KUALA LUMPUR – The Malaysian Anti-Corruption Commission (MACC) should not supersede its authority by giving opinions of potential breaches of ethics by sitting judges, constitutional lawyers said.
Lawyer Lim Wei Jiet said the agency should instead refer the matter to the proper body for immediate action.
This comes in the wake of the recent revelation by MACC that Justice Datuk Mohd Nazlan Ghazali had allegedly breached the judicial code of ethics in presiding over Datuk Seri Najib Razak’s SRC International Sdn Bhd’s case.
Lim said the anti-graft body should have reported the matter to the Judges’ Ethics Committee, as stated under The Judges’ Ethics Committee Act 2010.
“There is quite an elaborate procedure and an elaborate Judge Code of Ethics.
“MACC has no business interfering and giving its views on any potential breach, and should restrict itself to allegations of corruption,” he said in a text message to The Vibes.
MACC’s revelation was confirmed yesterday by law minister Datuk Seri Azalina Othman.
In a letter that surfaced recently, Azalina told Najib’s lawyer Tan Sri Muhammad Shafee Abdullah that MACC had on February 21 presented its report on Nazlan to Chief Justice Tun Tengku Maimun Tuan Mat over alleged breaches under the Judicial Code of Ethics 2009.
It is understood that Azalina’s letter, dated March 20, was a reply to Shafee’s three questions on MACC’s investigation into Nazlan.
Shafee questioned if the MACC report recommended taking action against Nazlan over his conduct during the SRC International Sdn Bhd trial against Najib.
Azalina was asked whether the report acknowledged the allegations against Nazlan over violation of ethical codes.
Shafee had also asked whether MACC concluded that Nazlan had a conflict of interest while presiding over the case.
Lim, who is also Muda co-founder, said Azalina’s response to Shafee gave the impression that the government agreed with MACC’s findings on the investigation against Nazlan.
“She is answering as the law minister overseeing MACC.
“I don’t think it’s an issue, but when she answers it, it gives the impression that the executive and the prime minister are agreeable with MACC’s findings,” he said.
“I think Prime Minister Datuk Seri Anwar Ibrahim and the government have to come out clear to remove any doubts on this.”
Senior lawyer and activist Datuk Ambiga Sreenevasan also voiced her dissatisfaction with MACC over the matter.
In a tweet yesterday, she said the move is a calculated plan to undermine the nation’s judiciary.
“This is, in my view, clear executive interference, exceeding of jurisdiction by MACC, and a cunning plan to undermine the judiciary.
“All because some lawbreakers refuse to be held accountable. Is this acceptable to PMX (Anwar)?” she said.
This is, in my view , clear executive interference, exceeding of jurisdiction by MACC and a cunning plan to undermine the Judiciary. All because some law breakers refuse to be held accountable. Is this acceptable to PMX? @anwaribrahim https://t.co/LZEtRrEINp
— Ambiga Sreenevasan (@Ambiga_S) April 6, 2023
On February 24, the Federal Court ruled that MACC’s investigation against Nazlan failed to adhere to protocols.
Delivering a ruling on a suit brought by three lawyers – Haris Ibrahim, Nur Ain Mustapa and Sreekant Pillai – to challenge MACC’s probe, Chief Justice Tengku Maimun pointed out that enforcement authorities are required to consult the chief justice before initiating any probe.
Tengku Maimun also said MACC’s failure to inform shows that there was a lack of bona fide on MACC’s part.
Another senior lawyer, Nizam Bashir concurred that MACC should refer the matter to the Judges’ Ethics Committee.
“If MACC feels strongly about whatever aspects of their report, nothing is stopping them from making a complaint in writing to the Chief Justice as is required by Section 12 of the Judges’ Code of Ethics 2009.
“Things can then proceed accordingly from there,” he said to The Vibes in a text message.
Nizam also explained that Tengku Maimun’s judgment follows the same practice in the United Kingdom, where the Lord Chief Justice and the Lord Chancellor exercises joint responsibility for judicial discipline.
“A statutory body in the United Kingdom, i.e. the Judicial Conduct Investigations Office (JCIO), assists the two officials in their duties in that regard.
“In Malaysia, the Judges’ Ethics Committee plays a similar role to the JCIO whenever a judge is referred to by the Chief Justice of the Federal Court.
“To initiate a complaint, as per Section 12 of the Judges' Code of Ethics 2009, complaints about a judge shall be made in writing to the Chief Justice.
“To date, I am not aware of any complaint made in writing, in whatever form that the Judges’ Code of Ethics 2009 requires, to the Chief Justice about Justice Nazlan,” he said. – The Vibes, April 6, 2023
