PETALING JAYA: Former Malaysian Bar president Datuk Ambiga Sreenevasan (Pix) said any acts or actions that may undermine the public trust must be avoided as the independence of the judiciary is built on the trust and confidence of the people.
Speaking to theSun, she said to preserve its independence the Federal Constitution has provided for the security of tenure of judges and a special procedure for their removal under Article 125.
“Parliament is not allowed to discuss the conduct of a judge without a substantive motion and there is a blanket prohibition on State Assemblies against discussing their conduct,” Ambiga said.
Additionally, she said the Federal Constitution also provides for a Code of Ethics that must be observed by every judge.
“Any complaint of a breach of the Code, has to be made in writing to the Chief Justice through a process provided for. The complaint may then be dismissed, referred to the Judges’ Ethics Committee or to the process under Article 125 of the Federal Constitution.
“Where a complaint falls outside the scope of the Code, for instance, where it involves criminal conduct, then the relevant authorities will conduct investigations.
“The reason these provisions exist is obvious. They ensure the independence of the judiciary so that judges may decide matters ‘free from any extraneous, influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason’,” she said.
Given the existence of these elaborate procedures which protect the independence of the Judiciary, Ambiga said it is not a question of whether the Malaysian Anti-Corruption Commission (MACC) has the power to investigate.
“It is my view that the right question to be asked is rather how it should be exercised such that it accords with maintaining the independence of the institution of the judiciary as enshrined in the Federal Constitution. In other words, has MACC acted in such a manner as to preserve the dignity and independence of the judiciary given the position they have under the Federal Constitution which is consistent with the rule of law.
“In my view, they have not,” she said.
Ambiga said when the complaint to the MACC was made against the judge in question, the Chief Justice (or in her absence the senior most office bearer in the Judiciary), ought to have been immediately informed.
“The veracity of the complaint must also be examined to ensure the complaint is not frivolous due to the seriousness of the consequences that follow. The investigation must then be done discreetly. If an offence is disclosed, then the Chief Justice must be informed and the law must take its course.
“Unfortunately, MACC chose to publicise the fact that a report had been lodged against the named judge who is a sitting Court of Appeal judge and went on to state they were investigating the complaint. This compounds the unfairness perpetrated against a highly respected judge.
“Having chosen to disclose the facts of the investigation, it is now incumbent upon MACC to resolve the complaint expeditiously rather than allowing it to linger without regard for the damage to the judge and the Institution of Judiciary.
“It is also incumbent on them to state publicly what the current status is. The complaint seems to be related to the receipt of funds in the judge’s account. Why is it taking so long to determine that? Will securing the bank accounts not disclose that? So, I ask again, why the delay?” she questioned.
Ambiga also pointed out that the judge who is being probed here decided the SRC case which was in fact upheld in the Court of Appeal. The matter is now pending appeal before the Federal Court.
“The complaint to MACC was preceded by a blogger of little credibility openly making spurious claims against the same judge. There were leaked meeting minutes alleging some conspiracy to speed up the cases against a few accused persons.
“Then came the report lodged with MACC and the disclosure. The discussion on this issue continues unabated,” she said.
Ambiga called these actions “acts of desperate people with a specific agenda”.
“This is evident from the quarters from which these pernicious accusations emanate. There are reams and reams of opinions on the powers of MACC to investigate but they all miss the crucial point of how MACC should exercise this power.
“No-one is above the law and judges will be the first to say this but they must be protected against frivolous and bad faith complaints.
“It is similar to if a member of the public loses a case and is unhappy with a judgement of a judge, rushes off and lodges a frivolous complaint with the MACC to put pressure on a judge or to embarrass the judge. See how this can become a problem? And how can this be repeated? Notice how it weakens the judiciary?
“This does not only affect lawyers. This affects every single one of us. Hence, the public must be clear eyed about seeing these acts of intimidation for what they are. And why it is important to stop it immediately before it creates an unhealthy precedent,” she said.
