Past Bar presidents: Intimidation of judiciary must stop

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Former presidents of the Malaysian Bar have come out strongly against alleged attacks on the judiciary in relation to leaked documents involving the probe into judge Datuk Mohd Nazlan Ghazali.

  • MACC acting outside its scope of investigatory powers
  • Azalina revealing contents of MACC investigation to Najib’s lawyer
  • Silence of the Attorney General on the matter

A group of fourteen past Bar presidents, in a statement Friday (April 7), said the continuing intimidation of the judiciary by irresponsible actors in connection with the SRC case is a danger to the rule of law.

The signatories are VC George, Param Kumaraswamy, Zainur Zakaria, Cyrus Das, Mah Weng Kwai, Kuthubul Zaman Bukhari, Yeo Yang Poh, Ambiga Sreenevasan, Lim Chee Wee, Steven Thiru, George Varughese, Fareed Abdul Gafoor, Salim Bashir and AG Kalidas.

“In particular, 14 judges have considered the SRC case and 13 of them have handed down reasoned judgements upholding the convictions.

“Further the purported conflict of interest of Justice Nazlan Ghazali was canvassed and argued by the lawyers for Datuk Seri Najib Tun Razak before two separate panels of the Federal Court.

“On both occasions, the Federal Court had considered the matter and decided there was no merit in the allegations,” they said.

The group also raised the concerns on the “leaked” Malaysia Anti-Corruption Commission (MACC) letter dated Feb 21, 2023, addressed to the Chief Justice that went viral and contained a purported “finding” or “view” by MACC that Justice Nazlan was in breach of the Judges Code of Ethics.

Yusof Mat Isa

The group 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.

“This constitutes a serious transgression by MACC of their authority and jurisdiction under the governing Act, which are not within its purview nor competence, as it falls within the purview of the Judiciary.

“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.

“We note that a letter from the Minister of Law Datuk Seri Azalina Othman to Najib’s lawyers was similarly leaked.

“It is unusual that a minister has seen fit to respond and provide information to a litigant in respect of MACC’s letter to the Chief Justice, which reeks of interference,” the statement read.

Azinuddin Ghazali/MMO

The group also expressed their profound disappointment at the silence of the Attorney General on the matter as the case has given rise to an unacceptable level of intimidation against judges who are doing their duty to uphold the law without fear or favour.

“They are facing constant harassment and are subject to machinations and schemes by some with vested interests.

“Does anybody believe that if it was not a powerful political figure who is involved in the SRC case, the current attacks on the Judiciary would occur?

“Do Malaysians want to see, again, our justice system compromised by powerful politicians?

“Finally, one may criticise a judgement of the court, but it must be done in temperate terms for a proper purpose and without casting any aspersions or ascribing improper motives against a judge,” the group said.

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 former 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.