LETTER | I agree with Yeo Yang Poh that none of the six parties referred to in the writer’s comment has taken the position that judges are above the law.
In India, it has been said more than thirty years ago in 1991 that no one is above the law – judges included. In a civilised society, it cannot be said that a judge will escape criminal liability because of his high office.
A judge of a superior court will not be immune from prosecution for criminal offences committed during the tenure of his office.
However, it has also been cautioned that any complaint against a judge and investigation by the investigation agency, if given publicity, will have a far-reaching effect on the judge and the public.
There is, therefore, a need to be judicious.
To be judicious is to have or show good judgment in making decisions.
As such the Supreme Court of India, by a majority (4:1), ruled in 1991 that an investigation could not proceed against a High Court judge or chief justice of the High Court or the Supreme Court judge without consulting the chief justice of India (CJI) and, in case of an allegation against the CJI, the decision had to be taken by the president, in accordance with the procedure prescribed in the said decision. [See K Veeraswami v Union of India (1991)]
It is said that the independence of the judiciary cannot be left at the mercy of the investigation agency.
Similarly, in Malaysia – if an investigation of a sitting superior court judge is constitutional – there should not be an investigation without permission of the head of the court concerned.
Otherwise, on unfounded allegations, any honest judge to the core can be defamed, and his or her reputation can be jeopardised.
No judge can be held responsible in that way.
Integrity and impartiality
Care should be taken that honest and fearless judges are not harassed. They should be protected.
The entire judicial system will unnecessarily be brought into disrepute for no good cause whatsoever.
It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it independently and freely, without favour and without fear.
This is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.
Why the consultation with the head of the court?
It is because the head of the court – the chief justice of Malaysia, the president of the Court of Appeal and the chief judges of Malaya and Sabah and Sarawak – is a “participatory functionary” in the matter of appointment of judges of the superior courts.
Article 122B of the Federal Constitution calls for consultation with the respective heads of the court in the appointment of the judges.
If the heads of the court are to be consulted in the appointment of the judges, it is a good judgment that they are consulted before a criminal investigation of a judge is commenced.
They are collectively concerned with the integrity and impartiality of the judiciary.
It’s about being judicious.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.