The Malaysian Bar is appalled with the turn of events that the Malaysian Anti-Corruption Commission (“MACC”) has commenced an investigation into YA Dato’ Mohd Nazlan Mohd Ghazali, JCA (“YA Dato’ Nazlan”). It is not apparent to the public, who lodged the report, or when such a report was lodged. What is obvious to the Malaysian Bar is that there should be no double standards by the authorities in approaching the same issue — and on this basis we demand equivalent investigations to be carried out by the police on the report lodged by YA Dato’ Nazlan on the allegations raised in statements issued by Raja Petra Kamarudin on his blog, Malaysia Today, dated 20 April 2022.
Quite apart from such double standards, the Malaysian Bar notes that the Office of the Chief Registrar of the Federal Court had also announced that the post contained false, baseless and malicious accusations to, amongst other things, interfere with the due administration of justice.
Let it be known that the Judiciary is an institution of the highest value for both political and economic stability in every country. It is an indispensable condition for the existence of the rule of law that the Judiciary be independent and impartial, and must always be perceived to be so. The Judiciary as an institution and judges individually are conferred with certain constitutional guarantees to insulate them from political and other influence and pressure in order to secure their independence and impartiality.
There is a justifiable reason for this necessity. Since the events of 1988 in Malaysia, the independence and impartiality of the Judiciary has been a source of concern. Thankfully, our current Chief Justice had restored confidence in the Judiciary and beyond that, overhauled the system to make it not just efficient, but credible and with integrity — maintaining the order in which the rule of law plays so crucial within our democratic nation.
The Malaysian Bar fully supports the efforts of the Chief Justice in maintaining the independence of the Judiciary. We fully recognise that all Judges must have the proper space to discharge their judicial duties in a manner apparent to all, and 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.
The Malaysian Bar further states that the MACC investigation violates the doctrine of separation of powers and also undermines the independence of the Judiciary, and is unconstitutional. There are mechanisms in place to deal with this issue, and pending the determination in such an issue, any attempts by irresponsible parties can be seen as stabbing public confidence in the Judiciary. Article 125 of the Federal Constitution provides a specific pathway that allows for complaints of judicial misconduct to be addressed in a manner that ensures continued public confidence in the Judiciary.
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 of 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, judicial independence. A public perception could arise that the judges make decisions that ensure they are not made the subject of investigations by the enforcement authorities, which are publicly perceived as being under the control of the Government. It could further be perceived that in arriving at such misconceived perceptions that judges are therefore compelled to take steps to ensure that they do not antagonise the Government. This would be a disservice to the faith we have in our rule of law and our democratic nation.
Without that necessary confidence instilled in the Judiciary as an institution, the system of administration of justice cannot command the respect and acceptance which are essential to its effective operation in our administration of justice.
The Malaysian Bar is fully aware that the Judiciary is not in any position to take steps to protect itself by involving itself in a trial by media or any form of public controversy, and that there is therefore a need by the Malaysian Bar to protect the dignity and integrity of the courts and the Judiciary as a whole, considering the nature of the office has always been defenceless to criticisms or wild allegations made by irresponsible parties. 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; that they do not fall to the temptation of irresponsible noise made by keyboard warriors. Cull the easy approach, for the greater good of our nation.
Karen Cheah Yee Lynn
24 April 2022