APRIL 25 — The Malaysian Bar, which is the professional legal body which represents 20,556 lawyers in Peninsular Malaysia, is rightly appalled at the Malaysian Anti-Corruption Commission’s (MACC) reported launching of an investigation against the SRC trial judge Datuk Mohd Nazlan Mohd Ghazali based on reports.
Such a report is commonly referred to in legal circles as a first information report (FIR).
Can an FIR be filed against a sitting superior court judge?
The following are what the Supreme Court of India in 2017 said, reiterating its judgment in 1991:
“There is no question of registering any FIR against any sitting Judge of the High Court or of this Court — that is, the Supreme Court — as it is not permissible as per the law laid down by a Constitution Bench of 5 Honorable Judges of this Court in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655.
“[In that case], this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the [investigation agency] if given publicity, will have a far-reaching effect on the Judge and the litigant public.
“The need, therefore, is of judicious use of action taken under [an incriminating legislation]. There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Honourable Chief Justice of India (CJI) and, in case there is an allegation against the CJI, the decision has to be taken by the Honourable President, in accordance with the procedure prescribed in the said decision.
“[The] independence of judiciary cannot be left at the mercy of the [investigation agency]. There cannot be any FIR … without permission of the Chief Justice of the concerned court.
“Otherwise, on unfounded allegations, any honest Judge to the core, can be defamed, and reputation can be jeopardised. No judge can be held responsible [in that way].”
Care should be taken that honest and fearless judges are not harassed. They should be protected.
The entire judicial system will unnecessarily be brought into disrepute for no good cause whatsoever. It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it independently and freely, without favour and without fear.
This is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.
Why the consultation with the Chief Justice?
It is because the Chief Justice is a “participatory functionary” in the matter of appointment of judges of the superior courts; the Chief Justice is to be consulted by the Yang Di-Pertuan Agong in the appointment of these judges.
The Chief Justice, being the head of the judiciary, is concerned with the integrity and impartiality of the judiciary.
It, therefore, passes comprehension on how investigation has started after reports were lodged with the MACC.
Has the Chief Justice of Malaysia been consulted?
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
