KUALA LUMPUR, April 7 — The Malaysian Anti-Corruption Commission (MACC) does not have the power to make its conclusion that the SRC trial judge Datuk Mohd Nazlan Mohd Ghazali had a conflict of interest or had breached the Judges’ Code of Ethics 2009, and should be more respectful of the separation of powers, the Sabah Law Society (SLS) said today.

Roger Chin, the president of SLS which is the Sabah counterpart to the Malaysian Bar, expressed alarm over the MACC’s findings, as he said the MACC’s powers are only for corruption investigations.

Chin said the Malaysian Anti-Corruption Commission Act 2009 is the law that establishes the MACC as a statutory body, and that this law states the MACC officers’ functions as including the investigation of suspected corruption offences or attempts or conspiracies to commit corruption.

He said this MACC Act 2009 does not even mention terms like "ethics”.

"The offences under the Act unsurprisingly all relate to corruption, including amongst others offences of corruptly giving or accepting gratification, corruptly withdrawing tenders, bribery, and using an office for gratification.

"What is important to note is that the word ‘ethics’ and the phrase ‘conflict of interest’ do not appear even once in the Act,” he said in a statement today.

Chin contrasted this with the Judges’ Code of Ethics 2009, which deals with ethics and conflict of interest as well as listing the standards of conduct for judges.

Chin said it should be the Judges’ Ethics Committee’s role to look into any alleged breach of ethics by judges, instead of the MACC whose role is to investigate alleged corruption offences.

"Any complaint against a judge who is alleged to have committed a breach of the Code of Ethics shall be made in writing to the Chief Justice of the Federal Court and may be investigated by the Judges’ Ethics Committee, not the MACC.

"In other words, the MACC is in no position to investigate or make conclusions as to any alleged conflict of interest or breaches of the Code of Ethics, as it appears to have done,” he said.

While appreciating that nobody — including judges — is above the law and that MACC must investigate all corruption-related offences, Chin stressed that corruption is an entirely different matter from ethics or conflict of interest matters.

Referring to the MACC’s operation review panel chairman Datuk Ahmad Rosli Mohd Sham’s comment yesterday that the MACC is duty-bound to investigate alleged corruption, abuse of power or misappropriation, the SLS however said the MACC should be more careful as its scope of powers does not include alleged breach of ethics.

"However, the distinction that the MACC appears to have missed is that corruption is a separate concept from conflict of interest or breaches of the Code of Ethics.

"Whilst it is possible that certain actions may amount to, for example, both corruption and a breach of the Code of Ethics, the MACC ought to be more cautious in its findings and more conscious of its jurisdiction,” he said.

Chin then said the separation of powers doctrine should be respected. Under the doctrine, the three branches of government — the executive (which includes the MACC), the legislature, and the judiciary — each exercise their powers independently.

"The SLS would urge the MACC and all other bodies or persons in power to be respectful of the separation of their respective roles, to avoid further damaging public confidence in Malaysian institutions, and not to unnecessarily interfere with each other,” he said.

He indicated that Sabah’s lawyers are prepared to march to defend the judiciary’s independence if required.

"The SLS has and will always stand and march, when necessary, for the independence of the judiciary,” he said.

Previously on June 17, 2022, the SLS held a peaceful march to the courthouse in Sabah’s state capital Kota Kinabalu, with this "Walk for Justice” participated by over 100 Sabah lawyers in solidarity with the Malaysian Bar’s "Walk for Judicial Independence”.

The Malaysian Bar had on June 17, 2022 organised the peaceful "Walk for Judicial Independence” to protest against interference with the independence of the judiciary, which was coming under relentless attacks following the conviction of former prime minister Datuk Seri Najib Razak over the misappropriation of RM42 million of SRC International Sdn Bhd’s funds.

SLS’s statement today comes after the purported leak of the MACC’s letter this February to the chief justice, where the MACC purportedly made its "finding” or "view” that the SRC trial judge was purportedly in breach of the Judges’ Code of Ethics.

But the Malaysian Bar’s current president and 14 of its former presidents have stressed that the MACC lacked the powers to make such a finding.