MACC has no standing to review judiciary’s ethics — Roger Chin

APRIL 7 — The Sabah Law Society (“SLS”) is alarmed by the findings of the Malaysian Anti-Corruption Commission (“MACC”) that Justice Nazlan Ghazali had breached the Judges’ Code of Ethics 2009 and had a conflict of interest, as reportedly stated by the Law and Institutional Reform Minister, Azalina Othman Said.

Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali is pictured during the swearing-in ceremony at Palace of Justice in Putrajaya January 17, 2023. — Picture by Yusof Mat Isa

The MACC is a statutory body established pursuant to the Malaysian Anti-Corruption Commission Act 2009 (“Act”). The stated function of officers of the MACC is to, amongst other things, detect and investigate suspected offences under the Act, attempts to commit offences under the Act, and suspected conspiracies to commit offences under the Act. The offences under the Act unsurprisingly all relate to corruption, including amongst others offences of corruptly giving or accepting gratification, corruptly withdrawing tenders, bribery, and using an office for gratification.

What is important to note is that the word ‘ethics’ and the phrase ‘conflict of interest’ do not appear even once in the Act. On the other hand, the stated purpose of the Judges’ Code of Ethics 2009 (“Code of Ethics”) is to state the basic standards to govern the conduct of all Judges and to provide guidance to Judges in settling and maintaining high standards of personal and judicial conduct.

Matters related to ethics and conflict of interest are dealt with in the Code of Ethics. Any complaint against Judge who is alleged to have committed a breach of the Code of Ethics shall be made in writing to the Chief Justice of the Federal Court and may be investigated by the Judges’ Ethics Committee, not the MACC.

In other words, the MACC is in no position to investigate or make conclusions as to any alleged conflict of interest or breaches of the Code of Ethics, as it appears to have done. The SLS appreciates that nobody is above the law, even Judges. The MACC must investigate all corruption-related offences.

The SLS takes note of the statement of the MACC’s Operation Review Panel Chairman that “When MACC receives a report or complaint on allegations of corruption, abuse of power or misappropriation, it is duty-bound to investigate.” This statement is in itself mostly correct.

However, the distinction that the MACC appears to have missed is that corruption is a separate concept from conflict of interest or breaches of the Code of Ethics. Whilst it is possible that certain actions may amount to, for example, both corruption and a breach of the Code of Ethics, the MACC ought to be more cautious in its findings and more conscious of its jurisdiction.

The SLS would urge the MACC and all other bodies or persons in power to be respectful of the separation of their respective roles, to avoid further damaging public confidence in Malaysian institutions, and not to unnecessarily interfere with each other. The SLS has and will always stand and march, when necessary, for the independence of the Judiciary.

* Roger Chin is the president of the Sabah Law Society

** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.