KUALA LUMPUR, April 7 — The Malaysian Anti-Corruption Commission (MACC) overstepped its authority under the law when it submitted its views to the chief justice on an alleged breach of the code of ethics by the trial judge in Datuk Seri Najib Razak's SRC case, 14 former presidents of the Malaysian Bar said today.
The former Malaysian Bar presidents said the MACC actually has no power to investigate or make any findings on whether judges had breached the code of ethics, as its power is limited to only investigating alleged corruption.
“MACC only has the power to investigate alleged corruption and matters related thereto. This is clearly set out in the MACC Act.
“MACC does not have any power nor jurisdiction to investigate, let alone make findings or come to a view of the alleged conflict of interest in a court matter and breaches of judicial ethics,” the former presidents of the Malaysian Bar said in a statement here.
The statement comes following reports of a 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 former Malaysian Bar presidents firmly said the MACC had gone beyond their powers under the MACC Act with this purported finding, saying that only the judiciary has power over matters such as whether there have been breaches of judicial ethics.
“This constitutes a serious transgression by MACC of their authority and jurisdiction under their governing Act.
“The MACC letter concerns issues that are not within the purview nor competence of the MACC. It is clear that the MACC cannot make findings nor come to a view nor decide on matters that fall outside their jurisdiction but which are squarely within the purview of the Judiciary," the former Malaysian Bar presidents said.
They also said there should be an immediate probe on the purported leak of such a confidential MACC document.
“Moreover, it is astounding that such a sensitive and confidential letter could have found its way into the public domain and raises serious questions about the confidentiality of MACC processes, which warrant immediate investigation,” they added.
The list of 14 former Malaysian Bar presidents who signed the statement are Tan Sri V.C. George, Datuk Param Cumaraswamy, Zainur Zakaria, Datuk Cyrus Das, Datuk Mah Weng Kwai, Datuk Kuthubul Zaman Bukhari, Datuk Yeo Yang Poh, Datuk Ambiga Sreenevasan, Datuk Lim Chee Wee, Steven Thiru, Datuk George Varughese, Datuk Abdul Fareed Abdul Gafoor, Salim Bashir Bhaskaran, and AG Kalidas.
On April 3, current Malaysian Bar president Karen Cheah Yee Lynn said the MACC does not have the powers to investigate alleged breaches of judicial ethics and that any such investigation amounts to an interference with the administration of justice, as it should be the role of the Judicial Ethics Committee instead to investigate and decide the ethical conduct of judges.
With the Court of Appeal and Federal Court having upheld Najib's SRC conviction at the High Court, Cheah said the attempt to raise allegations against the SRC trial judge using the MACC's purported letter to the chief justice was a "desperate" move to tarnish the reputation of a judge who had already been vindicated at all levels within the judiciary, further calling for a stop to this "inappropriate and last-ditch effort to cast doubts on Najib's conviction".
Yesterday, Datuk Ahmad Rosli Mohd Sham who chairs MACC's Operation Review Panel, responded to Cheah's statement on MACC's lack of powers to investigate alleged breaches of judicial ethics.
According to Ahmad Rosli, the MACC has powers to investigate alleged corruption and abuse of powers.
He said the MACC would refer its investigation papers on alleged corruption to the attorney-general, and can with the attorney-general's consent refer cases for disciplinary action in line with two government circulars dated 1975 and 1997, without directly addressing whether the commission has powers to investigate alleged breaches of judicial ethics.
Ahmad Rosli claimed the MACC's referral of its report – which mentioned a possible breach of judicial ethics on the SRC trial judge – to the chief justice was done with the attorney-general's agreement, and that it would now be subject to the chief justice to consider whether to initiate any action.
The 14 former Malaysian Bar presidents said that Ahmad Rosli’s remarks “misses the wood for the trees”.
They said the two government circulars Ahmad Rosli cited only apply to civil servants and stressed that judges in the High Court, Court of Appeal and Federal Court are not civil servants.
The senior lawyers also said such government circulars “cannot override the MACC Act”, which itself clearly states the commission only has powers to probe alleged corruption.
They said the MACC operation review panel’s stand cannot be defended.
They said the Federal Court had already conclusively decided that the SRC trial judge did not have conflict of interest when ruling that Najib was guilty, adding that it is “wholly improper” to try to treat the allegation against Mohd Nazlan as a “live issue”.
They also said that Najib’s lawyers had made the same argument of a conflict of interest previously and that the Federal Court judges that sat in two separate hearings on the issue concluded that there was no merit.
They said the sole dissenting judge in the Federal Court in the review case did not give any opinion on the allegation of conflict of interest.
“Certainly, it cannot be reopened as a collateral attack in the media or by any other means. To do so is a serious undermining of the administration of justice,” they said.
The former Malaysian Bar presidents expressed their disappointment that Attorney-General Tan Sri Idrus Harun has been silent on the trial judge’s alleged conflict of interest and later on the “scurrilous allegations of corruption” that even Najib had withdrawn.
The full statement of the former Malaysian Bar presidents can be found here.
