KUALA LUMPUR, April 25 — The Malaysian Anti-Corruption Commission’s (MACC) reported launching of an investigation against the trial judge — who heard former prime minister Datuk Seri Najib Razak’s case of RM42 million misappropriated from SRC International Sdn Bhd — would undermine the independence of the courts and is unconstitutional, the Malaysian Bar has said.

The Malaysian Bar pointed out that there is already an existing mechanism in the Federal Constitution to deal with alleged ethical breaches by judges, and also cautioned that Malaysia should not give in to "keyboard warriors” who carry out online attacks on the courts’ independence.

The Malaysian Bar, which is the professional legal body which represents 20,556 lawyers in Peninsular Malaysia and the federal territories as of early February, was defending the judiciary from recent attacks and standing in support of Malaysian judges who are independent and with integrity.

Malaysian Bar president Karen Cheah Yee Lynn said the legal body was appalled with the turn of events where the MACC was reported to have launched an investigation into the SRC trial judge Datuk Mohd Nazlan Mohd Ghazali based on reports.

Cheah noted that it is not publicly known who had lodged the report to the MACC or when such a report was lodged, but said what is obvious is that there should be "no double standards” by the authorities in this matter.

Based on the need for "no double standards”, the Malaysian Bar demanded that the police carry out investigations on Nazlan’s police report against blogger Raja Petra Kamarudin’s April 20 blog post. Nazlan’s police report had said Raja Petra’s blog post contained "false, baseless and malicious” allegations intended to interfere with the justice system and judiciary.

"The Malaysian Bar further states that the MACC investigation violates the doctrine of separation of power and also undermines the independence of the judiciary, and is unconstitutional,” Cheah said in the statement dated yesterday and made available to Malay Mail.

Cheah highlighted that there is already a constitutional alternative available to handle alleged misconduct involving judges.

"There are mechanisms in place to deal with this issue, and pending the determination is such an issue, any attempts by irresponsible parties can be seen as to stab public confidence in the judiciary. 

"Article 125 of the Federal Constitution provides a specific pathway which allows for complaints of judicial misconduct to be addressed in a manner that ensures continued public confidence in the judiciary,” she said.

A check by Malay Mail of the Federal Constitution shows that Article 125 contains provisions for a code of ethics for judges at the High Court, Court of Appeal, Federal Court, as well as actions or procedures to be taken when the code of ethics is breached — including referral to a tribunal consisting of at least five persons including the top four judges of the country.

In light of the existing alternative constitutional mechanism, the Malaysian Bar also highlighted that a MACC probe could create wrong perceptions that would hurt public confidence in the judiciary’s independence.

"Such purported investigations by MACC will have an impact on the judiciary as it undermines the rule of law and creates intimidation and a climate of fear. This perpetuates insecurity and suspicion amongst our citizenry on the judiciary, and does not augur well for the growth and maturity of our nation.  

"The mere possibility of such an investigation by MACC, let alone an actual investigation, would undermine, and be perceived as undermining the judicial independence,” Cheah said.

Cheah also noted that this could lead to misconceived perceptions by the public that judges would have to ensure that they do not antagonise the government and would make decisions that ensure they are not made the subject of investigations by the authorities, but stressed that this would be "a disservice to the faith we have in our rule of law and our democratic nation”.

She pointed out the importance of public confidence in the judiciary as an institution, as respect and acceptance of the administration of justice system would be essential for it to operate effectively.

Among other things, the Malaysian Bar also pointed out that the judiciary is "defenceless to criticism or wild allegations made by irresponsible parties” due to the nature of its office that does not engage in public controversy, and said the Malaysian Bar therefore needs to protect the dignity and integrity of the courts.

"We have seen such wild attempts to hurt lawyers, members of the public as well as the judiciary as an institution, and now specific judges.

"The Malaysian Bar is greatly averse to any investigation by MACC which may set the terms of an unsavoury precedent, and no doubt have an adverse effect in the future process undertaken by our authorities in similar circumstances against the judiciary or individual judges – since these circumstances appear to be more frequent nowadays when one hides behind the comfort of cyberspace. 

"The continued attempts to cut into the credibility of our respected institutions should be curbed immediately. We call for a circumspect approach by our authorities, and not to fall to the temptation to the irresponsible noise made by keyboard warriors — cull the easy approach, for the greater good of our nation,” she said.

In the same statement, the Malaysian Bar pointed out that the judiciary must be and always be seen to be independent and impartial in order for the rule of law to exist, noting that there are constitutional guarantees in the Federal Constitution to both the judiciary and judges from political and other pressure to secure their independence and impartiality.

"We fully recognise that each and all Judges must have the proper space to discharge their judicial duties in a manner apparent to all, that the judicial process and decision is independent, free of any interference, considered, reasoned, honest — and above all that, justice must be seen to be done.  

"It is on this basis that the Malaysian Bar is unable to support this negative and rash perception being pushed by irresponsible parties — and urge that such misconception be arrested immediately, otherwise another crisis of confidence will re-emerge in the independence and impartiality of the judiciary and the administration of justice in the country,” it said.

Yesterday, DAP’s Bagan MP Lim Guan Eng said Raja Petra who was allegedly "hiding” in London should be asked to return to Malaysia to face investigations over his allegations on Nazlan, following the police report lodged against the blogger.

Asserting that Raja Petra’s allegations have "consistently been proven to be false and baseless”, Lim added that the blogger should be extradited if he refuses to return to Malaysia and there are sufficient grounds for criminal charges to be filed against him.

Raja Petra has been on the run from Malaysian law since April 2009 when he failed to turn up in court for his sedition trial over an open letter on the then Perak constitutional crisis. He is widely believed to be living in the UK.

Opposition Leader Datuk Seri Anwar Ibrahim also highlighted that the judiciary has its own body that supervises the integrity of judges, and that the MACC investigation is an intervention that goes against the principle of separation of powers.

The online attacks against Nazlan as the SRC trial judge had started appearing more than one and a half years after his July 2020 verdict that found Najib guilty, or in other words just about three months after the Court of Appeal too upheld the conviction.

No hearing date has been fixed yet for Najib’s actual SRC appeal before the Federal Court, as it is still in the preliminary stages.