EQUALITY before the law and the equal protection of the law is clearly enshrined in Malaysia’s Federal Constitution, hence, no one is above the law – and this includes members of the judiciary.
Members of the judiciary must be allowed to perform their judicial functions freely and fearlessly, without any external interference. In the discharge of his/her duties, a judge should be independent and impartial. He/She should be subject to nothing but the law and the command of his/her conscience. The goal of judicial independence is to ensure justice is done in individual cases and to ensure public confidence in the justice system.
Any workplace misconduct, whether in the public or private sector, warrants appropriate disciplinary action, up to and including dismissal. Likewise, judges are also subject to similar rules and the procedures are contained in the Constitution. Pursuant to Article 125(3C), judges are required to follow strictly the Judges’ Code of Ethics, which was enacted pursuant to Article 123(3B).
Article 125(3) of the Constitution provides that judges cannot be removed from office other than on the grounds stated therein, namely, when in violation of any of the provisions in the Judges’ Code of Ethics or on the grounds of the inability from infirmity of body or mind or any other cause to properly discharge the functions of his/her office.
The representation for removing a judge would be relayed to the Yang diPertuan Agong by the Prime Minister, or by the Chief Justice after consulting the Prime Minister. The Yang diPertuan Agong shall refer the representation to a tribunal and may act on the recommendation of the tribunal.
But if a judge breaches any provisions of the Judges’ Code of Ethics that, in the Chief Justice’s opinion does not warrant the judge being referred to a tribunal, the Chief Justice may refer the judge to the Judges’ Ethics Committee which is entrusted with the power to enforce the Judges’ Code of Ethics through a mechanism provided in the Judges’ Ethics Committee Act 2010.
If the committee concludes a breach has been committed, it can impose appropriate sanctions, namely, the recording of an admonition or the suspension of the judge from his/her office for a period not exceeding one year.
Hence, when a complaint involving any member of the judiciary is lodged with an external body such as the Malaysian Anti-Corruption Commission (MACC), it would be appropriate that there is proper coordination between the MACC and the head of the judiciary. The head of the judiciary should initiate an investigation following the procedure outlined earlier. If the allegations are found to be baseless, the matter should end there.
But if the allegations are established and proper disciplinary action is taken against the judge, this by itself would not absolve the judge from subsequently being investigated and charged in court for the alleged criminal misconduct.
Public confidence in the judiciary must at all times be sustained and enhanced, and this is why the disciplinary procedure in the Constitution involving members of the judiciary are strictly adhered to and cannot be undermined by any law enforcement agency.
PROF DATUK SERI DR ASHGAR ALI ALI MOHAMED
International Islamic University Malaysia