High Court rules questions of law in judge Nazlan probe can be referred to apex court

The Kuala Lumpur High Court today granted an application by two lawyers and an activist to refer two questions of law regarding the Malaysian Anti-Corruption Commission's (MACC) investigation against Court of Appeal judge, Mohd Nazlan Ghazali, to the Federal Court.
 
The questions are on whether criminal investigation bodies including the MACC are only legally permitted to investigate High Court, Court of Appeal and Federal Court judges who have been suspended under Article 125 (5) of the Federal Constitution, and whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges pursuant to Article 145 (3) of the Federal Constitution.

Judge Noorin Badaruddin ruled that the Federal Court was the correct and appropriate forum to hear matters that affect the judiciary as a whole, as the questions arising in this matter relate to provisions of the Federal Constitution concerning the independence of the judiciary vis-à-vis the doctrine of separation of powers.

"It is apparent that the investigation by the MACC on a serving judge of the Superior Court is viewed by the applicants and undeniably by many quarters among the public as an encroachment of the separation of powers. The investigation is reasonably viewed as having given rise to the impression that the judiciary is under attack which has a bearing on the public perception and confidence in the judiciary. 

"As the present matter is going on, this court takes cognisance of the fact of the differences of opinions and views given on this issue and this court cannot disagree that this is a matter of fundamental importance because it affects the judiciary as a whole. All these underscore the urgency of the matter. 
 
"It cannot be denied that this court is empowered to determine the questions but it becomes a question of concern of having to go through the appellate process on a matter that is important to the judiciary as a whole," she said.

The judge said a definitive and final pronouncement by the Federal Court as the highest court in the land on the questions arising herein which have a direct bearing on public confidence in the independence of the judiciary was therefore essential.

"The court is of the considered view that a definitive and final pronouncement by the Federal Court on the questions posed by the applicants will benefit both parties in a speedy and economic final determination of the proceedings. Thus, the application is allowed with no order as to costs," she said, fixing Oct 19 for further case management.

Nur Ain Mustapa and Sreekant Pillai, as well as activist Haris Fathillah Mohamed Ibrahim filed an originating summons, among others to refer the two questions to the Federal Court and to seek a declaration that the investigation conducted by the MACC against judge Nazlan is unconstitutional.

Meanwhile, the three plaintiffs through a supporting affidavit filed with the originating summons said the media had reported that the commission had commenced a probe against Nazlan over allegations of unexplained money in his account following official reports lodged with it on the matter.

They claimed that the investigation was a violation by the executive branch of the independence of the judiciary and the separation of powers.

Nazlan himself, who heard and convicted former prime minister Najib Razak of misappropriating SRC International funds, has lodged a police report over news articles alleging that he was being investigated over unexplained money in his bank account.