PUTRAJAYA: The Malaysian Anti-Corruption Commission (MACC) investigation into Justice Mohd Nazlan Mohd Ghazali was carried out without following protocol and showed a lack of bona fide, the Federal Court has ruled.
A seven-judge panel chaired by Chief Justice Tengku Maimun Tuan Mat held that while criminal investigative bodies were constitutionally entitled to investigate and to conduct criminal proceedings against superior court judges, such powers must be exercised in good faith and only in genuine cases.
“Because they are serving judges, criminal investigations against them are subjected to a higher standard in light of the doctrine of judicial independence,” she said here yesterday.
The Chief Justice was delivering the unanimous decision in a legal challenge brought by a group comprising activist Haris Ibrahim and lawyers Nur Ain Mustapa and Sreekant Pillai following the MACC’s investigation into Justice Mohd Nazlan, who is a Court of Appeal judge.
They filed an originating summons at the High Court naming the MACC and its chief commissioner Tan Sri Azam Baki and the government as defendants.
The High Court then referred the case to the Federal Court to answer two legal questions raised in the matter.
CJ Tengku Maimun said it was clear that the investigations into Justice Mohd Nazlan were done without any regard to judicial independence as protocols were not followed.
“There is no evidence, at least at this stage of the case, that the Chief Justice was ever consulted. There is no deposition from the respondents to this effect in their affidavits. The manner in which the investigations were publicised by way of a press statement (by the MACC) also does not appear to preserve or lend confidence to the independence of the judiciary,” she said.
Although the press statement did not mention the judge’s name, the court said contemporaneous media reports which had mentioned Justice Mohd Nazlan and a blog post were sufficient for any reasonable citizen to deduce the identity of the judge in question.
“That fact in itself can tarnish the image of an independent judiciary,” she added.
The court also took note that at the time the press statement was issued, former prime minister Datuk Seri Najib Razak’s final appeal in the SRC International Sdn Bhd case was coming up for hearing at the Federal Court.
The court said in demonstrating the bona fide of a criminal investigation when investigating a criminal complaint against a serving judge, the relevant criminal investigative body must first consult the Chief Justice before commencing any investigation.
“This does not mean that the Chief Justice now has the power to sanction or stymie any investigation, rather simply the right to be informed on what is transpiring with a judge and hence, the judiciary as a whole.
“The failure to consult the Chief Justice, even if the Chief Justice is the subject of a criminal complaint, is thus a very strong indication of a lack of bona fide in a criminal investigation,” said CJ Tengku Maimun.
Reminding parties that complaints were merely complaints, she said these could entirely be true or calculated to damage the judge’s credibility or reputation.
“The public prosecutor must consult the Chief Justice during the course of giving instructions during investigations and in respect of his decision to prosecute at all times.
“It must be borne in mind that judges are considered to be citizens of the highest moral character. They cannot therefore be beyond reproach for if they commit a crime, they are more than liable to answer for it,” she added.
The Federal Court then remitted the matter to the High Court for the presiding judge to dispose the matter.
Other judges on the bench were Court of Appeal president Justice Abang Iskandar Abang Hashim, Federal Court judges Justices P. Nallini, Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal, Rhodzariah Bujang and Mohamad Zabidin Mohd Diah.
In May last year, the plaintiffs had filed the originating summons, claiming that the investigation against Justice Mohd Nazlan was a violation of the doctrine of separation of powers, while seeking a court declaration that the investigation was unconstitutional.
They were also seeking a declaration that the public prosecutor was not empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal or Federal Court.
MACC’s investigations came following claims by blogger Raja Petra Kamaruddin that there were funds transferred to Mohd Nazlan’s account during his time as the group general counsel and company secretary of Maybank.
