Uphold and protect the independence of the judiciary - Sabah Law Society, The Bar Council
17 June 2022
Yang Amat Berhormat Dato’ Sri Ismail Sabri bin Yaakob
Prime Minister of Malaysia
Upholding and Protecting the Independence of the Judiciary and the Preservation of Public Confidence in the Judiciary – Joint Memorandum of the Sabah Law Society and the Bar Council
1. Judicial power and judicial independence are sacrosanct to the principle of separation of powers that stands as one of the basic structures enshrined in the Federal Constitution. Further, public confidence in the Judiciary is the hallmark of a mature and effective democratic government under the Federal Constitution.
2. In a posting on the Facebook page dated April 2022, Shahir Samad-Tok Uban, among others, made allegations of a conspiracy between the Chief Justice Tun Tengku Maimun Tuan Mat and political leaders to speed up the trial and sentencing of former Malaysian Prime Minister Datuk Seri Najib Razak and former Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi.
3. In a statement on 21 April 2022, the Chief Registrar of the Federal Court of Malaysia stated that the Federal Court Chief Registrar’s Office had made a police report against the accusations of conspiracy, collusion or illegal alliance between political leaders and the Chief Justice.
4. This is but an example of many of the public hurling accusations of late against the Judiciary which only tarnishes the image of and causes the public to lose confidence in the Judiciary, bringing the Judiciary into disrepute.
5. While we recognise that Judges are not above the law and must be made accountable if they commit any crimes, and that law enforcement agencies must be allowed to carry out their respective tasks in accordance with the law and the Federal Constitution, we firmly maintain that any investigation of Judges by law enforcement agencies ought to be conducted without eroding judicial independence and public confidence in the existence of an independent Judiciary that will uphold justice in the process of administering justice.
6. Respectfully, any complaint against Judges and its investigation by law enforcement agencies under the purview of the Executive, if given undue and incautious publicity, will have a far-reaching impact on Judges in carrying out their duties independently thus becoming a significant obstacle to the independence of the Judiciary, creating a negative perception as well as decreasing the public confidence reposited in the Judiciary.
7. The Judiciary is an institution of great importance to our country, and the Judges carrying out their judicial duties, must be protected from intimidation, harassment and frivolous investigation, particularly in cases that go against the Executive, considering that the Executive forms a large category of litigants in a position to misuse its powers against Judges.
8. Recently, on 20 April 2022, Raja Petra Kamarudin (“RPK”) published an article entitled “Judge Mohd Nazlan Being Investigated For Unexplained RM1 Million In His Bank Account” on a website known as Malaysia Today.
9. On 23 April 2022, the Chief Commissioner of the Malaysian Anti-Corruption Commission (“MACC”), Tan Sri Azam Baki, openly announced that the MACC has commenced an investigation into a Court of Appeal Judge, and named Justice Dato’ Mohd Nazlan bin Mohd Ghazali (“Justice Dato’ Nazlan”) publicly, over an allegation of unexplained monies in his bank account.
10. On 28 April 2022, the MACC issued a press release entitled “The MACC Is Empowered to Investigate Officers of Public Body”, taking the position that it can investigate Justice Dato’ Nazlan based on section 3 of the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”).
11. The undue and unwarranted manner in which the MACC publicly announced an investigation and named the judge, has the effect of undermining public confidence in the Judiciary and is clearly an attack on the independence of the Judiciary.
12. We, the Sabah Law Society, condemn, in the strongest possible terms, the unprecedented manner in which the MACC has publicly announced the commencement of a criminal investigation of a Superior Court Judge, and disclosed the name of the judge to the public, for an indefinite period and without any proper decision or closure, which is tantamount to an act of intimidation against the Judiciary.
13. We also condemn, in the strongest possible terms, any interference, whether explicit or otherwise, at all material times, with the independence of the Judiciary, and breaches of the fundamental principle of separation of powers.
14. We respectfully urge and earnestly hope that YAB Dato’ Sri will take into account the aforesaid concerns, will condemn the propriety and manner of the investigation commenced by the MACC towards a Judge, and will take all measures and reasonable actions available to uphold and protect the independence of the Judiciary and to preserve public confidence in the Judiciary, including measures of legislative reform so that the parameters and the law on the process of addressing allegations of misconduct against judges are set, clarified and refined to ensure the independence of the Judiciary is continually preserved for the betterment of our country and the general public.
President Sabah Law Society