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Constitutional argument on investigating judges

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Lately, there have been polemics among politicians and lawyers on whether the Malaysian Anti-Corruption Commission is the body to investigate the so-called alleged corruption of a judge.

There are interpretations that tend to take a dualistic approach to the matter in a highly charged political climate where truth is determined by which side of the political spectrum one is in, rather than eyeing the issues objectively.

In this situation, the truth will remain in a shadow, due to a subjective, relativistic and rigid understanding of constitutional doctrines.

There is a pick-and-choose aspect in the constitutional argument that does not help in building the confidence of Malaysians on the vital institutions of checks and balances in the country.

For example, there is an argument on whether the judiciary can investigate its own judges.

Some say that 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. Article 125 of the Federal Constitution apparently does not accord it such a power.

On the other side of the argument, the Malaysian Bar claimed that Article 125 of the Federal Constitution provides a mechanism for setting up a tribunal to assess the misconduct of judges, meaning judges should not be investigated like ordinary citizens.

However, critics of the Bar assert the article pertains to mechanisms for the removal of judges due to disciplinary matters, not criminal offences.

The perennial issue facing the nation is the trust deficit towards institutions due to the perceived selective nature of prosecutions for corruption over the years and this has played into the motives of those who are polemical on the issue.

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The solution to be found is not so much about the dualistic argument related to Article 125 but how to shed light on the article without doing away with its original spirit.

This is what we call the development of the doctrine on the separation of powers.

Development of doctrine was a term used by the late theologian John Henry Newman and other theologians influenced by him to describe the way Catholic teaching has become more detailed and explicit over the centuries, while later statements of doctrine remain consistent with earlier statements.

Looking at the above Newman principles of being detailed and explicit over the centuries, Article 125 could be seen in a new light: it should not merely address disciplinary issues related to judges but could be expanded to investigate alleged criminal behaviors.

There could be an independent body formed to investigate any judge who is suspected of criminal activities.

This would ensure the doctrine of separation powers is not read and understood rigidly but given a new light of interpretation with far more details, without destroying its original purpose.

It is hoped that the authorities and politicians would stop the polemics concerning the doctrine of separation of powers and build public confidence in our vital institutions by embracing an enlightened way of resolving the constitutional issue. – Malaysiakini

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