By Timothy Achariam | The Edge Markets

Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali — THE EDGE/SHAHRIN YAHYA

Chief Justice Tun Tengku Maimun Tuan Mat said that the Malaysian Anti Corruption Commission (MACC)’s probe against Court of Appeal (COA) judge Datuk Mohd Nazlan Mohd Ghazali was done without following a certain number of protocols; she also said that the “curious” timing of the investigation without her consultation casts doubt over its authenticity.

Tengku Maimun said this while delivering a unanimous decision at the Federal Court on Friday (Feb 24) over an application to refer two constitutional questions relating to the MACC’s investigation on Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali by two lawyers and an activist.

Tengku Maimun led a seven-member panel in reading out the unanimous decision, among them were Chief Judge of Sabah and Sarawak Tan Sri Amar Abang Iskandar Abang Hashim, acting Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, and Federal Court judges Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Harmindar Singh Dhaliwal, and Datuk Rhodzariah Bujang. 

In the ruling, she said that the protocol was that any investigative body needed to consult with the Chief Justice (CJ) first, before commencing probes against any judge. 

The other protocols were that the Public Prosecutor must also consult with the CJ if they intend to prosecute the said judge, and facts of the investigation cannot be made public.

The questions were posed by appellants activist Haris Ibrahim, and lawyers Nur Ain Mustapa and Sreekant Pillai. 

“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 fides in a criminal investigation,” she said in reading out the judgement via Zoom proceedings on Friday (Feb 24) morning. 

The first question pertains to whether criminal investigating bodies are only legally permitted to investigate judges of the High Court, the COA, and the Federal Court who have been suspended.

The second question pertains to whether the Public Prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the aforementioned courts.

The trio’s application to refer the questions of constitutional law to the apex court was allowed by the High Court. It forms part of the trio’s larger suit against the MACC, the anti-graft agency’s chief commissioner Tan Sri Azam Baki, and the government.

As a High Court judge previously, Nazlan presided over Datuk Seri Najib Razak’s SRC International Sdn Bhd criminal trial, and found the former Prime Minister guilty on all seven charges against him, sentencing him to 12 years’ imprisonment and a RM210 million fine.

In the decision on Friday, Tengku Maimun also highlighted the “curious” timing of the investigation and press statement about the investigation by the MACC and noted that it came before Najib’s final appeal against his SRC conviction at the Federal Court last year. 

“The curious timing of the investigation against Nazlan, which was done without consultation with the judiciary, also casts doubt on whether the investigation was bona fide,” she said. 

She also added that the very notion that a judge is being investigated “is deleterious to the image of the judiciary as a whole”.

Investigation against Nazlan was done without regard for judicial independence

Tengku Maimun then said that upon a cursory reading of the facts of the investigation against Nazlan, it was blatant that it was done ignoring the independence of the judiciary. 

“…it is blatant that any investigations commenced against justice Nazlan were done without regard to judicial independence, as none of the above protocols appeared to have been 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,” she said. 

She also said that it is important that the judiciary is able to carry out its functions freely and independently from external influence and that investigations on judges need to be held to a higher standard. 

“It appears to us that in considering the sacrosanct of judicial independence, the Federal Constitution implies a higher standard on investigative bodies when investigating judges are being investigated,” she said. 

Counsel Datuk Malik Imtiaz Sarwar appeared for the activists, while senior federal counsel Liew Horng Bin represented the MACC, Azam, and the federal government.

Lawyer New Sin Yew appeared for the Malaysian Bar, which was an interested party in the case. 

It was reported on Thursday (Feb 23) that Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman said the MACC had handed over the report against Nazlan to Tengku Maimun. 

This was relayed to Azalina via a letter by the MACC; however, she said there was no other information in the aforementioned letter. 

On April 23 last year, local newspapers reported that MACC Chief Commissioner Tan Sri Azam Baki confirmed that they had begun an investigation into Mohd Nazlan relating to allegations of unexplained monies in his account allegedly linked to 1MDB (1Malaysia Development Bhd).