UNDER the Malaysian Anti-Corruption Commission Act 2009, which came into force on January 1, 2009, “officer of a public body” is broadly defined as any person who is a member, an officer, an employee or a servant of a public body. This includes a member of the administration, a lawmaker, a member of a state assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and where the public body is a corporation sole, includes the person who is incorporated as such.

The courts have adopted a broad approach in defining and determining who falls within such definition. A public body includes the federal government, state government, local authorities, and their departments, services and undertakings.

Also included are companies or subsidiaries over which a public body has controlling power or interest, and various registered societies and trade unions.

The Act applies to both the private sector and to public officers of a public body. The Act does not make a distinction between private sector bribery and bribery of public officials.

The Act makes it an offence when “any person who by himself, or by or in conjunction with any other person corruptly solicits or receives or agrees to receive for himself or for any other person; or corruptly gives, promises or offers to any person whether for the benefit of that person or of another person, any gratification as an inducement to or a reward for, or otherwise on account of any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place; or any officer of a public body doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body is concerned.”

There is an additional offence under the Act for any person to offer to an officer of any public body, or being an officer of any public body, to solicit or accept any gratification as an inducement or a reward for:

1. the officer voting or abstaining from voting at any meeting of the public body in favour of or against any measure, resolution or question submitted to the public body;
2. the officer performing or abstaining from performing or aiding in procuring, expediting, delaying, hindering or preventing the performance of any official act;
3. the officer aiding in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person; or
4. the officer showing or forbearing to show any favour or disfavour in his or her capacity as such officer.

MACC may also prosecute bribery offences under the Act and the penal code, since the MACC chief commissioner has the status of a deputy public prosecutor. However, the prosecution of all bribery offences can be instituted only with the consent of the public prosecutor, which is the attorney-general.

The penal code definition of a “public servant” is broad and includes appointed and elected officials. In both laws, public officers can also be covered under the terms “agent” and “person”.

There have been ideas floated that complaints of corruption by judges should not be investigated by the investigating agencies of the executive as that could compromise judicial independence. Article 10 of the Universal Declaration of Human Rights confirms that judicial independence has been recognised as a universal human right.

The retired former justice J. Clifford Wallace, in an article entitled “Resolving Judicial Corruption While Preserving Judicial Independence: Comparative Perspective” (28 California Western International Law Journal 341 (1998) said:

“Judicial independence should not protect a judge from investigation and censure for a valid charge; judges should not be immune from the demands of justice for misdeeds…

“The issue of prime importance, therefore, is how to detect judicial corruption accurately, to investigate it fairly, and to eradicate it effectively without eroding an independent judiciary. The executive and legislative branches should not be able to use investigations as retaliation for unpopular decisions or to exert subtle pressure on judges through hints or threats of investigation”.

The learned former judge then said:

“I suggest that to preserve judicial independence, these investigations should be left primarily to the judicial branch. Giving power to the executive or legislative branch to investigate judges for all misconduct can interfere with an independent judiciary. It provides too ready a tool to harass judges whose judicial opinions are not consistent with the wishes of political leaders.”

Recently, the Federal Court allowed a habeas corpus appeal by a man currently on restricted residence in Johor. The bench’s ruling stated the Federal Constitution is supreme and any law passed by Parliament must conform to it.

The ruling also affirmed that judicial power cannot be encroached by the legislature and the executive arms of the government.

By upholding three previous judgments, the ruling from the Federal Court also affirmed that the basic structure doctrine is part of the constitution.

Thus, it has become the duty and responsibility of the chief justice to lodge a police report against any corrupt judges, to enable a full investigation to be conducted.

Alternatively, the chief justice can invoke article 125(3) of the Federal Constitution to set up a judicial tribunal for the dismissal of the judges who accept bribes. This article provides that the chief justice, after consulting the prime minister, is empowered to represent to the Agong for the establishment of a tribunal to remove a judge for judicial misconduct. – April 27, 2022.

* FLK reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.