Section 3 of MACC Act 2009 must stand to scrutiny

Where Parliament is not supreme, the law on investigating a sitting judge of the superior court must correspond with the supreme law of the land – that is the constitution.

(MalaysiaNow) – The Malaysian Bar contends that the Malaysian Anti-Corruption Commission’s (MACC) investigation into the SRC trial judge, Mohd Nazlan Ghazali, violates the doctrine of the separation of powers, undermines the independence of the judiciary, and is unconstitutional.

MACC, on the other hand, insists that judges in the country, too, fall under the jurisdiction of civil servants and that the regulating body has the power to investigate them for any alleged abuse of power.

It says it has been given the power to investigate “officers of a public body” as defined in Section 3 of the MACC Act 2009.

Since then, there have been views for and against MACC’s investigation of Nazlan.

A legal expert says the investigation by MACC is valid and within the purview of the act. Speaking to MalaysiaNow, Haidar Dziyauddin said the use of the act applies to all Malaysian citizens including judges, adding that the commission has done nothing wrong in launching the investigation.

Andrew SH Tan calls out hypocrisy as he highlights that MACC has investigated complaints of corruption in the judiciary. The fact is, writes Tan, “the investigation, prosecution and conviction of judges is not unprecedented. There have been many cases of judges being investigated for corruption, with a number being prosecuted and sentenced. Therefore, this whole backlash on the MACC for investigating Court of Appeal judge Nazlan Mohd Ghazali reeks of hypocrisy”.

But not all judges are members of the judiciary established under Part IX of the Federal Constitution – the superior courts – whose independence is secured by the constitution. Judges of the subordinate courts – the Session Courts and Magistrate’s Courts – are members of the judicial and legal service. According to Article 132, they are public servants whose qualifications for appointment and conditions of service “may be regulated by federal law and, subject to the provisions of any such law, by the Yang di-Pertuan Agong”.

Let’s take a quick comparative look at the legal positions in India, Singapore and Hong Kong – common law jurisdictions with a common colonial master with Malaysia.

But first, Section 3 of the MACC Act 2009. It is an interpretation provision. Among others, it defines “public body” as inclusive of 12 legal entities [(a)-(l)] but not members of the federal (Parliament) and state (legislative assembly) legislatures or judges of the High Court, Court of Appeal and Federal Court (the judiciary).

So it is curious that “officer of a public body” is defined to mean “any person who is a member, an officer, an employee or a servant of a public body, and includes a member of the administration, a member of Parliament, a member of a state legislative assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and, where the public body is a corporation sole, includes the person who is incorporated as such”.

Read more here