Tribunal better than RCI to probe judicial misconduct, says lawyer

(AFP pic)

PETALING JAYA: A lawyer has suggested that a tribunal be formed to investigate claims of judicial misconduct instead of a royal commission of inquiry (RCI) as announced.

K Balaguru said the claims, which were made by a sitting judge, are against specific members of the judiciary and not the judiciary as a whole.

He said an RCI would not be able to probe individual members. “The judiciary itself cannot commit misconduct,” he said.

“If a minister is guilty, would you say the government needs to be investigated? It doesn’t work that way. So I propose a tribunal.”

Balaguru said a tribunal would be able to make recommendations to the king as to whether or not a judge should be removed from office. It would then be up to the king to decide what to do.

“An RCI, on the other hand, does not seem to punish or make recommendations as well as a tribunal. An RCI should not be investigating judicial misconduct — that is the job of a tribunal,” he said.

Adding that the Federal Constitution has already laid out how to deal with judicial misconduct, he asked what the prime minister and the de facto law minister want from the RCI.

“I am sure the attorney-general (AG) is aware that judicial misconduct is not synonymous with judiciary misconduct.

“Judicial misconduct is misconduct by a judge. The judiciary cannot commit misconduct.”

Earlier today, Prime Minister Dr Mahathir Mohamad said the government will go ahead with the RCI. He said there were many different opinions but the people generally want an RCI.

“Regardless of what I believe, what is important is that the people want it.”

The Cabinet agreed to its formation three months ago following an affidavit by Court of Appeal judge Hamid Sultan Abu Backer outlining alleged misconduct by several unidentified judges.

Hamid claimed that senior judges had intervened in the decision of numerous appeals and abetted in scams carried out by nominees of politicians who had entered into contracts with the government.

De facto law minister Liew Vui Keong subsequently said that execution of the RCI lies with the AG. AG Tommy Thomas, however, said he is “not involved” in the proposed RCI, and that it is being handled by the ministers concerned.

‘RCI is a waste of money’

Lawyer A Srimurugan.

Lawyer A Srimurugan, however, disagreed with Balaguru. He said there is no need for a tribunal as the Malaysian Anti-Corruption Commission (MACC) has the power to investigate and collect evidence.

“A tribunal cannot be set up where there is no provision or law allowing it to be set up,” he said.

“A tribunal can only be set up to remove a serving judge if there is an allegation of judicial misconduct.”

He also criticised Putrajaya’s decision to hold the RCI, saying it would be a waste of taxpayers’ money.

He said MACC can recommend that the AG bring forth charges if there is enough evidence to substantiate claims of corruption.

“There’s no need to set up an RCI as the nature of the allegations has already become public,” he said.

“MACC should instead interview Hamid and demand that he gives evidence for his claims,” he added, referring to Hamid’s statement that he would only testify at an RCI.

He cautioned that setting up an RCI, when there are already mechanisms in place to investigate such crimes, would be seen as executive interference.

“It’s better to let an independent agency take the necessary action.”

He also questioned whether an RCI would bear fruit, saying “nothing much” had come from the 2007 inquiry into the VK Lingam case to probe allegations of intervention in the judicial appointment process.

Lawyer Lim Wei Jiet said there is a difference between the investigation of an RCI and that of the police and MACC.

Lawyer Lim Wei Jiet.

He said an RCI would have a wider mandate to make recommendations for improvements in judicial integrity.

Balaguru meanwhile disagreed with law minister Liew for implying that the delay in forming the RCI is justified as former Sabah chief minister Yong Teck Lee had filed an originating summons (OS).

“If Yong wants, he can take out an injunction order, but if he wants to stop the RCI then he needs a court order. So, Liew should not take the OS into consideration,” he said.

Yong initiated legal action in late April to stop the government from setting up the RCI. He is seeking a declaration that the government’s decision to set up the RCI is unconstitutional and in breach of the principle of separation of powers.

Lim also disagreed with Liew’s suggestion that Putrajaya wait for the outcome of Yong’s OS, saying there is no legal necessity for this as there is no stay granted by the High Court pending any decision.

He added that such a contentious issue could be appealed all the way to the Federal Court, which could take more than a year to resolve.

“I don’t think that is consonant with the public’s desire for judicial reform and the Cabinet’s decision which was reached in February this year,” he said.