LAW minister Datuk Seri Azalina Othman Said acted injudiciously in writing her letter of reply dated March 20 to Datuk Seri Najib Razak’s solicitors, Shafee & Co.
It was reported yesterday that Azalina in her letter confirmed that Justice Datuk Mohd Nazlan Mohd Ghazali had violated the Judges’ Code of Ethics, had a conflict of interest when presiding over Najib’s SRC International case, and that the Malaysian Anti-Corruption Commission (MACC) had written to the chief justice to recommend disciplinary proceedings against Nazlan.
The minister’s letter was written on March 20. This is after the Federal Court delivered its judgement on February 24, stating that the MACC probe into Nazlan was unconstitutional, illegal and undermined judicial independence.
The Federal Court judgement is reported in the Malayan Law Journal Reports: see Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (the Federal Court judgment).
The minister’s letter amounts to a contempt of court. It totally disregards, and is disrespectful of, the Federal Court judgment.
It is a contumelious challenge to the Federal Court judgment by seeking to revive the MACC report after the Federal Court has already said that the MACC investigation was not genuine, not made in good faith, and was carried out for a collateral purpose to assist Najib in his SRC appeal.
The chief justice delivered the Federal Court judgment, which was a unanimous decision by a panel of seven Federal Court judges.
It is thus insolent to the chief justice representing the judiciary, in the circumstances, to write that she has not complied with MACC’s recommendation to commence disciplinary proceedings against Nazlan, which will require her to disregard the findings of the Federal Court judgment.
The Federal Court said, as per paragraph 89 of the Federal Court judgement: “If an investigation or prosecution against a serving judge is found to have been commenced for collateral purposes, the courts are entitled, when reviewing them, to set them aside or pass any other remedy that counts as suitably moulded relief.”
The Federal Court judgment found the MACC investigation was not bona fide on the following grounds:
- The MACC investigation is unconstitutional, because it did not comply with established protocols designed to protect judicial independence from executive interference;
- MACC did not seek leave from the chief justice to investigate a sitting superior court judge;
- MACC did not obtain prior leave from the chief justice but acted on its own accord to publicise the facts of the investigation and contents of the investigation of a superior court judge; and
- MACC did not comply with the protocol of maintaining the confidentiality of the contents related to the investigation of a superior court judge.
The Federal Court found that MACC investigation was carried out for a collateral purpose:
- The failure to consult the chief justice, even if the chief justice is the subject of a criminal complaint, is a very strong indication of a lack of bona fide in a criminal investigation (paragraph 79);
- The manner in which the investigation was carried out is an indicator of the lack of good faith. The very notion of a judge being investigated is deleterious to the image of the judiciary as a whole.
Thus, the posting or publicising such an investigation is wholly unnecessary unless the judiciary, represented by the chief justice, has cleared the publication in the interest of the judiciary itself (paragraph 80);
- A cursory reading of the facts and an examination of the documentary evidence on record demonstrate that it is blatant that any investigations commenced against Justice Nazlan were done without regard to judicial independence, as none of the protocols appeared to have been followed (paragraph 84);
- The manner in which the investigations were publicised by way of a press statement also did not appear to preserve or lend confidence to judicial independence (paragraph 85); and
- The Federal Court took note that at the time the MACC press statement was issued, Datuk Seri Najib Razak’s final appeal in the SRC International case was coming up for hearing before the Federal Court.
The former prime minister even relied on an argument of supposed bias on the part of Justice Nazlan and his former employment with Maybank as grounds to nullify his conviction.
The Federal Court said “the curious timing of the investigation against Justice Nazlan which was done without consultation with the judiciary also casts doubt on whether the investigation against Justice Nazlan was bona fide” (paragraph 86).
The effect of Azalina’s letter appears to be a form of executive interference with the independence of the judiciary.
The independence of the judiciary suffered a devastating blow in the 1988 judicial crisis and its aftermath. It has been a slow and painful recovery to regain public confidence in the judiciary since.
The protocols for the investigation and prosecution of sitting superior judges have to be complied with to uphold judicial independence.
Ministers and politicians should take heed of the words of Sultan Azlan Muhibbuddin Shah Sultan Yussuff Izzuddin Shah Ghafarullahu-lah, the late Sultan of Perak and former lord president of the Federal Court:
“Judicial independence is a cornerstone in any democratic country, as every lawyer and politician knows. The judges are independent of all – the executive, Parliament and from within themselves – and are free to act in an independent and unbiased manner.
“No member of the government, no MP, and no official of any government department has any right whatsoever to direct or influence the decision of any judges.
“The judges are not beholden to any government. They owe no loyalty to ministers. They have longer professional lives than most ministers. They, like civil servants, see governments come and go.
“They are ‘lions under the throne’ but that seat is occupied in their eyes, not by kings, presidents or prime ministers, but by the law and their conception of public interest.
“It is to that law and to that conception that they owe their allegiance. In that lies their strength.” – The Vibes, April 7, 2023
William Leong is Selayang MP
.jpg)
