HARIS FATHILLAH BIN MOHAMED IBRAHIM & ORS V TAN SRI DATO’ SRI HJ AZAM BIN BAKI & ORS

BY DR. SHEILA A/P RAMALINGAM, Senior Lecture, Faculty of Law, Universiti Malaya.

Introduction

This case dealt with issues surrounding criminal investigations by the Malaysian Anti-Corruption Commission (‘MACC’) against a serving Court of Appeal judge. The appellants who are practicing advocates and solicitors, filed an originating summons (‘OS’) in the High Court for various declaratory reliefs. The High Court judge in recognising the fundamental importance of the questions posed in the OS, re-framed the declarations sought as two constitutional questions of law and referred them to the Federal Court for determination. [1] Both questions dealt with the investigative powers of criminal investigation bodies, and the prosecutorial powers of the Public Prosecutor, against serving superior court judges in the light of Article 4 and Part IX of the Federal Constitution. [2] The Federal Court held that notwithstanding the constitutional protections afforded to superior court judges under Article 125, criminal investigations and prosecutions may nevertheless be instituted against serving judges. However, certain protocols must be adhered to which were laid down in this case.

The salient facts

The suit arose as a result of criminal investigations undertaken by the MACC against a currently serving judge of the Court of Appeal. In April 2022, there were media reports about the investigations. This culminated in a press statement issued by the MACC confirming the investigations into a judge following several complaints received. Subsequently, the MACC announced that it had completed its investigations and had presented its investigation papers to the Attorney-General’s Chambers.

The appellants’ submissions

The appellants contended that investigations against serving superior court judges are likely to interfere with judicial independence. This, in turn, may amount to an attack on the doctrine of separation of powers. This is because since criminal investigation bodies are within the purview of the Executive, it would be a case of executive agencies asserting power over members of the Judiciary, which may give rise to the possibility of abuse such as investigations commenced for a collateral purpose.

While the appellants conceded that the Federal Constitution itself does not set out any express stipulations or pre-conditions to the investigation or prosecution of a serving superior court judge, the appellants invited the Federal Court to give a broad and expansive interpretation of Article 125. According to the appellants, the combined effect of Article 125, the Judges Code of Ethics and the Judges’ Ethics Committee Act 2010 is to provide for a mechanism for judicial accountability independent of Executive interference, and therefore should be given the broadest possible interpretation. In essence, the appellants contend that judicial misconduct, including criminal misconduct, should be investigated internally by the Judiciary itself before any investigations by criminal investigation bodies.

The respondents’ submissions

The respondents, on the other hand, argue that the appellants’ interpretation of Article 125 goes beyond its natural meaning and creates a system not intended or envisioned by it. Such an interpretation would amount to judicial legislation in that it confers the powers of an investigative body and of the public prosecutor on the Judiciary. The respondents also argue that should the Judiciary for any reason fail or refuse to investigate or sanction a superior court judge, the said judge would in effect become immune to all forms of criminal investigation and prosecution.

Decision of the Federal Court

The Federal Court in this case was not prepared to read into Article 125, a separate mechanism for judicial accountability that is solely within the control of the Judiciary. While recognising judicial independence as a core tenet of the Federal Constitution, the Court held that the purpose and intent of Article 125 do not stretch so far as to render a serving superior court judge effectively immune to investigation and prosecution pending his removal or suspension. In interpreting the relevant laws, including Article 125, the Federal Court came to the conclusion that investigations must be commenced first before any action is taken under the schemes contained in Article 125. In other words, there are no constitutional pre-conditions to criminal investigations or prosecutions against a serving superior court judge.  

Significance of this case

There are three significant outcomes of this case.

First, the Federal Court stated in no uncertain terms that although criminal investigations and prosecutions may be carried out against serving superior court judges, the manner in which these are done is of the utmost importance in the light of the ‘sacrosanct importance of judicial independence’ [3] in the Federal Constitution. Therefore, there must be a higher standard on criminal investigative bodies when investigating serving judges, in that they are not to violate the doctrine of judicial independence. If it could be demonstrated that an investigation was conducted for a collateral purpose, then the investigation is liable to be set aside when judicially reviewed. The Federal Court then went on to lay down a set of protocols that must be followed when a serving judge is investigated, as follows:

(i) the relevant criminal investigative body should first seek leave from the Chief Justice to investigate any judge;

(ii) a criminal investigative body cannot on their own accord publicise or advertise the facts or contents of the investigation without the prior approval of the Chief Justice;

(iii) the entire contents of an investigation against a judge must remain confidential at all times; and

(iv) the public prosecutor, too, must consult the Chief Justice in the course of giving instructions during investigations and in respect of his decision to prosecute.

In the present instance, the Federal Court held that the manner in which the investigations were carried out by the MACC, from its failure to consult the Chief Justice, to the publicity created by the MACC surrounding the investigations, as well as the timing of the investigations, was a travesty to the independence of the judiciary.

Second, the Federal Court expanded further on the difference between constitutional judicial review and statutory judicial review. [4] A constitutional judicial review seeks to question the scope of powers conferred on institutions under the Federal Constitution, which brings to light the question on how constitutional provisions should be applied. This may be done either by challenging the validity of a legislation, or seeking an interpretation of the Federal Constitution (as was the situation in the present case). A statutory judicial review, on the other hand, seeks to challenge the exercise of powers by those institutions under the law. This is done by challenging the exercise of those powers and seeking judicial remedy to bring those powers back into the confines of the law.

Third, there also appears to be an expansion of the rules of locus standi, although this is merely an obiter as this was not a contested issue in this case. Nevertheless, the Federal Court ruled that the appellants had sufficient genuine interest in the matter as ‘not only are they public-spirited citizens seeking elucidation on matters affecting public interests but, as practicing advocates and solicitors, they have a direct interest on a matter that affects the independence of the judiciary’. [5] This is undoubtedly a step in the right direction for public interest litigation cases which is often hindered by stringent rules of locus standi.

Conclusion

Although the Federal Court was not prepared to read additional powers into Article 125, so that serving superior court judges remain susceptible to criminal investigations or prosecutions, the Federal Court for the first time laid down some protocols that must be followed by criminal investigation bodies and the Public Prosecutor when conducting investigations or prosecutions against serving superior court judges. In doing so, the Federal Court has upheld the sanctity of separation of powers and judicial independence, the hallmark of a thriving democracy beholden to the Rule of Law.

REFERENCE

[1] The reference was made pursuant to Sections 84 and 85 of the Courts of Judicature Act 1964.

[2] The two questions are as follows:

Question 1

Whether, having regard to Article 4 and Part IX, Federal Constitution, criminal investigation bodies, including but not limited to the MACC, are only legally permitted to investigate into judges of the High Court, Court of Appeal and the Federal Court that have been suspended pursuant to Article 125(5), Federal Constitution.

Question 2

Whether the Public Prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal and the Federal Court pursuant to Article 145(3), Federal Constitution, having regard to Article 4 and Part IX, Federal Constitution.

[3] At page 319[76].

[4] This was first elucidated upon in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (FC).

[5] At page 310[27].