Duty not to be judge and jury

I WOULD like to comment on a matter that blew up in the press recently pertaining to the functions of the Courts.

The Courts are divided into Subordinate Courts and Superior Courts. The latter comprise the High Courts, Court of Appeals and the Federal Court.

The High Courts are of Malaya and Sabah and Sarawak (which used to be known as High Court of Borneo).

The decisions which led to Malaysians questioning the functions of the Courts have come from the Superior Courts.

There was an uproar against a media statement issued by the Judiciary on Nov 26. In that statement, the Judiciary noted that it considered an allegation of interference as a serious breach of law and ethics.

The Judiciary announced that an internal investigation was conducted, and all the relevant persons were heard.

The public did not feel confident that the Judiciary would be able to take any action under the Judges’ Ethics Committee Act 2010 and the Judges’ Code of Ethics 2009 into the alleged misconduct of the retired judge, because the said judge had retired.

The Judiciary also had to suspend the internal investigation because police investigations were under way. In any event, the Karpal Singh appeal is still pending enroute to the Federal Court.

Judges are the final protectors of the public against aggression from the Executive arm of Government. Premised on this reason, and to ensure their independence, judges are granted security of tenure. Therefore, the country has made it quite difficult to remove a sitting judge.

Article 125 of the Federal Constitution only caters to provisions which allow the Chief Justice to take action against sitting judges. The law, therefore, gives the Chief Justice very little power when it comes to retired judges.

To put it into context, Article 125(3) of the Federal Constitution allows the Chief Justice (after

consulting with the Prime Minister), the power to recommend to the Yang Di-Pertuan Agong to appoint a tribunal to remove a judge from office. Article 125 does not cater to any other course of action.

Article 125(3B) confers the Chief Justice the power to prescribe a code of ethics. This ought to be read with the Judges’ Ethics Com­mittee Act 2010 and the Judges’ Code of Ethics 2009.

It will be noted that the Code is silent on action against retired judges. This is only proper as any allegations in the nature of interference is a criminal matter which should be left in the hands of the police and the prosecutors.

Many will notice that the law leaves little room to the Chief Justice when it comes to taking action against retired judges. Perhaps this is for good reason.

The interference by any person with the administration of justice is a crime.

Section 186 of the Penal Code prohibits any person from obstructing any public servant from discharging his public functions.

Under Section 21 of the Penal Code, “public servant” includes “every Judge”. So, any person, be he or she a judge, who interferes with a judge’s functions, can be charged and tried for “obstructing a public servant”.

One real life example of this is what happened to the former Chief Justice of Trinidad and Tobago who was, at one point in time, arrested on the grounds of having interfered with the administration of justice.

It was alleged that the said Chief Justice had attempted to influence another judge to determine the outcome of politically motivated cases in a certain way. He was charged for the Malaysian equivalent of “obstructing justice”.

No matter how enraged we may feel at allegations raised against a judge, we must follow the law. The duty to investigate and charge “corrupt judges” lies with the police and prosecution respectively.

Therefore, when the Judiciary stated that it must suspend investigations pending police investigations, that was the sensible thing to do.

Otherwise, the Judiciary would be playing police, prosecutor and judge at the same time, which is unbecoming of a jurisdiction that practices the cardinal principle of separation of powers.


Former Justice of the High Courts of Malaya & Borneo