Remember the judge’s poison pen letter scandal of 1996, Bar Council?

By Kassim Noor Mohamed

I refer to the Bar Council’s media statement on April 3 and the joint statement by Bersih and Gabungan Tindak Balas Malaysia on April 11.

As an ardent observer of current issues relating to the enforcement sector, I wish to highlight several misconceptions and misinformation that have caused confusion and misunderstanding, albeit from a layman’s perspective.

Although much has been argued in news and media pieces published by many authors recently, one important contention raised is that the Malaysian Anti-Corruption Commission (MACC) cannot initiate an investigation into a superior court judge.

This contention cites the doctrine of separation of powers and claims that an investigation by any enforcement body into a member of the judiciary, especially on matters relating to judicial ethics, is tantamount to interference with the judiciary.

Does this line of argument have any basis with reference to the Federal Constitution, the highest law of the country? Several constitutional experts have been quoted in the media recently rebutting this view.

One such expert is Wan Ahmad Fauzi Wan Husain, an associate professor, who was quoted as saying offences that touched on ethics and disciplinary issues do not preclude the Attorney-General from invoking his powers under Section 145 of the Federal Constitution to prosecute for the commission of a criminal offence.

He argues, based on the principle of equality of the law, that no one should be exempted from being investigated.

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He says judges who have been investigated or charged under existing laws must be allowed to complete that process first before any proceedings under Article 125 that deal with ethics and disciplinary issues, which is an internal process, takes place.

Evidently, this argument was affirmed by the judgment of the Federal Court, chaired by Tengku Maimun Tuan Mat, that reiterated the constitutional entitlement of enforcement bodies like the MACC to investigate superior court judges.

In the case of Haris Ibrahim & anor v Azam Baki & anor (2023), the following questions of law were posed to the Federal Court:

Are criminal investigation bodies, including the MACC,  only legally permitted to investigate judges of the High Court, Court of Appeal and the Federal Court after they are suspended pursuant to Article 125(5) of the Federal Constitution?

Is the Public Prosecutor empowered (under the constitution) to institute or conduct any proceeding for an offence against serving judges of the High Court, Court of Appeal and the Federal Court?

The Federal Court judgment answered the first question “No” and the second, “Yes”.

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Although the judgment also went on to state that a set of protocols – which involved informing the chief justice before commencing investigations – should have been followed, the seven-judge panel said:

“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 the court admitted that the “chief justice cannot summon eyewitnesses or conduct an independent inquiry without the police.” Neither can she “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 (genuine complaints) from the chaff (spurious allegations)?”

The above leads us to the second issue raised by those claiming that the MACC has neither the jurisdiction nor competency to investigate into judges’ ethics.

Going by the logic of the Federal Court judgment, if the MACC is not permitted to conduct investigations on complaints of corruption or misconduct on judges, how would the next presiding authority determine whether there is any basis to the allegations in order to suspend the judge under Article 125(5), of the Federal Constitution since it cannot conduct its own investigation?

It may be true that the MACC has no prerogative in investigating breaches of judicial ethics. But, if the MACC received formal complaints relating to allegations of corruption involving a superior court judge, should it not investigate at all? Does the law not prescribe that the commission must investigate all allegations of corruption?

How would anyone know if the allegations have basis or otherwise without the MACC investigating the allegation?

Primarily, one should understand that the MACC merely reports its findings. The commission has no power to order or instruct that proceedings be brought against an accused. This is in line with the principle of separation of powers.

Therefore, it is still up to the chief justice whether to convene a tribunal or a judges ethics committee to look into the matter. The MACC should not be faulted for carrying out its legal obligation to conduct the necessary investigation.

This is not the first time the ethics of a superior court judge has been called into questioned.

In 1996, a High Court judge wrote an anonymous letter accusing former chief justice Eusoff Chin of ethical misconduct. None other than the Bar Council called for the Anti-Corruption Agency (the predecessor of the MACC) to investigate the matter.

Strangely, now it is the Bar Council which is so vehemently opposed to investigations by the MACC into allegations of misconduct against another judge.

More baffling is that there has been grave misinformation about MACC announcing its investigation into the judge in question, which was first reported on April 22, 2022.

At the time, allegations were rife that the judge was being probed, as a number of reports and memoranda by people and groups surfaced urging the investigation.

We cannot lay any fault on the MACC chief for confirming that investigations were ongoing, since the issue was already in the public domain and the media was hounding him for confirmation. Merely confirming to a single reporter that the probe was ongoing is not tantamount to announcing it to the world in bad faith.

With that confirmation, the Bar Council and the then opposition criticised MACC for supposedly breaching the separation of powers by investigating the judiciary.

It was after being on the end of multiple attacks that the MACC issued a press statement on April 28, 2022, defending its mandate to investigate “public officers” which by definition includes judges, as stated in the MACC Act 2009.

Again, simply stating that it is following the procedure laid down by the law does not amount to smearing the good name of the judge.

Finally, investigating a single judge does not amount to an attack on the entire judiciary.

Although the judge in question had recently presided over a high-stakes case involving someone everyone wants to see convicted, it would be wrong to equate the investigation into the judge with attempts to exonerate the culprit.

Perhaps the Bar Council and its allies have forgotten that it was the MACC that successfully secured the conviction after years of thorough investigation into that very case.

We often hear how “justice must not only be done but must be seen to be done”. To that, we must also add, justice has to be based on facts, not emotions and perceptions. - FMT

Kassim Noor Mohamed is vice-chancellor designate at the Enforcement Leadership and Management University.

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