Many contradictory statements, some are not even accurate — Isham Jalil

Dear Professor Shad Faruqi,

With respect but straight to the point, your article in the New Straits Times yesterday regarding MACC investigation into Judge Nazlan contains many contradictory statements, some are not even accurate. It seems like you have dissonance in forming an opinion about the case.

READ HERE: Probe into judge raises issues

First you said judges of superior courts are not a member of public service under Article 132 of the Constitution. True. However, what you didn’t say is that though they are not a member of public service, they are a member of a public body, thus liable to be subjected to criminal investigation on crimes such as bribery.

Second, you keep quoting Article 125 and the Judges’ Ethics Committee Act 2010 which provide that in disciplinary cases, judges must be tried by a tribunal or committee consisting solely of fellow judges.

But what you didn’t emphasise was that Article 125 is actually on judges’ tenure and remuneration, and how to shorten their tenure if they breach discipline and ethics, which is to be done by a tribunal; However Article 125 doesn’t say anything about judges’ criminal offences.

I saw that in your article you tried to stretch the extent of ethical conducts to cover criminal offences as well, but that is a long stretch, and it doesn’t hold well by any stretch of imagination.

There is a big difference between ethics and crime, I’m sure you know this: you don’t go to jail if you’re unethical, but you do if you commit a crime.

And the investigation by MACC on Judge Nazlan is not in the view to shorten his tenure or remove him from office because of his indiscipline or him breaching the code of ethics, it is because of a criminal allegation against him. If he is guilty, not only that he’d be removed from office and has his tenure shortened, but he will go to jail as well. So you see, this is a lot more serious than disciplinary or ethical misconduct cases.

And later on in your article, you conceded that “when a judge acts in his personal or non-judicial capacity or commits a crime like bribery, he is answerable to the ordinary law. The anti-corruption law applies to judges as it applies to all other persons. The MACC is correct in observing that it has the authority to investigate allegations of corruption against judges.”

But then later in the same article you keep going back to Article 125 again to say that though MACC has the power to investigate, it still needs to refer to the Chief Justice or tribunal because apparently the allegation of crime breaks the Code of Ethics. This is where you seem to be going in circle, blurry and unsure.

Let me help make it more conspicuous. If an official commits a crime, he most certainly breaks the code of ethics as well. Therefore it is not necessary to subject he or she to a criminal proceeding and an ethical hearing at the same time. Proposing this is likened to asking somebody who murders another while he was skiving from office to be subjected to a criminal trial and a disciplinary hearing too. It would be a waste of time and resources, not to mention a ridiculous proposition.

Finally, you mentioned that “ India, where the law is similar to Malaysia, there are binding Supreme Court decisions that any contemplated investigation by any investigatory agency must get the prior nod of the chief justice”.

To this I comment: That is in India, their law is similar but not the same as ours, and their precedences are not directly binding here in Malaysia. Just because a foreign country decided one thing, doesn’t mean we have to follow them. I am sure you know that, stare decisis and all.

By the way, the YAA Chief Justice mentioned the well-known doctrine of stare decisis in her recent speech. What is not well-known is that the term “stare decisis” originally came from “stare rationibus decidendi” but over time it was shortened to just stare decisis. The original term means standing by the ‘reason’ for the decision, not just standing by the previous decision. Therefore in any case, the reason is more important than the decision itself.

Which leads me to ask, why or what is the actual reason you, the Bar Council and PH politicians seem to be all out in defending one judge Nazlan and against MACC investigation on him this time, whereas MACC had investigated on countless occasions numerous judges before but to different reaction or no reaction at all from you and friends?

What is so special about Judge Nazlan that you and friends saw fit to accord special immunity from investigation on criminal allegation?

Isn’t the law supposed to be blind to all in the matter of justice? Why the double standard?