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”.
The use of the comma, followed by the words “and includes”, are highly significant. It indicates that it refers to a different category of persons from the preceding ones – that is, persons who are not already referred to in the earlier part of the definition.
The principle of statutory construction is this: when a statute employs the expression “includes” to define a word or term, the intention is to leave the meaning of the word or term defined open-ended.
This was alluded to by the Court of Appeal 20 years ago in the case of Tenaga Nasional Bhd v Tekali Prospecting Sdn Bhd  2 MLJ 707 where Court of Appeal judge Gopal Sri Ram (as he then was) said:
“On settled principles of statutory interpretation, it is clear that when an act of Parliament employs the expression ‘includes’ to define some other word or expression, the intention is to leave the meaning of the expression defined open-ended.
“By contrast when the word ‘means’ is employed to define something, there is a rebuttable presumption of statutory interpretation that Parliament intends to restrict the meaning of the expression defined.”
Hence, when the words “and includes” follow a comma, it gives rise to different or separate categories of persons from the preceding ones.
The legislative intention is nevertheless clear: to cast the net wide to include, and not to restrict, persons who may be investigated by the MACC for corrupt practices.
Unfortunately, it includes a judge of the High Court, Court of Appeal or Federal Court. I say unfortunate. Whether it is unconstitutional, it is for the court to decide.
Under Part IX of the Federal Constitution, Article 121 establishes the two High Courts of coordinate jurisdiction (High Court in Malaya and High Court in Sabah and Sarawak), the Court of Appeal and the Federal Court – the judiciary.
By Article 132, the public services do not include the judiciary – Clause (1). As a matter of fact, the public service does not comprise the judiciary – Clause (3).
In India, the legal position is different. A judge of the High Court or of the Supreme Court comes within the definition of public servant under its anti-corruption law – that is, the Prevention of Corruption Act 1988 (PCA) [see Section 2(c)(iv].
Any judge is therefore liable to be prosecuted under the provisions of the PCA. No criminal case, though, can be registered against a sitting judge of the High Court, chief justice of the High Court or a judge of the Supreme Court unless the chief justice of India is consulted in the matter. (See the majority judgment of the Supreme Court of India in K Veeraswami v Union of India decided on July 25, 1991)
But the Indian constitution, unlike the Federal Constitution, does not exclude members of the judiciary from being considered as a public servant.
As such, the Indian legislature is not constitutionally restricted to legislate for any judge to be a public servant for the purpose of its anti-corruption law.
In Singapore, the constitutional position is similar to Malaysia. By Article 102 of the Constitution of the Republic of Singapore, the public services do not include the judiciary. As a matter of fact, a public officer does not include a judge of the Supreme Court, which is made up of the Court of Appeal and the High Court [see Article 103(1)].
Correspondingly, Singapore’s anti-corruption law – that is, the Prevention of Corruption Act 1960 – does not include the judiciary as a public body [see Section 2] or members of the judiciary as officers of a public body.
Neither is an MP an officer of a public body, unlike under the MACC Act.
That is not to say that an MP in Singapore is not liable to be prosecuted for corruption. Prosecution is provided for under a specific provision – that is, Section 11 – which states as follows:
Bribery of member of Parliament
Any person —
(a) who offers any gratification to a member of Parliament as an inducement or reward for such member’s doing or forbearing to do any act in his capacity as such member; or
(b) who being a member of Parliament solicits or accepts any gratification as an inducement or a reward for his doing or forbearing to do any act in his capacity as such member,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding S$100,000 or to imprisonment for a term not exceeding seven years or to both.
A judge of the Supreme Court, however, is subject to be removed in accordance with the constitution, as the case is in Malaysia.
Now, a quick look at Hong Kong informs us that under its anti-corruption law – that is, the Prevention of Bribery Ordinance 1971, as amended in 2017 – a public body includes the government, the executive and the legislative council but not the judiciary. The latter is independent of the former two.
Singapore and Hong Kong have been the benchmarks for anti-corruption for decades now.
In summary, 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.
Hence in Malaysia, no act of Parliament can contravene the Federal Constitution. Section 3 of the MACC Act 2009, insofar as it includes members of the judiciary as officers of a public body, stands to be scrutinised by the court.
The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.