Only a tribunal can haul up judges, says ex-Bar chief

Ragunath Kesavan says a royal commission of inquiry can only investigate a public institution, or federal or state officer. (Bernama pic)

PETALING JAYA: The government’s move to set up a royal commission of inquiry to investigate the judiciary will go against the constitution and the doctrine of separation of powers, former Malaysian Bar president Ragunath Kesavan said.

“Establishing an RCI will then be seen as interference by the executive arm of the government in the judiciary,” he said.

Ragunath said that if there was an inquiry into the judiciary, it would also have to look into the misconduct of certain individual judges.

“Such misconduct can only be investigated by setting up a tribunal as provided for under Article 125 of the Federal Constitution,” he told FMT.

He said there was also no provision in the Commissions of Enquiry Act 1950 to investigate the judicial branch.

“An RCI can investigate the conduct or management of a public institution or a federal or state officer. I don’t think the judiciary can be lumped as a public institution,” he said.

On Feb 21, Prime Minister Dr Mahathir Mohamad said the Cabinet had agreed to set up an RCI to look into allegations of judicial misconduct after a top judge claimed abuse and interference in the judiciary.

“We are setting up the RCI and it’s up to them to look into the allegations made by the judge,” he said.

Court of Appeal judge Hamid Sultan Abu Backer had alleged that senior judges had intervened in the decision of numerous appeals.

He made the allegation in a 65-page affidavit filed on Feb 14 in support of an application by the late MP Karpal Singh’s daughter, Sangeet Kaur Deo, to declare that the chief justice (CJ) had failed to defend the integrity of the judiciary in court cases.

Hamid also alleged that scams were carried out by nominees of politicians who had entered into contracts with the government. Once the government pulled out of a deal, the private parties would take the government to court to claim compensation, he claimed.

The government has yet to announce the composition of the RCI and the terms of reference.

Ragunath said only the chief justice, after consulting the prime minister, could make representation to the Yang di-Pertuan Agong to remove a judge for alleged misconduct.

“In the present case, the attorney-general could frame specific charges against Hamid to appear before a tribunal for alleged misconduct,” he said, adding that the rules of natural justice would apply as the judge could defend himself by engaging lawyers.

He said this happened in 1988 when five Supreme Court judges were suspended before they were asked to appear before a tribunal for alleged misconduct.

The tribunal recommended to the king that Wan Suleiman Pawanteh and George Seah be removed from office while Eusoffe Abdoolcader, Wan Hamzah Mohamed Salleh and Azmi Kamaruddin were reinstated.