Probe of judge Nazlan didn’t follow protocol, says Federal Court

PUTRAJAYA: The Federal Court has held that judges are not immune from criminal investigation or prosecution but there are protocols involved, says Chief Justice Tengku Maimun Tuan Mat.

In a unanimous decision, a seven-judge panel chaired by the Chief Justice ruled that criminal investigative bodies were constitutionally entitled to investigate superior court judges, and the Public Prosecutor to conduct criminal proceedings against them, but such powers must be exercised in good faith and only in genuine cases.

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“Because they are serving judges, criminal investigations against them are subjected to a higher standard in light of the doctrine of judicial independence,” she said here on Friday (Feb 24).

The Chief Justice was delivering the decision on a legal challenge by a group consisting of activist Haris Ibrahim and lawyers Nur Ain Mustapa and Sreekant Pillai following the Malaysian Anti-Corruption Commission (MACC) investigation into Court of Appeal judge Justice Mohd Nazlan Mohd Ghazali last year.

They filed an originating summons at the High Court, naming the MACC and its chief commissioner Tan Sri Azam Baki and the government as defendants.

The High Court then referred the case to the Federal Court to answer two legal questions raised in the matter.

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CJ Tengku Maimun said it was clear that the investigations into Justice Mohd Nazlan were done without any regard to judicial independence as protocols were not followed.

“Further, the manner in which the investigations were publicised by way of a press statement (by the MACC) also does not appear to preserve public confidence in the independence of the judiciary.

“In addition, we take note that at the time the press statement was issued there was significant bias in the media that former prime minister Datuk Seri Najib Razak’s final appeal in the SRC International Sdn Bhd case was soon coming up for hearing before the Federal Court,” she said.

The country’s top judge said the very announcement of the investigation into the judge was damaging to the image of the institution.

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She reminded parties that complaints were merely complaints; they could be entirely true or calculated to damage 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 at all times, it must be borne in mind that judges are considered to be citizens of the highest moral character.

“They cannot therefore be beyond reproach for if they commit a crime, they are more than liable to answer for it,” she added.

The Federal Court then remitted the matter to the High Court to be disposed of by the presiding judge.

The court did not make an order as to costs.

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Other judges on the bench were Chief Judge of Sabah and Sarawak Justice Abang Iskandar Abang Hashim, Federal Court judges Justices P. Nallini, Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal, Rhodzariah Bujang and Mohamad Zabidin Mohd Diah.

In May last year, the plaintiffs filed the originating summons, claiming that the investigation against Justice Mohd Nazlan was a violation of the doctrine of separation of powers as the judiciary was an independent branch of government.

They sought a court declaration that the investigation was unconstitutional.

They were also seeking a declaration that the Public Prosecutor was not empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal and Federal Court.

MACC’s investigations followed claims by blogger Raja Petra Kamaruddin that there were funds transferred to Mohd Nazlan’s account during his time as the group general counsel and company secretary of Maybank.

Azam had said the probe was launched by MACC due to a report lodged over the allegations.

Justice Mohd Nazlan was the judge who convicted and sentenced Najib for the misappropriation of RM42mil of SRC International Sdn Bhd funds.

Justice Mohd Nazlan also lodged a police report against Raja Petra on April 21 last year, denying the accusations which he said were malicious, baseless and aimed at tarnishing his credibility as a judge.