Letter to Editor
ON Oct 15, 2019, one of the headlines that could be seen was “SPRM siasat 20 aduan rasuah di jabatan kehakiman” (MACC investigates 20 complaints of corruption in the judiciary).
At that time, I don’t remember any backlash on that news. Did politicians, the Malaysian Bar, the Human Rights Commission of Malaysia (SUHAKAM), G25 jumped and criticize the Malaysian Anti-Corruption Commission’s (MACC) for investigating corruption among judges?
The fact is, the investigation, prosecution and conviction of judges is not unprecedented. There have been many cases of judges being investigated for corruption, with a number being prosecuted and sentenced.
Therefore, this whole backlash on the MACC for investigating Courts of Appeal Judge Datuk Nazlan Mohd Ghazali reeks of hypocrisy.
The G25 group says:
“In the first place, has MACC carried out a thorough investigation on the credibility of RPK’s allegation, before coming out with its media statement?” G25 asked, adding that it is pertinent to note that the judiciary has stated that it found no reason to suspect the integrity of the judge. (MalayMail, April 28).
One would not expect the judiciary to suspect the integrity of its own judges readily, or to expect it to investigate its own. Can the judiciary investigate its own judges?
For disciplinary or ethical conduct, yes, but for alleged criminal offences like corruption, murder or rape? No, it doesn’t have the powers to do so.
Sorry, but Article 125 of the Federal Constitution does not accord them the powers.
With all due respect to Chief Justice Tengku Maimun, in an impassioned speech, she said that judges are not beyond criticisms, but “the public, including politicians, must not level unfounded and scurrilous attacks against the judiciary to further their own end.”
As she made her defence of the judges, which I totally respect, never did she once say that the MACC has surpassed its powers investigating a judge, or that the investigation was “unconstitutional” or “unprecedented.”
These are the two words used by SUHAKAM and G25, parroted by some politicians on the investigations of the MACC on Appeals Court Judge Datuk Mohd Nazlan Mohd Ghazali.
If they were indeed true, won’t the Chief Justice mention it in her speech? “Unconstitutional” and “unprecedented” are big words that can’t be ignored.
The Malaysian Bar also claimed that Article 125 of the Federal Constitution provides mechanism for the setting up of a tribunal to assess the misconduct of judges, meaning, judges should not be investigated like ordinary citizens.
However, it is clear from the Article that it pertains to mechanism for removal of judges due to disciplinary matters and not criminal offences.
As explained by UiTM legal adviser Prof Dr Haidar Dziyauddin (The Star, April 29): “Article 125 (3A) allows for a tribunal to be set up to look into the removal of a judge who is alleged to have breached the code of ethics. The tribunal does not have the power to investigate claims of criminal activities.”
The tribunal also cannot prescribe punishments like jail sentences or fines.
So, who is empowered to investigate? Obviously, law enforcement authorities like the MACC and the Police.
Yes, for better or worse, they are the entities created to investigate alleged corruption and criminal offences, be it on civil servants, members of Parliament, peon or judges.
Talking about Members of Parliament, the accusation levelled on the MACC is that it violated the principles of separation of powers – among the three institutions namely the Judiciary, the Legislative and the Executive.
They said it unconstitutional for MACC to investigate the Judiciary because it is tantamount to interference of the Executive wing into the Judiciary.
So, by the same argument, are they saying that the police and MACC cannot investigate Parliamentarians? Because doing so would be interference of the Executive in the Legislative?
Please, no double standards.
According to former Law Minister Zaid Ibrahim, the MACC probe into the judge is not a violation of the principle of separation of powers as it is clear the agency’s task is to investigate.
The MACC has also twice reiterated that its investigations is not based on blogger claims on social media platforms.
According to its press statement, it is based on formal complaints and reports lodged at MACC, not once, but three reports over the last month, and it is duty bound to investigate upon validating them.
So please, allow it to do its job.
After all, if you remember, it was also the MACC who did an excellent job investigating the SRC case that helped the court to convict Datuk Seri Najib Razak to 12 years jail sentence and a RM210 mil fine.
This sentence was upheld again at the Appeals Court. If the MACC performed shoddy investigations, the courts would have thrown the case out, simple as that.
Do you think it is only the judiciary that gave us this conviction? Because of the principle of ‘separation of powers’, the MACC has to do a thorough and impeccable investigation, the Attorney General has to give consent to prosecute, and the Deputy Public Prosecutors have to work with the MACC prosecutors to secure a conviction, working relentlessly through three changes of government. It is a team work of agencies maintaining separate jurisdictions.
The SRC and the 1MDB are very complex cases involving international cross border layering to hide the proceeds of illicit gains.
If you follow the news, it is also the MACC that managed to recover over RM20 bil of assets from the 1Malaysia Development Bhd (1MDB), which are returned to the people of Malaysia. This is far above the global average of 30% recovery rate. Give credit where it is due.
Do you think that after all that work, years of ploughing through thousands of documents, gathering evidence from all over, spending thousands of men hours to help secure the conviction, the MACC wants to see a retrial if indeed Judge Datuk Nazlan was found to be complicit?
No matter how badly we want a certain “shameless boss” to serve his sentence, we cannot ignore the legal processes of the country.
If there is any evidence that implicated the judge, it has to be investigated by a competent authority that is set up precisely for this job.
At this moment, only the MACC can clear Judge Nazlan’s name conclusively. If I were him, I would welcome the MACC probe on me. And once I am cleared, no one would believe the idiot blogger or any half-witted politicians and the groups that echo them. – April 30, 2022
Andrew SH Tan,