The Judiciary: Avoiding Any Appearance of Intimidation

The “judicial winter” that had descended on our land in 1988 took three decades to thaw. That year saw the suspension of six top judges and the improper removal of Lord President, Tun Salleh Abbas and two other senior jurists. However, over the last four years, there have been encouraging signs of a judicial renaissance. In some areas like constitutional law, scintillating developments are in the offing.

It is distressing, therefore, to read about the vague and (what appear to be) politically motivated accusations against the Court of Appeal judge who tried the SRC case in July 2020.

It is also regrettable that the identity of the judge has been disclosed by the Malaysian Anti-Corruption Commission (MACC) while the names of the accusers remain secret - perhaps due to Section 7(1)(a) of the Whistleblowers Protection Act 2010.

Due to the anonymity afforded by the Act, the accusers cannot be hauled up for contempt of court even if their allegation is false and amounts to a scurrilous attempt to discredit the judge and undermine public confidence in our system of justice.

What is also regrettable is that the counter-report by the judge concerned that the allegations against him are false, baseless and malicious, has not elicited any public response from the MACC.

The overall situation raises issues of constitutional concern and necessitates a proposal for reform of the law.

Looking at the constitutional scheme of things a few cardinal principles are evident. First, judges of the superior courts are not members of the public service under Article 132 of the Constitution. Their discipline, suspension and dismissal are not entirely in executive hands. The Chief Justice is closely involved in the process.

Second, Article 125(4) and the Judges’ Ethics Committee Act 2010 provide that in disciplinary cases, judges must be tried by a Tribunal or Committee consisting solely of fellow judges. Parliament and the executive cannot on their own dismiss a judge.

Third, judges are insulated from politics. Under Article 127, no parliamentary discussion of judicial conduct is allowed unless it is on a substantive motion supported by one-quarter of the total members.

Fourth, under Article 126, judges have the power to punish anyone for contempt of court for any words or acts that are calculated to bring a judge into disrepute or lower his authority or interfere with the due course of justice.

Five, all judges enjoy immunity from the civil and criminal process in the performance of their judicial functions. However, judicial immunity relates to the function and not to the person. When a judge acts in his personal or non-judicial capacity or commits a crime like bribery, he is answerable to the ordinary law. The Anti-Corruption Act applies to judges as it applies to all other persons.

The MACC is correct in observing that it has the authority to investigate allegations of corruption against judges. However, given the existence of the Judges’ Code of Ethics 2009, which has a constitutional basis under Article 125(3B), it is submitted that MACC’s powers must be read in the light of Section 12 of the 2009 Code. Under that section, any complaint against a judge for breach of the Code must be made in writing to the Chief Justice. The CJ then has the power under Article 125 clauses (3), (3A), (3B) and (6) to recommend disciplinary proceedings and suspension.

The Code is not merely about minor disciplinary infractions. It mandates that a judge must be free from any extraneous influence or inducement. He shall declare all his assets to the Chief Justice. He shall act in a manner that promotes integrity and impartiality. He should not seek to advance his private interests. He should not conduct himself in a manner which brings disrepute to his office as a judge.

To the submission that the Code of Ethics is inadequate to deal with a crime like corruption, it is submitted that a disciplinary proceeding, whether successful or unsuccessful, is no bar to a subsequent criminal proceeding in a separate forum under a separate law. The subsequent proceeding will not amount to “double jeopardy” which is prohibited by Article 7(2) of the Federal Constitution.

We are informed by lawyer Puthan Perumal that in India where the law is similar to Malaysia, there are binding Supreme Court decisions that any contemplated investigation by any investigatory agency must get the prior nod of the Chief Justice: K Veeraswami(1991); and U.P. Judicial Officers Association (1994).

[COMMENTARY] The commentary is extracted from the Consti Bulletin, which is a collaboration between the Faculty of Law, Universiti Malaya and the Malaysian Bar Council.

In this commentary, titled 'The Judiciary: Avoiding Any Appearance of Intimidation', current holder of the Tunku Abdul Rahman Chair at Universiti Malaya, Emeritus Prof Datuk Dr Shad Saleem Faruqi pens his thoughts on an allegation involving a SRC trial judge receiving RM1 million in his bank account.