COMMENT | I refer to the proposals for and against the establishment of the royal commission of inquiry on the alleged judicial impropriety in the affidavit by a sitting Court of Appeal judge. 

The 63-page affidavit by Justice Hamid Sultan Abu Backer exposed alleged misconduct, bias and facilitating the channelling of public funds by some judges, retired and serving.

As the allegations are serious, the RCI is warranted not only to investigate the claims, but also to clear any negative perceptions and to restore public confidence in the judiciary. 

The RCI will be a fact-finding tribunal to investigate a matter of considerable public importance and interest pursuant to the Commissions of Enquiry Act 1950.

The act empowers the Yang di-Pertuan Agong to convene an RCI "when it appears to him to be expedient to do so," and pursuant to Article 40 of the Federal Constitution, the Yang di-Pertuan Agong acts on the advice of the cabinet or of a minister acting under the general authority of the cabinet.

The members of RCI can be selected from among notable public figures, such as retired judges, trustworthy politicians, and past or present senior police officers and members of the Attorney-General’s Chambers, who will be expected to carry out their duties independently, impartially and free from any fear.

As the proposed RCI is to investigate judicial matters, it will be expedient to appoint a panel of commissioners with a mixture of locals and international experts. 

There is nothing in the Commissions of Enquiry Act to prevent the king from appointing international commissioners onto the panel.

Under the act, the RCI proceedings are deemed to be judicial proceedings, whose investigatory powers include summoning witnesses and holding hearings, including in camera, as well as reviewing relevant documents and other relevant evidence.

The commissioners have the power to procure and receive evidence and to examine the witnesses who have knowledge of the matter in question. The evidence of the witnesses can be taken on oath or affirmation or by way of statutory declarations.

Aside from making its findings, the RCI report would include recommendations to address grievances, and in this case, the establishment of a tribunal to deal with the serving judges for their judicial misconduct, if any. 

These recommendations, however, are not binding on the government who may adopt some or all of the recommendations or disregard them. 

In practice, however, the government usually acts on the recommendations made by the commissioners. The RCI report is also published, which the general public would have access to.

The appropriate preliminary approach before the establishment of a tribunal is to establish a RCI to collect evidence of the alleged judicial impropriety. 

To do this, the statements must be recorded from informants such as court registrars, secretaries, orderlies and drivers who are serving or have served the judges concerned. In the case of judges who are golfers, the information with whom they were playing will be extremely helpful.

The investigation must start from retired judges, as all informants will not be embarrassed about giving evidence. 

If it involves a serving judge, the chief justice must ensure that the informants who are serving be transferred to another station so that they can provide information without any embarrassment. 

The investigative agencies must announce protections for informants, as well as rewards in cases of productive information.

Where there is a basis for the alleged impropriety, a criminal charge may be initiated against those who have retired. Those still serving may be subject to a tribunal.

It is noteworthy that the affidavit of the sitting Court of Appeal judge fairly discloses the purported judges to be investigated, and to say the affidavit is not a statement is therefore incorrect. 

Hence, the proper place to seek appropriate evidence with regard to the statement will be the RCI.

ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.