Confused critics about the role and powers of MACC

In 2019, it was reported that the Malaysian Anti-Corruption Commission (MACC) was investigating 20 complaints of corruption involving the judiciary.

I don’t remember any backlash about the news at the time. Did politicians, the Malaysian Bar, Suhakam and groups such as G25 jump and criticise MACC for investigating judges?

The fact is, 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.

This whole backlash against MACC for investigating judge Nazlan Mohd Ghazali reeks of hypocrisy.

For example, G25 reportedly said: “In the first place, did MACC carry out a thorough investigation into the credibility of RPK’s allegation, before coming out with its media statement?”

One would not expect the judiciary to readily suspect the integrity of its own judges, or to investigate its own.

Can the judiciary investigate its own judges? For matters of disciplinary or ethical conduct, yes. But for alleged criminal offences like corruption, murder or rape, it doesn’t have the power to do so. Sorry, but Article 125 of the Federal Constitution does not accord it such power.

This is with due respect to Chief Justice Tengku Maimun, who said in an impassioned speech that judges are not beyond criticisms, but “the public, including politicians, must not level unfounded and scurrilous attacks against the judiciary to further their own ends”.

As she made her defence of the judges, which I totally respect, she never once said that MACC had surpassed its power by investigating a judge, or that the investigation was “unconstitutional” or “unprecedented”.

These were the words used by Suhakam and G25, parroted by some politicians regarding MACC’s investigation of Nazlan.

If this was true, wouldn’t Maimun have mentioned it in her speech? “Unconstitutional” and “unprecedented” are serious words.

The Malaysian Bar also claimed that Article 125 of the Federal Constitution provides a mechanism for the setting up of a tribunal to assess the misconduct of judges, meaning that judges should not be investigated like ordinary citizens. However, it is clear that the article pertains to mechanisms for the removal of judges due to disciplinary matters, not criminal offences.

As explained by UiTM professor Haidar Dziyauddin, the MACC Act 2009 applies to all including judges, and it has nothing to do with Article 125 of the Federal Constitution as the investigation concerns elements of criminal misconduct, not disciplinary issues.

Haidar said: “Those who issue statements saying that MACC was wrong to have taken action might be confused with the jurisdiction of the tribunal and the code of ethics committee provided for in Article 125 of the constitution.”

The tribunal also cannot prescribe punishments like jail sentences or fines.

So, who is empowered to investigate?

Obviously, law enforcement authorities like MACC and the police. For better or worse, they are the entities created to investigate alleged corruption and criminal offences, whether by civil servants, MPs, peons or judges.

Speaking of MPs, the accusation levelled at MACC is that it violated the principle of the separation of powers among the three institutions, namely the judiciary, the legislative and the executive.

Critics say it is “unconstitutional” for MACC to investigate the judiciary because this is tantamount to interference by the executive in the judiciary.

So, going by the same argument, are they saying that the police and MACC cannot investigate MPs? Because doing so would be interference of the executive in the legislative!

MACC has twice said that its investigation is not based on a blogger’s claims on social media platforms. It said the probe is based on formal complaints and reports lodged at MACC – not one, but three reports over the last month – and that it is duty bound to investigate upon validating them. So please allow it to do its job.

It was also the MACC that did an excellent job investigating the SRC International case, helping the court convict Najib Razak and sentence him to 12 years in jail and a RM210 million fine. This sentence was upheld again by the appeals court.

If the MACC had done a shoddy investigation, the courts would have thrown the case out, as simple as that.

Do you think it is only the judiciary that gave us this conviction? Because of the principle of the separation of powers, MACC had to do a thorough and impeccable investigation, the attorney-general had to give his consent to prosecute, and the deputy public prosecutors had to work with the MACC prosecutors to secure a conviction, working relentlessly through three changes of government. It was a teamwork of agencies maintaining separate jurisdictions.

SRC International and 1MDB are very complex cases involving international layering meant to hide the proceeds of illicit gains. If you follow the news, it was also MACC that managed to recover over RM20 billion in assets from 1MDB which were returned to the people of Malaysia. This is far above the global average of a 30% recovery rate. Give credit where it is due.

Do you think that after all that work, the years of ploughing through thousands of documents, gathering evidence, and the thousands of hours to help secure the conviction, MACC wants to see a retrial if indeed judge Nazlan is found to be complicit?

No matter how badly we want a certain “boss” to serve his sentence, we cannot ignore the country’s legal processes.

If there is any evidence that implicates the judge, it has to be investigated by a competent authority that is set up precisely for this job.

At the moment, only MACC can conclusively clear Nazlan’s name.

If I were him, I would welcome the MACC probe on me. And once he is cleared, it will render false all of the accusations in blogs and cyberspace.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.