THE Malaysian Anti-Corruption Commission’s (MACC) investigation into judge Mohd Nazlan Mohd Ghazali’s alleged “conflict of interest” in presiding over the trial of former prime minister Najib Razak is an eminent case of overreach and abuse of jurisdiction in and of itself.
Its claim that it has the jurisdiction to do so since there is an allegation of abuse of power per simpliciter is specious and untenable.
A case where an allegation of conflict of interest is confined, ab initio and in loco, to ethical matters is clearly and definitively outside the jurisdiction and scope of MACC (as defined by the MACC Act 2009), which is tasked and empowered solely and exclusively to concern itself with criminal matters and, by extension, abuse of power of a criminal nature.
The distinction between that which is merely ethical and that which is criminal has been wholly lost on MACC.
In other words, MACC can only act if there is a suspicion of prosecutable offence, that is, one concerning bribery or gratification of some sort.
Although all criminal matters involve breach of ethics, not all breaches of ethics involve criminal elements.
To provide a concrete example by reference to the underlying facts giving rise to the allegation of breach of ethics in the form of bias: Nazlan whose only so-called “cause of concern” is indirectly related to the SRC case by virtue of being Maybank’s general counsel and company secretary from 2006 to 2015 is not a criminal matter at all.
Maybank – as a third party – was involved in providing a loan to SRC indirectly but which is not in anyway related to the charges thereof (no apparent bias).
Besides, as is the case, Nazlan no longer has any links whatsoever with Maybank.
This is as confirmed in the judicial review findings of the Federal Court, which was presided over by judge Vernon Ong on March 30.
Interference by MACC, “willy-nilly”, into any allegation of breach of ethics is clearly contrary to the rule of law, due process and separation of powers, as aptly put in an editorial by The Malaysian Insight on April 6.
The editorial poses the rhetorical question: “Who decides Malaysian judges have broken their code of ethics? Is it a criminal offence? For sure, (its) only the (Judges’) Ethics Committee that decide… no one else.”
As pointed out so saliently by constitutional lawyer New Sin Yew, allegations against Nazlan does not involve any prescribed offence under MACC.
Section 3 outlines what a “prescribed offence” is:
(a) any offence under any written law as specified in the schedule (that is, under the penal code – which is solely and exclusively criminal in nature);
(b) an offence punishable under section 137 of the Customs Act 1967;
(c) an offence under part III of the Election Offences Act 1954;
(d) an attempt to commit any of the offences referred to in paragraphs (a) to (c); or
(e) an abetment of or a criminal conspiracy to commit (as those terms are defined in the penal code).
Under section 7(a) of the MACC Act, the anti-corruption agency can only investigate upon receiving and considering any report of an offence therein. MACC can only:
“(b) … detect and investigate –
(i) any suspected offence under this act;
(ii) any suspected attempt to commit any offence under this act; and
(iii) any suspected conspiracy to commit any offence under this act.
It is surprising and awkward, therefore, for Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said to sidestep the issue of MACC’s overreach in her press statement.
Be that as it may, the statement by MACC operation review panel chairman Ahmad Rosli Mohd Sham that “… no one or parties should be exempted from investigations by law enforcement, be it members of the administration, the legislative or the judiciary” is inapplicable in this instance, and, therefore erroneous.
Rosli appealed to an old circular – Surat Pekeliling Perkhidmatan Bil. 17 (1975).
The process stipulated therein involved the National Bureau of Investigation (NBI), which is no longer in existence, and its governing legislation (enacted in 1973) has been repealed by the Anti-Corruption Act (1997). In turn, the 1997 legislation has since been repealed/superseded by the MACC Act.
This means that the process dealing with abuse of power and correlation of corrupt practices involving civil servants as mentioned in the Surat Pekeliling Perkhidmatan Bil. 17 (1975) is no longer valid (that is, outdated), which is now subjected and accountable to a higher degree of standard.
The same applies to Surat Pekeliling Perkhidmatan Bil. 5. (1997) which was also cited by Rosli.
Some background is in order.
The NBI and Anti-Corruption Agency (ACA) at the time were less autonomous compared to MACC and as its officers were seconded from government departments and agencies, there was some reluctance to thoroughly investigate allegations of corruption involving fellow civil servants for fear of future repercussions.
And hence the circulars as alluded to, where the disciplinary procedures were “shifted (back)” to the heads of department and agency, that is, internalised (see p.605, “Combating Corruption: The Malaysian Experience”, Y. Mansoor Marican, Asian Survey, Vol. 19, No. 6, June, 1979, pp. 597-610).
In other words, the circular letters reflected administrative and procedural convenience rather than the legal responsibility (of NBI and ACA).
Hence, the blurring of the lines between ethical and criminal matters in the two circulars.
As it is, by right, this should not be the case at all.
In other words, both NBI and ACA in concert with the then public service director-generals have all erred in their interpretation and understanding of the due process.
Here, to be fair, it is not a question of jurisdiction but of due process, that is, the disciplinary procedure.
We see this under section 15(1) of the Anti-Corruption Act 1997, which unqualifiedly and unequivocally states that:
“Any officer of a public body who uses his office or position for any gratification shall be guilty of an offence.”
Section 23(1) of the MACC Act – which is substantially the same and goes further – states that:
“Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence.”
This is then subsequently followed by section 24(1) of the MACC Act – after the completion of the provision under section 23 overall:
“Any person who commits an offence under sections 16, 17, 20, 21, 22 and 23 shall on conviction be liable to –
(a) imprisonment for a term not exceeding 20 years; and
(b) a fine of not less than five times the sum or value of the gratification which is the subject matter of the offence …”
Furthermore, and more to the point, there is a categorical error also as MACC has no jurisdiction over (superior court) judges as they are not “civil servants” by constitutional definition.
This means that the two circulars concerned, apart from being outdated, are also irrelevant as far as judges are concerned.
This is to ensure separation of powers as civil servants strictly comes under the executive.
In our Federal Constitution, the judiciary under part 9 (articles 121 to 131A) comes before (and, hence, is treated distinctly and separately from) the public service under part 10 (articles 132 to 148).
Clearly, judges are not subject to the authority of the public service director-general as they are appointed by the Judicial Appointments Commission (JAC).
It is set up under the JAC Act 2009 to assist the prime minister in advising the Yang di–Pertuan Agong on the appointment of judges of the superior courts and judicial commissioners.
This includes Nazlan, who is currently a Court of Appeal judge.
It is different when it comes to the subordinate courts – the magistrates’ and sessions courts. These come under the Judicial and Legal Service Commission as governed by articles 138 and 144(1) of the Federal Constitution.
So, subordinate judges (as judicial officers) would be civil servants and yet in their own distinct category (also).
The Judicial and Legal Service Commission chairman is none other than the public service director-general, who is currently Zainal Rahim Seman.
Thus, to quote from the “Joint statement by lawyers against intimidation of judiciary” (Malaysia Now, April 8, 2023), the investigation by MACC “… constitutes a serious transgression… of its authority and jurisdiction under [the] governing act. The [MACC’s investigation] concerns issues that are not within [its] purview or competence. [It’s] clear that the MACC [can’t] make findings or come to a view, nor decide on matters that fall outside its jurisdiction but which are squarely within the purview of the judiciary” in relation to the Judges’ Ethics Committee as governed by the Judges’ Ethics Code 2009 and the Judges’ Ethics Committee Act 2010.
Section 2 of the 2010 act stipulates that a “judge” refers to a judge of the High Court, Court of Appeal and the Federal Court.
This means that a clear-cut distinction is made between a judge as constitutionally defined and a judicial officer deemed civil servant.
As such, even at best tenuous, MACC’s jurisdiction to investigate breaches of ethical conduct extends to judicial officers only.
Finally, to quote from the joint statement again, “[i]n any event, such circulars cannot override the MACC Act. MACC only has the power to investigate alleged corruption and matters related thereto”.
To conclude, we join in the calls for the attorney-general to issue a statement to uphold the rule of law and separation of powers and reaffirm constitutional supremacy over against any attempts to cast aspersion on the integrity of the judgments of the then High Court judge Nazlan and, by extension, the three-member bench of the Court of Appeal together with the five-member bench of the Federal Court.
The finality of the judicial process as embodied by the judgment of the Federal Court – as the apex court – must be upheld and respected. – April 10, 2023.
* Jason Loh Seong Wei is head of social, law and human rights at independent think tank EMIR Research.
* 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.