The Singapore Law Gazette

Tug of War: Executive Bodies’ Investigative Powers vs Judicial Independence

An Analysis of the Malaysian Federal Court’s decision in Haris Fathillah by Dato’ Edwin Paramjothy Michael Muniandy

Judges are not, and should not be, immune from investigation and prosecution for criminal conduct. Should criminal investigations into the conduct of judges nevertheless be held to a higher standard? This issue was addressed by the Malaysian Federal Court in Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296. In an article published in the Malayan Law Journal, the Federal Court’s Director of Research examines the substance and impact of the Federal Court’s decision.

Introduction

In 2023, the Malaysian Federal Court rendered its decision in Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (Haris Fathillah) concerning the extent of investigative agencies’ authority when examining the conduct of sitting Superior Court Judges.

The Federal Court’s Director of Research argues in an article published in the Malayan Law Journal¹Dato’ Edwin Paramjothy Michael Muniandy, “Tug of War: Executive Bodies’ Investigative Powers vs Judicial Independence” (2023) 3 MLJ cii (“Tug of War”). that the ruling is a momentous breakthrough in the protection of judicial independence from undue influence during criminal investigations of sitting judges in Malaysia. The author analyses the rationale behind the ruling in Haris Fathillah in the context of judicial independence, and refutes contentions raised by critics of the Federal Court’s ruling.

The Decision

In response to reports of a staggering sum of money in the bank account of a sitting Judge of the Court of Appeal of Malaysia, the Malaysian Anti-Corruption commission (MACC) issued a press statement announcing its initiation of an investigation into the matter. After concluding its investigation, the MACC forwarded its investigation papers to the Attorney General’s Chambers of Malaysia.

The investigation prompted the appellants, three advocates and solicitors of the High Court of Malaya, to file an originating summons in the High Court of Malaysia, to seek a declaration that criminal investigative bodies like the MACC were prohibited from investigating sitting Judges of the Superior Courts, unless these Judges had been suspended or removed in accordance with art 125 of the Federal Constitution. The appellants also contended that it was the Public Prosecutor who possessed the power to initiate or conduct any proceedings against those actively serving on the bench of the Superior Courts.

The appellants’ questions were later reframed as two constitutional questions of law by the High Court Judge who presided over the originating summons and referred the questions to the Federal Court for determination. In the reference proceedings, the questions were as follows:

1. Question 1: Whether, having regard to art 4 and Part IX of the Federal Constitution, criminal investigative bodies, including the MACC, were only legally permitted to investigate Superior Court Judges after their suspension pursuant to art 125(5) of the Federal Constitution.
2. Question 2: Whether the Public Prosecutor was authorised to institute or conduct any proceedings for an offence against serving Superior Court Judges under art 145(3) of the Federal Constitution, having regard to art 4 and Part IX of the same.

Through the judgment of Chief Justice Tengku Maimum Tuan Mat, the Federal Court in Haris Fathillah answered Question 1 in the negative and Question 2 in the affirmative.

The Federal Court held that though sitting Superior Court Judges were not immune from criminal investigations or prosecution, and were not required to be suspended or removed from office prior to being investigated or prosecuted.

The Federal Court also held that criminal investigations involving such Judges were held to a higher standard in accordance with the doctrine of judicial independence.

In its judgment, the Federal Court set out a set of protocols to be followed during a criminal investigation of a sitting Judge:

1. The relevant criminal investigative body should first seek leave from the Chief Justice to investigate any Judge. The Chief Justice might know details that the investigative body does not and, in any case, informing the Chief Justice is necessary as a safeguard of judicial independence.
2. A criminal investigative body cannot on their own accord publicise or advertise the fact of investigation or the contents of the investigation of a Superior Court Judge without prior approval of the Chief Justice. The Chief Justice might agree to publication if it is in the interest of the Judiciary.
3. The entire contents of investigations against a Judge must remain confidential at all times. It must be remembered that complaints are merely that – complaints. They can be entirely true or utterly spurious and calculated at damaging the Judge’s credibility or reputation. All things considered, whether the complaint is true or not is beside the point having regard to the fact that the relevant Judge is presumed innocent until proven otherwise. Yet, sometimes even the presumption of innocence is an illusory concept considering that the fact of a Judge being accused of a crime is enough to affect his reputation and the reputation of the Judiciary as a whole.
4. The Public Prosecutor too must consult the Chief Justice during the course of giving instructions during investigations and in respect of his decision to prosecute. If there is ample evidence, the Chief Justice too can move to mobilise the ethics and disciplinary measures either under the Judges’ Code of Ethics 2009 (the 2009 Code) or tribunalisation under Article 125 of the Federal Constitution.

The author takes the position that the protocol established in Haris Fathillah is designed with the express purpose of preserving the sanctity of judicial dignity and impartiality, and functions as an indispensable protocol for safeguarding the integrity of Judges. The author argues in support of amending the Malaysian Courts of Judicature Act 1964 to require the sanction of the Yang di-Pertuan Agong, on the advice of the Chief Justice, before investigating or prosecuting a Judge. The author further suggests that policymakers in Malaysia should carefully examine the potential consequences of classifying Superior Court Judges as public officers or public servants, in light of the scheme under the Federal Constitution which sets Superior Court Judges apart from other government officials.

Judicial Independence and Separation of Powers

The author argues that if judicial independence is not upheld during investigations by executive bodies, it may deter Judges from fulfilling their duties with integrity, as they may be apprehensive of retribution or interference. The author thus supports the view that criminal investigations against sitting Judges must be subject to a higher standard.

Noting that judicial independence is constitutionally enshrined in Malaysia and that the Federal Constitution enshrines an array of constitutional safeguards to preserve judicial independence,²See e.g., Part IX (arts 121-131A) and art 125 cll (3) and (5) of the Federal Constitution. the author takes the view that public confidence in the Judiciary is of paramount importance and is as vital as the independence of the Judiciary itself. Safeguarding the independence of the Judiciary and ensuring public confidence in the institution is critical to maintaining a stable and functioning democracy.

The Federal Court held in Haris Fathillah that investigations into Judges by executive criminal investigative bodies can amount to judicial interference. The Federal Court also noted that this was the case whether the crime alleged was against or tied to a judicial act or an extra-judicial act. If it can be demonstrated that an investigation was conducted for a collateral purpose or lacked bona fides, the investigation is liable to be set aside by the courts.

The author notes that Haris Fathillah did not assert that Judges are immune to investigations. The Federal Court’s decision was that investigations must be conducted in a manner that does not compromise the independence of the judiciary. This finding was premised on the doctrine of the separation of powers.

The author argues that the prospect of giving the MACC unbridled authority to investigate Judges can be deemed as a violation of the principle of the separation of powers. The author further argues that frivolous investigations could create a paralysing atmosphere that would render the Judiciary susceptible to external influence, and that the scheme laid out by the Federal Court preserves a balance that guarantees the independence of the Judiciary while still holding Judges accountable for their actions.

Other Jurisdictions

In examining the position in other jurisdictions, the author notes that the law in India prescribes a set of procedural guidelines for investigative agencies. These guidelines require express consent from the Chief Justice of India to be obtained prior to the commencement of any criminal investigation against a sitting Judge based on a criminal complaint. The author refers to the decision of the Supreme Court of India in K Veeraswami v Union of India (1991) 3 SCC 655 (K Veeraswami), in which the Supreme Court directed that “that no criminal case shall be registered under Section 154 (of the Criminal Procedure Code) against Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered”.

The author emphasises that the existence of and adherence to the protocol in India, which also requires prior authorisation from the relevant authority before any court can entertain the prospect of a criminal investigation targeting a sitting Judge, serves as a testament to the independence of the Judiciary and its unwavering commitment to upholding the principles of justice with impartiality and integrity, citing the Supreme Court of India’s decisions in K Veeraswami, Kamini Jaiswal v Union of India and another (2018) 1 MLJ 661, UP Judicial Officers’ Association v Union of India and others (1994) 4 SCC 687 and Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat and others (1991) SC 2176 in support of this position.

Turning to the offence of judicial corruption under Australian law, the author notes that in New South Wales the Independent Commission Against Corruption (the Commission) has the principal function under the Independent Commission Against Corruption Act 1988 of investigating any allegation or complaint concerning corrupt conduct. While Australia does not appear to adopt the same guidelines as in India or as proposed in Haris Fathillah, the author notes that a person is only eligible to be appointed to the Commission as a Commissioner or an Assistant if such a is qualified to be appointed as or has been a Judge of the Supreme Court, a Judge of the Federal Court or a Justice of the High Court.

In Singapore, the author notes that the legal architecture in Singapore carefully delineates the constitutional standing and scope of both the Judiciary and Members of Parliament in relation to public services and anti-corruption legislation, referring to the provisions of the Prevention of Corruption Act 1960 in this regard. The author emphasises that while these distinctions set the Judiciary and Members of Parliament apart from other public bodies, they are not exempt from prosecution for corrupt practices.

The author also notes that, under Hong Kong anti-corruption law, namely the Prevention of Bribery Ordinance 1971, a public body includes the Government, the Executive Council and the Legislative Council, but not the Judiciary. The latter is independent of the former three.

Moving Ahead

In Singapore, section 77 of the Penal Code 1871 provides that “Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law”. This applies to all Judges, including Magistrates and every person who is empowered by law to give a definitive judgment in any civil or criminal legal proceeding.³Section 19 of the Penal Code 1871

However, the Penal Code does not prevent an investigative agency from investigating whether a judge has in fact committed a criminal offence that falls outside the scope of section 77 of the Penal Code. As noted by Lord Denning in Sirros v Moore [1975] QB 118 (a case cited with approval by the Court of Appeal in AHQ v Attorney-General and another appeal [2015] 4 SLR 760), a judge that has accepted bribes or been in the least degree corrupt or perverted the course of justice, can of course be punished in the criminal courts.

There is no reported decision in Singapore that addresses whether any additional protocol is to be followed in a criminal investigation into a Judge’s conduct. It thus remains to be seen whether the Singapore Court will adopt a similar approach as the Federal Court in Haris Fathillah.