From Hafiz Hassan
Former law minister Zaid Ibrahim has called for Prime Minister Anwar Ibrahim to explain what law dictates that the Malaysian Anti-Corruption Commission (MACC) or the police must get the Chief Justice’s consent to investigate judges.
Now, why must it be the prime minister’s responsibility to give an answer over a decision handed down by a court?
The principle of the separation of powers, which distributes the power to govern among the executive, legislature, and judiciary, means that the executive must respect any decision or ruling made by the court.
Zaid should know better. He should also know that judges interpret the written law, the highest of which is the Federal Constitution.
In the ruling on a suit brought by three lawyers to challenge the investigation by the MACC into claims of an unexplained sum of more than RM1 million in Justice Nazlan Ghazali’s bank account, the Federal Court was answering two constitutional questions that required answers directly from the apex court.
Whether, having regard to Article 4 and Part IX of the constitution, criminal investigation bodies, including but not limited to the MACC, are only legally permitted to investigate into judges of the High Court, Court of Appeal, and the Federal Court that have been suspended pursuant to Article 125(5) of the constitution?
Whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal and the Federal Court pursuant to Article 145(3) of the constitution, having regard to Article 4 and Part IX?
If Zaid had read the full judgment of the apex court, he would find the short answers to the questions are “No” to question one and “Yes” to question two.
However, the Federal Court did not think that the answers above were the end of the matter. The court considered it necessary to clarify its judgment as it concerned the principle of judicial independence.
Chief Justice Tengku Maimun Tuan Mat, in delivering the judgment, said, “While this case seeks to question the constitutional limits of the respondents and other criminal investigative bodies to investigate superior court judges, our answers to the (questions) in a constitutional sense are not otherwise a broad sanction for the said bodies to have a free hand in criminal investigations.
“This observation of ours is borne out by the real and apparent concerns raised by the appellants and the Bar on the significance of separation of powers, the bane of democracy, and attacks on the independence of the judiciary.”
The learned Chief Justice continued, “The cases on the importance of judicial independence are trite.
“The fact is that while the (MACC) and other criminal investigative bodies are constitutionally entitled to investigate and the public prosecutor to commence criminal proceedings against superior court judges, those powers must be exercised in good faith and only in genuine cases.
“Any abuse of those powers, such as using them for collateral purposes not only constitutes possible offences such as abuse of power or obstruction of justice but also constitutes actionable complaints through the courts’ statutory review powers.”
The Chief Justice reminded criminal investigative bodies that they “are bound to comply with the law”.
The onus on them to comply with the law is even more onerous when it concerns a serving judge because not only are they bound by the said judge’s guarantees of fundamental rights under the (constitution), due process of the law governing their powers and criminal procedure, but also the prohibition against judicial interference.
Judicial independence is a sacrosanct concept. Judges and the entire judicial process must be free to perform their functions freely and independently to arrive at a just and fair decision.
As the Chief Justice rightly alluded, the fact remains that “no matter which way one looks at it, criminal investigative bodies are executive bodies, and thus, investigations into judges can amount to judicial interference. This is the case whether the crime alleged is against or tied to a judicial act or an extra-judicial act”.
Accordingly, when criminal investigative bodies investigate serving judges, they are not to violate the doctrine of judicial independence, a sacrosanct constitutional principle.
The scheme of the constitution requires that when investigating a criminal complaint, the relevant criminal investigative body must first consult the Chief Justice before commencing any investigations into a judge.
The above does not mean that the Chief Justice has the power to sanction or stymie any investigations, rather, simply the right to be informed on what is transpiring with a judge and hence, the judiciary as a whole.
The failure to consult the Chief Justice, even if the Chief Justice is the subject of a criminal complaint, is thus a very strong indication of a lack of bona fide in a criminal investigation.
It was in the light of the above that the Chief Justice saw fit to list out a set of protocols that must be followed when a judge is investigated, the first of which is for the relevant criminal investigative body to first seek leave from the Chief Justice to investigate any judge.
The Chief Justice might know details that the investigative body does not and, in any case, informing the Chief Justice is necessary as a safeguard of judicial independence.
Perhaps Zaid should take the advice of former chief justice Arifin Zakaria for the public to read full judgments of the courts before making comments.
Hafiz Hassan is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of FMT.