KUALA LUMPUR – The Federal Court’s ruling on the Malaysian Anti-Corruption Commission’s (MACC) probes into judge Datuk Mohd Nazlan Ghazali as failing to adhere to protocols has put the status of investigations into question.
Speaking to The Vibes, several lawyers opined that the anti-graft body’s failure to adhere to certain protocols, including seeking leave from Chief Justice Tun Tengku Maimun Tuan Mat to initiate probes and keeping investigations confidential, might impact the credibility of its final report.
According to former Malaysian Bar president Salim Bashir Bhaskaran, any probes against serving judges must satisfy the highest standards of investigations and transparency “to safeguard the sacrosanct principles of judiciary independence.”
“The MACC probe (into Nazlan) stands independently of its own – but in light of what was spelt out by the Federal Court in its decision, the non-observance of certain protocols during investigations may cast aspersions to (the probe’s) due process,” he said.
“Any form of collateral action to bring judiciary powers into disrepute and frustrate a fair proceeding by way of obnoxious means must be condemned.”
Echoing similar sentiments, lawyer Lim Wei Jiet said that based on his understanding of the Federal Court’s judgement on the suit brought by three lawyers to challenge MACC’s probe, the commission has violated the law.
“From my reading of the grounds of judgement, it appears that MACC’s probe (against Nazlan) is against the law.
“MACC will have to recommence their investigations based on established protocols set out by the Federal Court in paragraph 81 of their judgement,” he said.
The paragraph of the judgement document Lim cited outlines a set of protocols which must be followed when a judge is investigated.
One of the rules states that the relevant criminal investigative body should first seek leave from the chief justice to investigate any judge, and cannot of their own accord publicise or advertise investigation facts or contents of a superior court judge without prior approval of the chief justice.
It also states that the contents of probes against a judge must remain confidential at all times as “complaints can be entirely true or utterly spurious and calculated at damaging the judge’s credibility or reputation.”
“The public prosecutor too must consult the chief justice during the course of giving instructions during investigations and in respect of his decision to prosecute,” it added.
Principle of judicial independence being sacrosanct
As such, senior law lecturer Daniel Abishegam asserted that the protocols are not a way of giving a judge “special privilege or immunity”, but are instead meant to ensure judicial independence as a whole.
“Judges must never feel fear to rule in any particular way because of the potential repercussions that may happen against them.
“The high court’s ruling (against MACC) is effectively a reprimand and also sets a precedent for future probes on sitting members of the judiciary,” he said, stressing that the ruling does not mean that judges “have immunity and can commit whatever crimes they want”.
He added that while such protocols are not “written law”, the Federal Court’s decision aligns with the principle of judicial independence being sacrosanct.
“These protocols are appropriate and reasonable given the important constitutional idea that is being protected.
“If MACC wants to continue the probe, they can. It’s just that investigations must be done in consultation with the chief justice,” said Daniel, the academic director of Advance Tertiary College.
Nazlan presided over former prime minister Datuk Seri Najib Razak’s SRC International trial at the high court, and found the former Pekan MP guilty of abuse of power, criminal breach of trust and money laundering, and sentenced him to 12 years in jail and a RM210 million fine.
However, last April, MACC announced investigations against the judge after receiving a report about an unexplained sum of RM1 million in Nazlan’s bank account. – The Vibes, March 4, 2023
