Apex court reserves verdict on constitutional questions over MACC probe against judge

A seven-member Federal Court panel today reserved its decision on two constitutional questions on whether the Malaysian Anti-Corruption Commission (MACC) has the authority to investigate a sitting superior court judge.

Chief Justice Tengku Maimun Tuan Mat, who chaired the panel, said they needed time to deliberate. 

The panel, comprising acting chief judge of Malaya Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Amar Abang Iskandar Abang Hashim, and Federal Court judges Nallini Pathmanathan, Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal, and Rhodzariah Bujang, also heard submissions from the parties during online proceedings.

The first question brought by lawyers Haris Fathillah Mohamed Ibrahim, Nur Ain Mustapa and Sreekant Pillai was whether criminal investigating bodies are only legally permitted to investigate judges of the High Court, the Court of Appeal and the Federal Court who have been suspended.

The second question was whether the public prosecutor is empowered to institute or conduct proceedings for an offence against serving judges of the three superior courts.

The lawyers filed a lawsuit against MACC chief commissioner Azam Baki, MACC and the federal government following the commission's move to open an investigation paper against Court of Appeal judge Mohd Nazlan Ghazali after a report lodged over allegations of an unexplained sum of more than RM1 million in his bank account.

They sought a declaration that MACC's investigation against Nazlan was unconstitutional.

Nazlan was the trial judge who, on July 28, 2020, convicted and sentenced former prime minister Najib Razak to 12 years in jail. He also fined him RM210 million for seven charges relating to the misappropriation of RM42 million in funds belonging to SRC International.

At today's proceeding, lawyer Malik Imtiaz Sarwar, representing the three lawyers, submitted that MACC's action to publicise the investigations against Nazlan was unprecedented.

"Those events can only be understood as having amounted to an attack on the judiciary, even if unintentionally," 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 had done no wrong. 

He said an investigation by a criminal investigation body such MACC, which is under the executive branch, against a serving judge of a superior court, was 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 for 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 an impression that it is open to the executive, through the criminal investigation bodies, to exert pressure on the judiciary for collateral purposes.
 
Senior federal counsel Liew Horng Bin, representing Azam, MACC and the government, argued that the applicants' proposition that no criminal investigation and prosecution can be launched until and unless a serving judge is suspended was flawed.

He said there was no express provision in the Federal Constitution that barred serving or retired judges from being investigated.

"If this is what they are saying, then a member of Parliament or prime minister can rely on this argument to dispute any probe against them," he said, adding that the chief justice could be seen as playing the role of investigator, prosecutor and judge if she decided whether a representation should be made to the Yang di-Pertuan Agong for the appointment of a tribunal and for the 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 Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim were investigated by the Anti-Corruption Agency, now known as MACC, while they were still in active service.