LETTERS: The judicial winter that 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 senior jurists.
However, over the last four years, there have been encouraging signs of a judicial renaissance, like in areas of constitutional law.
It is distressing, therefore, to read about the vague and (what appear to be) politically motivated accusations against a Court of Appeal judge who tried the SRC International case in July 2020.
It is also regrettable that the identity of the judge has been disclosed by the Malaysian Anti-Corruption Commission, while 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, 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, that the allegations against him are false, baseless and malicious, has not elicited any public response from MACC.
This situation raises constitutional issues 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 the executive's 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 their 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 justice.
Five, judges enjoy immunity from 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 law 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 CJ. He shall act in a manner that promotes integrity and impartiality. He should not seek to advance his 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 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); U.P. Judicial Officers Association (1994) and (2002).
In England too, any complaint against a justice of the Supreme Court when acting in that capacity, by whoever received, shall in the first instance be passed to the chief executive of the Supreme Court.
The proposal for reform that all complaints against a judge must first be referred to the CJ for a possible disciplinary proceeding is based on the unsatisfactory situation today — that any judge trying a case involving political or sensitive issues may be intimidated by a criminal report filed against him to undermine his authority and the system of justice.
This is not conducive to judicial independence, the rule of law and constitutionalism.
SHAD SALEEM FARUQI
Tunku Abdul Rahman Chair,
Faculty of Law,
Universiti Malaya
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times