KUALA LUMPUR, Feb 24 — The nation’s highest court today unanimously held that the Malaysian Anti-Corruption Commission’s investigation against judge Datuk Mohd Nazlan Mohd Ghazali did not follow proper protocol.
The seven-judge panel was led by Chief Justice Tengku Maimun Tuan Mat in presiding over a suit filed by three lawyers that challenged the MACC’s investigation on Mohd Nazlan over claims that the latter had an unexplained RM1 million in his account.
“A criminal investigative body cannot on their own accord publicise or advertise facts of an investigation or contents of the investigation of a superior court judge without prior approval of the Chief Justice (obtaining leave).
“The public prosecutor too must consult the Chief Justice during the course of giving instruction and during the course of investigation and in respect of his decision to prosecute.
“On a cursory reading of the facts and upon examining the documentary evidence on record, it is blatant that any probe commenced against Justice Nazlan was done without regard to judicial independence and none of the above protocols were allowed.
“Further, the manner in which the investigations were publicised by way of a press statement also does not appear to preserve or lend confidence to the independence of the judiciary.
“The curious timing against Justice Nazlan which was done without consultation with the judiciary also cast doubt on whether investigation against Justice Nazlan is bona fide,” she said in delivering the court’s decision through video-conferencing this morning.
Mohd Nazlan was the trial judge in the High Court who convicted former prime minister Datuk Seri Najib Razak of embezzling RM42 million belonging to SRC International Sdn Bhd, a former unit of sovereign investment firm 1MDB.
Mohd Nazlan has since been elevated to the Court of Appeal.
At the time of the press statement issuance last year, Tengku Maimun said there was already significant buzz in the media over former prime minister Datuk Seri Najib Razak’s final appeal in the SRC International case which was coming up for hearing before the Federal Court.
While the statement did not name Justice Nazlan, Tengku Maimun said existing media reports bearing the judge’s name were sufficient to enable any reasonable citizen to deduce or believe Justice Nazlan was suspected of having committed a crime, a move that could tarnish the image of an independent Judiciary.
Tengku Maimun explained that complaints can be entirely true or entirely false and can be a calculated move to damage a judge’s credibility and reputation.
She added that criminal investigative bodies are constitutionally entitled to investigate complaints, and that the public prosecutor can decide whether or not to charge judges in the superior court, but stressed that such authority must be carried out in good faith, and only in genuine cases.
“It appears to us that upon considering the sacrosanct importance of judicial independence in the Federal Constitution, the constitution itself implies a higher standard on criminal investigative bodies when they investigate judges.
“Putting it another way, when criminal investigative bodies investigate serving superior court judges, they are not to violate the doctrine of judicial independence,” she said.
Sitting superior courts’ judges not immune to prosecution
The Chief Justice also ruled that sitting superior courts’ judges are not entirely immune from criminal investigations or prosecution, but stressed of higher standards imposed upon criminal investigative bodies in light of judicial independence.
She said it must be borne in mind that while judges are considered citizens of the highest moral character, they cannot be beyond reproach if a crime has been committed and are more than liable to answer for it.
However, Tengku Maimun stressed the need for preventive and protective measures stated earlier ought to be complied with in the interest of the judiciary over any investigation into a sitting superior courts’ judge.
“In conclusion we reiterate that serving superior courts’ judges are not immune from criminal investigation or prosecution.
“They need not be suspended or removed before they can be investigated or prosecuted.
“However because they are serving judges, criminal investigations against them are subjected to a higher standard in light of the doctrine of judicial independence.
“If any investigation or prosecution against a serving judge is found to have commenced for collateral purposes, the courts are entitled when reviewing them to set them aside or pass any other remedy,” she said.
Other judges who sat with her were Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, President of the Court of Appeal Tan Sri Abang Iskandar Abang Hashim and justices Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Harmindar Singh Dhaliwal, and Datuk Rhodzariah Bujang.
Three lawyers — Haris Ibrahim, Nur Ain Mustapa and Sreekant Pillai — filed a lawsuit last year against the MACC, questioning the probe against Mohd Nazlan.
The trio were represented by lawyer Malik Imtiaz Sarwar while senior federal counsel Liew Horng Bin appeared for the MACC.
New Sin Yew appeared for the Malaysian Bar as amicus curiae (friend of the court).
The trio claimed that the MACC’s investigation was a violation of the independence of the judiciary and the separation of powers by the executive branch.
They are seeking a declaration that criminal investigation bodies, including the MACC, are not entitled or are precluded from investigating serving judges of the superior courts — High Court, Court of Appeal and Federal Court — unless the judges are suspended as required under the Federal Constitution.
They also want the court to declare that the public prosecutor is not empowered to institute or conduct any proceeding for an offence against sitting judges in the superior courts.
