Doctrinal development on article 125

LAWYERS and politicians have recently argued over whether the Malaysian Anti-Corruption Commission is the appropriate agency to investigate the alleged bribery of a judge.

Some of the arguments tend to take a dualistic approach, especially in a political climate where truth is determined by which side of the political spectrum one is on rather than looking at the issue from an objective perspective.

In this situation, however, the truth will remain in the shadows due to the subjective, relativistic and rigid understanding of constitutional doctrine.

There is an aspect of choice and choice that does not help build citizens’ trust in the country’s vital checks and balances institutions.

For example, there is a debate about whether the judiciary can investigate its own judges.

Some agree when it comes to ethical conduct and discipline, but not when it comes to criminal offences. Article 125 of the Federal Constitution does not grant such power to the judiciary.

But the Malaysian Bar claimed that Section 125 provides a mechanism for the establishment of a tribunal to assess a judge’s misconduct, which means a judge should not be subject to an investigation like ordinary citizens.

However, critics from the Bar said the article was clearly about the mechanisms for removing a judge due to disciplinary issues, not criminal offences.

One of the ongoing problems currently facing the nation is a lack of trust in institutions due to the perceived selective nature of corruption prosecutions over the years. This has played into the motivations of those who are polemical on the issue at hand.

The solution is not so much in the dualistic approach of article 125 as in the way of clarifying the article without suppressing its original spirit.

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

Development of doctrine is a term used by the late theologian John Henry Newman and theologians influenced by him to describe how Catholic teaching became more detailed and explicit over the centuries, while later statements of doctrine remain consistent with previous statements.

Article 125 can be seen in a new light – it should not only address disciplinary issues related to judges, but also investigate alleged criminal activity. An independent body can be formed to investigate any judge suspected of criminal activity.

This will ensure that the separation of powers doctrine is not rigidly read and understood, but rather given a more detailed interpretation without destroying its original purpose.

It is hoped that the authorities and politicians will put an end to the controversy around the doctrine of the separation of powers and strengthen the public’s confidence in the institutions by adopting the enlightened way of resolving the constitutional question. – May 8, 2022.

* Ronald Benjamin is Secretary of Welfare Community and Dialogue Association

* This is the opinion of the author or publication and does not necessarily represent the views of The Malaysian Insight.