Please click here to view a Bahasa Malaysia translation of this press release.
The Malaysian Bar is deeply perturbed by several misleading comments and recent events surrounding attempts to exonerate former Prime Minister, Dato’ Sri Najib Razak (“Najib”) from his conviction in the SRC International case.
On 28 February 2023,1 the Malaysian Bar stated that the Malaysian Anti-Corruption Commission (“MACC”)’s actions would be outside its remit and statutory powers if its written letter to the Chief Justice of the Federal Court of Malaysia, YAA Tun Tengku Maimun binti Tuan Mat, on its investigations into a former high court judge pertains to breaches of judicial ethics. The public must know that matters of judicial code of ethics is not within the competence nor understanding of MACC.
Investigations by the MACC in this regard are not only without jurisdiction, but also begs the question as to why MACC has traversed into areas that are not within the scope of the MACC Act 2009, nor within competence of the MACC.
The Malaysian Bar is of the concerted view that the proper body to investigate and decide on the ethical conduct of judges lie with the Judicial Ethics Committee established under the Judges’ Ethics Committee Act 2010. The MACC has no role to play in this exercise. The Judiciary, as an institution, and judges, are conferred with certain constitutional guarantees that insulate them from political pressures — a safeguard that is necessary to secure their impartiality. It therefore follows that any MACC investigation into the purported breach of judges’ ethics blatantly contravenes the doctrine of separation of powers, as it amounts to an interference by the Executive with the administration of justice.
After the 4-1 Federal Court decision against Najib’s judicial review bid in the SRC International case was dismissed on 31 March 2023,2 one of the views alluded to in relation to the minority judgment by the Federal Court was that it may give rise to future attempts within the legal system to revive a review upon the already decided judicial review, or even a retrial of the matter. Again, the public must know that within the legal system in Malaysia, any dissenting judgment in the Court of Appeal and the Federal Court amounts to nothing more than a difference of opinion. The public must be cognisant that it is the majority decision that ultimately triumphs and prevails. A dissenting opinion does not give grounds for a retrial; nor does it establish a right to a “further” review under Rule 137 of the Rules of the Federal Court 1995.
There must be finality to litigation. A difference of opinion or judgment by a minority judge cannot prevail over the majority judgment. A difference of opinion is acceptable in the context of a litigation system, and within our administration of justice, but there must be a structure that leads towards finality of litigation — hence the majority decision will prevail.
If all it takes is for one dissenting judgment to give rise to the possibility of a fresh review upon an already decided judicial review, then there will be no end to litigation. It will also open the door to lawyers and judges being susceptible to “unsavoury strategy” or “outside influence” just to cause a situation of a fresh review to frustrate the course of justice.
It cannot be overly stated that any other interpretation would be perverse and an abuse of the court process. As such, ongoing attempts to exploit a minority judgment to confuse the public on existing well-founded legal principles of our justice system only goes towards blank shots to undermine the faith placed by all of us in the Judiciary as our revered institution.
The Malaysian Bar further notes that the decision relating to Najib’s SRC International case delivered at the High Court, upheld in the Court of Appeal, and again at the Federal Court on its merits, and then by way of its limited jurisdiction under its judicial review on 31 March 2023 at the Federal Court before a completely different coram of judges in the Federal Court — clearly indicate valid and lawful grounds for Najib’s conviction in the SRC International case.
It should be well rested now that Najib’s SRC International case is “res judicata”, which simply means that the matter has been adjudicated by competent courts and therefore may not be pursued further by the same parties.
Dredging up allegations against the High Court Judge vis-à-vis the MACC’s letter3 is clearly another desperate attempt intended to tarnish the reputation of a judge who has already been vindicated from all levels within our judiciary system. This inappropriate and last-ditch effort to cast doubts on Najib’s conviction on the SRC International case is most undesirable and must cease.
The nation’s hope for a strong democracy and good governance lies in the strength of the Judiciary as an institution, not an individual.
Karen Cheah Yee Lynn
3 April 2023
1 “MACC’s powers pertain to corruption, not judicial ethics: M’sian Bar president”, The Vibes, 28 February 2023.
2 “Apex court dismisses Najib's bid to review SRC conviction, sentence”, The Edge Markets, 31 March 2023.
3 “Alleged ‘MACC letter on judge Nazlan’ gets online airing”, Free Malaysia Today, 2 April 2023.