FEBRUARY 26 — The Federal Court has held that judges are not immune from criminal investigation or prosecution but there are protocols involved.

In a unanimous decision delivered by Chief Justice Tengku Maimun Tuan Mat, the seven-judge panel ruled that criminal investigative bodies are constitutionally entitled to investigate superior court judges, and the Public Prosecutor to conduct criminal proceedings against them, but such powers must be exercised in good faith and only in genuine cases.

A unanimous seven-judge decision is as strong as it could get as the Federal Court currently consists of the Chief Justice, President of the Court of Appeal, two Chief Judges of the High Court and eight Federal Court judges.

Be that as it may, as the Chief Justice rightly alluded in the written judgement, the fact remains that no matter which way one looks at it, criminal investigative bodies are executive bodies and thus investigations into judges of the superior court can amount to judicial interference.

Accordingly, when criminal investigative bodies investigate serving judges of the superior, they are not to violate the doctrine of judicial independence.

The scheme of the Federal Constitution requires that when investigating a criminal complaint, the relevant criminal investigative body must first consult the Chief Justice before commencing any investigations into a judge of the superior court.

To consult means to "refer a matter for advice, opinion or views.” According to the authoritative Black’s Law Dictionary (7th Ed), the word "consultation” means, among others, the act of asking the advice or opinion of someone.

To "consult” does not mean to "consent.” The Federal Constitution, in fact, uses the words "consent” and "consult” separately.

For example, the word "consent” is used in Article 159(5) of the Constitution which states that the amendments to certain provisions of the Constitution cannot be passed by Parliament without the "consent” of the Conference of Rulers.

According to Black’s Law Dictionary again, the word "consent” means "agreement, approval or permission as to some act or purpose especially given voluntarily by a competent person.”

One who consults does not seek the consent of the other, but merely seeks advice, opinion or views. Is the former bound to accept? Clearly, he is not.

He may consider the advice or opinion or views given but he is not bound by it. (See the judgment of President of the Court Appeal Lamin in In The Matter Of An Oral Application By Dato’ Seri Anwar Bin Ibrahim To Disqualify A Judge Of The Court Of Appeal [2000] 2 MLJ 481)

So, when the Federal Court ruled that there is a set of protocols which must be followed when a judge of the superior court is investigated, the first of which is for the relevant criminal investigative body to "consult” the Chief Justice to investigate any judge of the superior court, it means to "refer” to the Chief Justice for advice, opinion or views before commencing investigation, and not to seek consent.

If the investigation that is sought to be commenced against a sitting judge of the superior court is bona fide, there is nothing to fear that consulting the Chief Justice will stymy criminal investigation into the judge.

If there were no protocols to consult the Chief Justice before investigating a judge, there are now. They are borne out by the "real and apparent concerns raised by the [three lawyers] and the [Malaysian] Bar on the significance of separation of powers, the bane of democracy and attacks on the independence of the Judiciary.”

To consult is to refer a matter for advice, opinion or views. It is not to seek the consent of the Chief Justice to investigate a judge.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.