KUALA LUMPUR – Should investigations on the alleged misdeeds of judges be kept confidential? Or should the relevant authorities in Malaysia allow these to be divulged openly for the public’s knowledge?
Legal experts have asserted the importance of avoiding undermining people’s trust in the judicial branch and keeping these investigations within the confines of an investigating body.
They also noted the sensitivity and utmost care required in this matter, as a judge can be prone to accusations in retaliation to a verdict he has passed, or become the target of a smear campaign against his bench or the judiciary in general.
It is imperative, they said, that the public’s general faith in the institution of the judiciary is not broken, even as investigations are pursued according to the full provisions of the law.
Recently, Prime Minister Datuk Seri Ismail Sabri Yaakob asserted that while enforcement agencies such as the Malaysian Anti-Corruption Commission (MACC) and police are free to investigate judges over allegations of wrongdoing, such matters should not be publicised.
His stand is backed by former Malaysian Bar president Datuk Ambiga Sreenevasan who told The Vibes that public announcements of ongoing investigations against judges will lead to the erosion of public confidence in the judicial institution.
“The usual practice is for MACC reports to be kept secret according to the dictates of their legislation, as the veracity of the report must be checked to ensure there are no false reports that may damage an innocent person’s reputation,” she said.
Judges, like any other accused individual, would be left in a precarious position if filed reports are disclosed without proper checks being first done to ensure the authenticity of accusations made.
“A litigant might be upset with a judgment passed by a judge and decide to lodge a false report against the judge. If MACC publicises the report, can you imagine what this can lead to?” she asked.
Safeguarding public perception of judiciary
Ambiga, along with about 500 other lawyers and like-minded individuals, had gathered at Padang Merbok on June 17 as part of a planned march to Parliament to submit a memorandum to the government expressing their dissatisfaction with the MACC’s probe into senior judge Datuk Mohd Nazlan Mohd Ghazali.
After police barricaded the road to Jalan Parlimen, the memorandum was eventually handed over to Deputy Minister in the Prime Minister’s Department (Parliament and Law) Datuk Mas Ermieyati Samsudin, who promised to pass the document to Ismail Sabri and the minister in charge of her portfolio, Datuk Seri Wan Junaidi Tuanku Jaafar.
According to Advance Tertiary College academic director and senior law lecturer Daniel Abishegam, the highly publicised investigations into Nazlan hint at a bid to discredit the judge and the judiciary as a whole.
“Given the high profile cases he (Nazlan) has taken on previously, the natural conclusion for me is that there is a systematic attack towards him personally and the judicial institution he is part of,” he alleged.
Noting that the public’s perception of the judiciary is equally as important as its actual integrity, he said that a loss in confidence in it does not bode well for the institution.
In 2020, Nazlan was the presiding judge who convicted and sentenced former prime minister Datuk Seri Najib Razak on corruption-related charges.
General updates by authorised officers
Meanwhile, constitutional lawyer Datuk Seri Jahaberdeen Mohamed Yunoos said that while there could be situations allowing for revelation of details of a case implicating a judge, certain particulars should never be made public to preserve the benefit of doubt afforded to accused individuals.
“In public interest matters, a press conference could be held by authorised officers to announce that investigations are underway or to give a general update on the progress of a case,” he said.
“However, no names should be mentioned as the public might get the wrong impression and jump to conclusions, which would be unfair to the person being investigated.”
Stressing the importance of agencies conducting investigations discreetly, senior lawyer Salim Bashir Bhaskaran pointed out that judicial independence is fundamental to the principle of separation of powers in the demarcation system observed by a nation like Malaysia.
The former Malaysian Bar president added that no one is above the law, even as enforcement bodies have a right to investigate anyone, including judges.
Probes into superior court judges, Salim said, must therefore avoid corrupting judicial independence and the public’s conviction in the judiciary.
“Enforcement authorities cannot publicly announce investigations into a judge as the nuances of such statements have the tendency to create uneasiness and are likely to be construed as intimidation,” he said. – The Vibes, June 27, 2022
