presidents have decided to weigh in on two points pertaining to the matter.

In a joint statement, they first voiced support for the current Malaysian Bar president Karen Cheah – in her stance that one dissenting judgment in the recent review of former premier Najib Abdul Razak’s SRC International trial is no ground for a future review or retrial.

Secondly, the group also expressed concern about the attacks levelled against Judge Mohd Nazlan Mohd Ghazali over an alleged breach of the Judges' Code of Ethics, and having a conflict of interest while presiding on the SRC International case.

These, the former presidents argued, amount to attacks against the judiciary and judges.

Below is the statement in full:

We, the undersigned wish to express our support for the statement issued by the President of the Malaysian Bar on April 4, 2023, in relation to the so-called “leaked” document from the MACC and the attacks against the Malaysian judiciary and judges thereof.

The continuing intimidation of the judiciary by irresponsible actors in connection with the SRC case is a danger to the rule of law in our country particularly where 14 judges have considered the SRC case, and 13 of them have handed down reasoned judgments upholding the convictions.

Further, the issue of the purported conflict of interest of Nazlan was canvassed and argued by the lawyers for Najib Abdul Razak before two separate panels of the Federal Court (in the main appeal against conviction, and subsequently in the review application pursuant to Rule 137 of the Rules of the Federal Court 1995).

On both occasions, the Federal Court had considered the matter and decided there was no merit in the allegation.

It is noted in this regard that the sole dissenting or minority decision in the review application did not offer any opinion on the issue of the alleged conflict of interest.

Thus, the allegation of conflict of interest against Nazlan has been decided with finality. The principle of “res judicata” applies and the matter cannot be reopened.

Court of Appeal Judge Mohd Nazlan Mohd Ghazali

Certainly, it cannot be reopened as a collateral attack in the media or by any other means. To do so is a serious undermining of the administration of justice.

Another concern is the “leaked” MACC letter dated Feb 20, addressed to the chief justice that went viral and which was then released to the press containing a purported “finding” or “view” by MACC that Nazlan was in breach of the Judge’s Code of Ethics.

This constitutes a serious transgression by MACC of their authority and jurisdiction under their governing Act. The MACC letter concerns issues that are not within the purview nor competence of the MACC.

It is clear that the MACC cannot make findings nor come to a view nor decide on matters that fall outside their jurisdiction but which are squarely within the purview of the judiciary.

Moreover, it is astounding that such a sensitive and confidential letter could have found its way into the public domain, and raises serious questions about the confidentiality of MACC processes, which warrant immediate investigation.

We note that a letter from Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said to Najib's lawyers was similarly leaked to the press containing a repetition of MACC’s questionable “finding” or “view”.

It is unusual that a minister has seen fit to respond and provide information to a litigant in respect of MACC’s letter to the chief justice. This reeks of interference.

Attorney-General Idrus Harun

We further wish to express our profound disappointment at the silence of the attorney-general on both: -

(a) on the conflict issue which has been decided conclusively by the Federal Court; and

(b) in failing to publicly clear Nazlan of the scurrilous allegations of corruption (which even Najib had withdrawn).

More so, as the attorney-general was himself a former Federal Court judge and must surely appreciate the devastating effect of his silence upon the judiciary and the sanctity of the administration of justice.

This case has given rise to an unacceptable level of intimidation against judges who are doing their duty to uphold the law without fear or favour.

They are facing constant harassment, and are subject to machinations and schemes by some with vested interests.

All of this must stop as it does not serve the rule of law or the country. Those who have been found to have committed offences must pay for it. That is the Malaysian criminal justice system.

There should be no preferred class of people in this country who are permitted to tear down an institution to escape the law.

Everyone is said to be equal before the law. Does anybody believe that, if it is not a powerful political figure who is involved in the SRC case, the current attacks on the judiciary will occur?

Do Malaysians want to see, again, our justice system compromised by powerful politicians?

Finally, one may criticise a judgment of the court, but this must be done in temperate terms for a proper purpose, and without casting any aspersions or ascribing improper motives against a judge. This would be contemptuous, and liable to legal action.

Responding to MACC’s Ahmad Rosli Mohd Sham

The response from MACC misses the wood for the trees. The two “surat pekeliling” (government circulars) referred to by the MACC committee are wholly inapplicable. They apply only to civil servants.

(Ahmad Rosli Mohd Sham is MACC’s Operation Review Panel chairperson).

Judges of the superior courts (High Court, Court of Appeal and Federal Court) are not civil servants.

In any event, such circulars cannot override the MACC Act. MACC only has the power to investigate alleged corruption and matters related thereto. This is clearly set out in the MACC Act.

MACC does not have any power nor jurisdiction to investigate, let alone make findings or come to a view of an alleged conflict of interest in a court matter and breaches of judicial ethics.

The position taken by MACC via its committee is untenable and serves to confuse the issue and the public.

Furthermore, and as stated earlier, this precise issue has been decided conclusively by the Federal Court and any reference to it as if it is a live issue is wholly improper.

The statement is signed by:

• VC George

• Param Cumaraswamy

• Zainur Zakaria

• Cyrus Das

• Mah Weng Kwai

• Kuthubul Zaman Bukhari

• Yeo Yang Poh

• Ambiga Sreenevasan

• Lim Chee Wee

• Steven Thiru

• George Varughese

• Fareed Abdul Gafoor

• Salim Bashir

• AG Kalidas

- Mkini