Statement by past presidents of the Malaysian Bar on the assault upon the independence of judiciary

07 Apr 2023 03:30pm

This is a statement by the Malaysian Bar's past presidents, reproduced in full.

We, the undersigned wish to express our support for the statement issued by the President of the Malaysian Bar on April 4th. 2023 in relation to the so-called “leaked” document from the Malaysian Anti-Corruption Commission (“MACC”) and the attacks against the Malaysian Judiciary and judges thereof.

The continuing intimidation of the Judiciary by irresponsible actors in connection with the SRC case is a danger to the rule of law in our country particularly where 14 Judges have considered the SRC case, and 13 of them have handed down reasoned judgments upholding the convictions.

Further, the issue of the purported conflict of interest of Justice Nazlan was canvassed and argued by the lawyers for Dato’ Sri Najib Tun Razak before 2 separate panels of the Federal Court (in the main appeal against conviction, and subsequently in the review application pursuant to Rule 137 of the Rules of the Federal Court 1995). On both occasions the Federal Court had considered the matter and decided there was no merit in the allegation.

It is noted in this regard that the sole dissenting or minority decision in the review application did not offer any opinion on the issue of the alleged conflict of interest. Thus, the allegation of conflict of interest against Justice Nazlan has been decided with finality. The principle of “res judicata” applies and the matter cannot be reopened. Certainly, it cannot be reopened as a collateral attack in the media or by any other means. To do so is a serious undermining of the administration of justice.

Another concern is the ‘leaked” MACC letter dated 20 February 2023 addressed to the Chief Justice that went viral and which was then released to the press containing a purported ‘finding’ or ‘view’ by MACC that Justice Nazlan was in breach of the Judge’s Code of Ethics. This constitutes a serious transgression by MACC of their authority and jurisdiction under their governing Act. The MACC letter concerns issues that are not within the purview nor competence of the MACC. It is clear that the MACC cannot make findings nor come to a view nor decide on matters that fall outside their jurisdiction but which are squarely within the purview of the Judiciary.

Moreover, it is astounding that such a sensitive and confidential letter could have found its way into the public domain and raises serious questions about the confidentiality of MACC processes, which warrant immediate investigation.

We note that a letter from the Minister of Law, Dato’ Sri Azalina Bin Othman to Dato’ Sri Najib’s lawyers was similarly leaked to the press containing a repetition of MACC’s questionable ‘finding’ or ‘view’. 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. This reeks of interference.

We further wish to express our profound disappointment at the silence of the Attorney General both:-

on the conflict issue which has been decided conclusively by the Federal Court; and

in failing to publicly clear Justice Nazlan of the scurrilous allegations of corruption (which even Dato’ Sri Najib had withdrawn).

More so, as the Attorney General was himself a former Federal Court Judge and must surely appreciate the devastating effect of his silence upon the Judiciary and the sanctity of the administration of justice.

This 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.

All of this must stop as it does not serve the rule of law or the country. Those who have been found to have committed offences must pay for it. That is the Malaysian criminal justice system. There should be no preferred class of people in this country who are permitted to tear down an institution to escape the law.

Everyone is said to be equal before the law. Does anybody believe that, if it is not a powerful political figure who is involved in the SRC case, the current attacks on the Judiciary will occur?

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

Finally, one may criticise a judgement of the court, but this must be done in temperate terms for a proper purpose, and without casting any aspersions or ascribing improper motive against a judge. This would be contemptuous, and liable to legal action.

The statement by Datuk Ahmad Rosli Mohd Sham

The response from the MACC misses the wood for the trees. The two “surat pekeliling” referred to by the MACC Committee are wholly inapplicable. They apply only to civil servants. Judges of the superior courts (High Court, Court of Appeal and Federal Court) are not civil servants.

In any event, such circulars cannot override the MACC Act. MACC only has 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 alleged conflict of interest in a court matter and breaches of judicial ethics. The position taken by MACC via its committee is untenable and serves to confuse the issue and the public. Furthermore, and as stated earlier, this precise issue has been decided conclusively by the Federal Court and any reference to it as if it is a live issue is wholly improper.

7th April 2023

Past Presidents of the Malaysian Bar

V C George

Param Cumaraswamy

Zainur Zakaria

Cyrus Das

Mah Weng Kwai

Kuthubul Zaman Bukhari

Yeo Yang Poh

Ambiga Sreenevasan

Lim Chee Wee

Steven Thiru