Of hypocrisy and contradictions

Kassim Noor Mohamed, Malay Mail Online

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 (Bersih) as well as Gabungan Tindak Balas Malaysia (GBM) 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 of the issues 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 separation of powers, that any enforcement body being part of the executive branch investigates a member of the judiciary, especially on judicial ethics, is tantamount to interfering into 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. One such expert is Assoc Prof Datuk Wan Ahmad Fauzi Wan Husain who was quoted recently (Sinar Harian, April 10) stating that offences that touched on ethics and disciplinary issues cannot preclude the use of the Criminal Procedure Code, the Malaysian Anti-Corruption Act, other existing laws and the powers of the Attorney General as the Public Prosecutor under Section 145, Federal Constitution. He argued that based on the principle of equality of the law, no one should be exempted from being investigated. Judges who have been investigated or charged under existing laws must complete the process first before any proceedings under Article 125 that deals with ethics and disciplinary issues takes place, which is an internal process.

Evidently, this argument is affirmed by the Federal Court judgment, chaired by Tun Tengku Maimun Tuan Mat that reiterated the constitutional entitlement of enforcement bodies like the MACC to investigate Superior Court Judges. Here we can refer to the Federal Court judgment (24/02/2023) on the civil suit brought by Haris Fathillah bin Mohamed Ibrahim & Anor vs. Tan Sri Azam Baki & Anor (Civil Reference No: 06(RS)-4-07/2022(W)) whereby the appellants declaratory reliefs are framed in the form of the following questions in the judgment:

Firstly, whether, having regard to Article 4 and Part IX, Federal Constitution, criminal investigation bodies, including but not limited to the MACC, are only legally permitted to investigate into judges of the High Court, Court of Appeal and the Federal Court that have been suspended pursuant to Article 125(5), Federal Constitution?

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), Federal Constitution, having regard to Article 4 and Part IX, Federal Constitution?

Here, the Federal Court Judgement 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, i.e., informing the Chief Justice before commencing investigations, the seven-panel judges 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 that the “Chief Justice cannot summon eye-witnesses 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 judge’s ethics. Going by 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 who admittedly does not have the competency to “summon eye-witnesses or conduct independent inquiry or verify bank records” know and determine whether there is any basis to the allegations in order to proceed with the suspension of the judge under Article 125(5), of the Federal Constitution?

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 on a Superior Court judge, should it not investigate at all when the law prescribes for the Commission to investigate any allegations corruption? And how would anyone know if the allegations are baseless without the Commission investigating the allegation?

Primarily, one should understand that the MACC report is merely its findings and it has no power to order or instruct proceedings against the accused. This is following the principle of separation of power. Therefore, it is up to the Chief Justice whether to commence a tribunal or a Judges Ethics Committee proceeding to look into the matter or to consider the case closed. Hence, the MACC should not be faulted for conducting an investigation under its constitutional right.

Secondly, this is not the first time, the ethics of a Superior Court Judge has been questioned. One should remember the case in 1996, when a High Court judge had written an anonymous letter alleging, among others, the former Chief Justice Tun Eusoff Chin of ethical misconduct. The judge was urged by none other than the Malaysian Bar to report to the then Anti-Corruption Agency (ACA) to investigate the matter. Strangely, now the same Malaysian Bar are so vehemently opposed to the more empowered MACC now to investigate allegations into a High Court judge’s misconduct.

Thirdly, and more baffling, there has been grave misinformation about the MACC announcing its investigation on the High Court judge, allegedly in bad faith. The first time the issue was confirmed was in a report on the Star news media dated April 22, 2022. At that time the media was rife with allegations of a High Court judge being probed by the MACC as a number of reports and memorandums by individuals and groups have already been issued urging the MACC to investigate the judge.

We must not lay fault on the Chief Commissioner for confirming the investigation if the issue is already out in public and media was hounding him for a confirmation. By merely confirming the probe to a single reporter, does not tantamount to announcing to the world in bad faith. With that confirmation, the Bar Council and the opposition then was on to the MACC for supposedly breaching the separation of powers for investigating the judiciary.

It was after the attacks on the MACC, that it issued a press statement on April 28, 2022, defending its mandate to investigate “public officers” which include judges in the definition, as stated in the MACC Act 2009. Again, simply stating that it is following the procedure based on the law, by no means is an announcement in design to smear the good name of the judge.

Finally, investigating one judge does not amount to attacking the entire judiciary. Just because the judge happened to preside on a high-stake case that everyone wants to see the main culprit convicted, does not mean that any probe on that judge tantamount to attempts to exonerate the culprit. Perhaps the Bar and its allies have forgotten that it was the MACC who has put in years of thorough investigation on that very case that has successfully brought about a strong 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 is the vice-chancellor (designate) at the Enforcement Leadership and Management University (ELMU).