Take proactive measures to protect independence in Malaysian judiciary, Commonwealth lawyers tell PM Anwar

KUALA LUMPUR, April 22 — As prime minister, Datuk Seri Anwar Ibrahim needs to take proactive measures to safeguard the independence of Malaysia’s courts, the Commonwealth Lawyers Association (CLA) said amid growing debate over a senior judge’s conduct.

The group expressed its alarm over the Malaysian Anti-Corruption Commission’s (MACC) insistence that it has the authority to investigate a superior court judge for an alleged graft that took place years ago before the latter joined the judiciary.

In an open letter to the prime minister, the CLA stressed the importance of protecting the integrity of the Malaysian judicial system and ensuring that judges are free to discharge their duties without fear or favour.

“While nobody is above the law, we must be careful to maintain due process and uphold the presumption of innocence until proven guilty.

“This includes respecting the rights of those accused of wrongdoing, including the right to a fair trial and the right to be heard,” CLA president Peter Maynard said in the letter dated April 20.

The CLA letter was addressed to Anwar and copied to the Attorney General of Malaysia, the Chief Justice, the Malaysian Bar president, and the United Nations Special Rapporteur on the Independence of Judges and Lawyers.

The CLA is an organisation of lawyers, law societies and bar associations across the Commonwealth.

It expressed concern over the MACC’s investigation of Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali, who is alleged to have committed an ethical breach and having a conflict of interest while presiding over the SRC International trial of former prime minister Datuk Seri Najib Razak.

The association said that the MACC has no jurisdiction to investigate Mohd Nazlan who – prior to his elevation to the Court of Appeal – had in July 2020 convicted and sentenced Najib to 12 years’ jail and a RM210 million fine for misappropriating RM42 million of SRC International’s funds.

The CLA also told Anwar that the allegation has been found to be unmeritorious and the issue is now res judicata.

Res judicata is a Latin phrase that in legal terms means that a matter that has been decided in a court of law cannot be pursued by the same parties in the dispute.

The CLA also expressed alarm that the MACC’s investigation and findings about judge Mohd Nazlan had been made public.

It said such conduct is a gross violation of the doctrine of the separation of powers and tantamount to executive interference with the administration of justice.

“While we recognise the prerogative of the MACC to combat corruption in your country, we are concerned about the impact that this investigation against a sitting judge may have on the Malaysian judicial system and respect for the rule of law.

“As a government, it is important for the executive to respect, protect and uphold the independence of the judiciary, which is the central pillar of the administration of justice,” the CLA said.

The CLA said that by investigating a sitting judge, particularly in the manner in which the investigation was initiated and in releasing the findings, the MACC has sent a worrying message about the role and independence of judges in Malaysia.

It said such action could be perceived as an attempt to intimidate the judiciary and undermine its credibility, which would be detrimental to the rule of law and the public’s trust in public institutions.

On February 24, Chief Justice Tun Tengku Maimun Tuan Mat ruled that the MACC's investigation against Mohd Nazlan was done without following protocols.

She also questioned the timing of the investigation, which was done on the eve of Najib's final appeal to overturn the 12-year jail sentence and RM210 million fine in the SRC International funds.

Tengku Maimun said even though investigative bodies were constitutionally entitled to investigate superior court judges, it must be exercised in good faith and only in genuine cases.

Her remarks were made in her ruling over an application to refer two constitutional questions relating to MACC's investigation against Mohd Nazlan by two lawyers and an activist.

The suit was filed by lawyers Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim on May 7 last year, who sought a court declaration that the MACC was not entitled to investigate serving judges who had not been suspended or removed.