PUTRAJAYA – The Federal Court’s seven-member panel today reserved its decision on two constitutional questions with regard to whether the Malaysian Anti-Corruption Commission (MACC) has the authority to investigate a sitting superior court judge.
Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the panel, said they needed some time to deliberate on the matter.
The panel, comprising acting Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Tan Sri Amar Abang Iskandar Abang Hashim; and Federal Court judges Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Harmindar Singh Dhaliwal, and Datuk Rhodzariah Bujang also heard submissions from all parties during online proceedings.
Three lawyers – Haris Fathillah Mohamed Ibrahim, Nur Ain Mustapa, and Sreekant Pillai – want the court to decide on the two questions of law pertaining to whether criminal investigating bodies are only legally permitted to investigate judges of the high court, Court of Appeal, and Federal Court who have been suspended.
The second question is whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the three superior courts.
The lawyers had filed a suit against MACC chief commissioner Tan Sri Azam Baki, MACC, and the federal government following the commission’s action to open an investigation paper against Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali over a report lodged on allegations of an unexplained sum of more than RM1 million in his bank account.
They seek a declaration that MACC’s investigation against Nazlan is unconstitutional.
Nazlan was the trial judge who convicted and sentenced former prime minister Datuk Seri Najib Razak to 12 years’ jail and a fine of RM210 million on seven charges relating to misappropriation of RM42 million in funds belonging to SRC International Sdn Bhd on July 28, 2020.
At today’s proceeding, lawyer Malik Imtiaz Sarwar, representing the three lawyers, submitted that MACC’s action to publicise investigations against Nazlan was unprecedented.
“Those events can only be understood as having amounted to an attack on the judiciary, even if unintentional,” he said.
Malik said judges would be left vulnerable to the embarrassing machinations of criminal investigation bodies and of potentially being charged with a crime, even if they have done no wrong.
He said an investigation by a criminal investigation body such as MACC, which is under the executive branch, against a serving judge of a superior court, is an investigation into the judiciary as a whole.
“It would undermine judicial independence and damage public confidence in the judiciary,” he said, adding that a specific mechanism addressing judicial misconduct, with the aim of ensuring public confidence in the judiciary, is provided under Article 125 of the federal constitution.
“This mechanism involves hearings before a tribunal established by the Yang di-Pertuan Agong or the Judges’ Ethics Committee (JEC),” he said, adding that the tribunal and the JEC are independent of the executive and legislative branches.
Malik said giving criminal investigation bodies a free hand and unconditional power to investigate judges would give rise to the impression that it is open to the executive, through the criminal investigation bodies, to exert pressure on the judiciary for collateral purposes.
Representing Azam, MACC, and the government, senior federal counsel Liew Horng Bin argued that the applicants’ proposition that no criminal investigation and prosecution can be launched until and unless a serving judge is suspended is flawed.
He said no express provision in the federal constitution bars serving or retired judges from being investigated.
“If this is what they are saying, then a MP or prime minister can rely on this argument to dispute any probe against them,” he said, adding that the chief justice could be seen to play the role of investigator, prosecutor, and judge if she should decide whether a representation should be made to the Yang di-Pertuan Agong for the appointment of tribunal and for suspension of a serving judge to pave the way for criminal investigation and prosecution.
He urged the court to take judicial notice that former chief justices Tun Eusoff Chin and Tun Ahmad Fairuz Sheikh Abdul Halim were investigated by the Anti-Corruption Agency (now MACC) while they were still in active service. – Bernama, November 10, 2022
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