Dato’ Ahmad Rosli Mohd Sham

Chairman, Operation Review Panel (Panel Penilaian Operasi SPRM) Malaysian Anti-Corruption Commission

Special Instructor, Faculty of Syariah and Law, University Sains Islam Malaysia

Former Deputy Head of Prosecution Division Attorney General Chambers

The Malaysian Bar Council on the 3rd April 2023 through its Press Release published in its website, titled ‘Decision of the Courts Should be Respected by All Parties’, has stated that “matters of judicial code of ethics is not within the competence nor understanding of MACC.”

It also states: “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.”

In my view, the Malaysian Bar Council’s statement is not entirely correct especially when making the assertion that the MACC has no authority nor competency to investigate High Court judges.

The MACC was created as a single entity to fight corruption in Malaysia. It is empowered by the Malaysian Anti-Corruption Act 2009 to investigate any forms of corruption and abuse of power.

There is no other agency or body with higher authority nor possess the competency to investigate the criminal offence of corruption.

When the MACC receives a report or complaint on allegations of corruption, abuse of power or misappropriation, it is duty bound to investigate.

Upon investigation, if it finds evidence and facts to support corrupt elements or abuse of power, it then refer its investigation papers to the Attorney General.

Besides that, based on the facts from its investigation, in certain cases the MACC may also refer a case for disciplinary action in accordance with Surat Pekeliling Perkhidmatan Bil. 17 Tahun 1975 And Surat Pekeliling Perkhidmatan Bil. 5. Tahun 1997 with the consent of the Public Prosecutor.

I was made to understand, pertaining to the case involving a former High Court Judge, a report was sent to the Chief Justice of the Federal Court of Malaysia and in the said report it is mentioned a possible breach of the judge’s code of ethics. This has been confirmed by the Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said today (6 April, 2023).

Earlier, the MACC had referred its investigation paper to the Chief Justice, as informed in Parliament by Datuk Seri Azalina Othman on 23 February 2023, and this was done

Further, it states that “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.”

upon the agreement of the Attorney General. Thus, the functions of the MACC ends there.

The case is now subject to the Chief Justice’s consideration and discretion on whether to initiate any action as outlined under Clause 3 of Article 125 of the Federal Constitution, which provides for the appointment of a tribunal to look into any breach of the provisions of the Code of Ethics concerning the judge.

The Constitutional rights and powers of the MACC to investigate any forms of suspected corruption and abuse of power of a Superior Judge is in fact reflected and affirmed in the case of Haris Fathillah bin Mohamed Ibrahim & Anor vs Tan Sri Dato’ Sri Haji Azam bin Baki & Anor (CIVIL REFERENCE NO.: 06(RS)-4-07/2022(W)).

The Federal Court, chaired by the Chief Justice Tun Tengku Maimun Tuan Mat, though has stated that a set of protocols should have been followed when a Superior Judge is being investigated, nevertheless, also reiterated that “serving Superior Court Judges are not immune from criminal investigations or prosecution. They need not be suspended or removed before they can be investigated or prosecuted.”

The Judgement further states that while Judges are considered to be citizens of the highest moral character, “they cannot therefore be beyond reproach, for if they commit a crime, they are more than liable to answer for it.”

Therefore, it is not true for the Malaysian Bar to say that the MACC is not competent or do not have the jurisdiction to investigate a former High Court judge in that respect.

Besides that, it should be also noted that without the competency of the MACC in investigating the SRC International case, the case would not have been able to stand the trials in court, much less secure a strong conviction that withstood several levels of appeal by the defendants.

In conclusion, it is my humble opinion that no one or parties should be exempted from investigations by law enforcement, be it members of the administration, the legislative or the judiciary.