KUALA LUMPUR (Nov 10): The Federal Court has reserved its decision on two constitutional questions posed by a trio about whether criminal investigating bodies like the Malaysian Anti-Corruption Commission (MACC) have the authority to investigate sitting superior court judges.
Chief Justice Tun Tengku Maimun Tuan Mat — who led a seven-member panel — said that they needed some time to deliberate on the matter, after listening to submissions from all parties on Thursday (Nov 10).
Chief Judge of Sabah and Sarawak Tan Sri Amar Abang Iskandar Abang Hashim, acting Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, Federal Court judges Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Harmindar Singh Dhaliwal, and Datuk Rhodzariah Bujang were the others on the panel.
The questions posed by the appellants — activist Haris Ibrahim, and lawyers Nur Ain Mustapa and Sreekant Pillai — were in relation to the MACC's investigation of Court of Appeal (COA) judge Datuk Mohd Nazlan Mohd Ghazali.
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.
In the originating summons filed on May 6, the plaintiffs were also seeking a declaration that the MACC's investigation of Nazlan was unconstitutional.
Datuk Malik Imtiaz Sarwar and Surendra Ananth represented the appellants, while senior federal counsel Liew Horng Bin appeared for the respondents. Lawyer New Sin Yew appeared as amicus curiae (a friend of the court) on behalf of the Malaysian Bar.
During submissions, Malik said the MACC's investigation into Nazlan was "unprecedented" and that the alleged publicising of the investigation amounted to an attack on the judiciary, "even if unintentional".
He argued that it was not the appellants' position that judges should never be made subjects of investigations, but that a balance should be struck between holding the judges accountable without compromising the public's confidence in the judiciary.
The Federal Constitution, he said, already has mechanisms to address judicial misconduct while still ensuring public confidence in the judiciary. This could be done through a tribunal established by the Agong or the Judges’ Ethics Committee (JEC), which are independent from the executive or legislative branch, he said.
The questions posed to the apex court are important as it involved how criminal investigating bodies should approach investigations into a judge, he further said.
"Giving criminal investigation bodies a free hand, and an unconditional power to investigate into judges, would be deleterious to public confidence in the judiciary.
"...this leaves judges vulnerable to the embarrassing machinations of criminal investigation bodies and of potentially being charged for a crime, even if they have done no wrong," he argued.
Senior federal counsel Liew, meanwhile, countered that there is no express provision in the Federal Constitution or in any Act of Parliament which prohibits judges, whether serving or retired, from being investigated or prosecuted for a criminal offence.
He pointed out that arguments where investigations could only commence against a sitting judge after they were suspended from duties was not justified, and could set a dangerous precedent.
"A serving Member of Parliament [or prime minister] may very well rely on the same ‘core features’ of constitutional design to argue that no criminal investigation or prosecution can be initiated against him without the consent of the Agong or Speaker of the House of Representatives or the House of Representatives," he argued.
It was reported in May this year that the MACC had begun an investigation following complaints it received against the sitting judge. The investigation, which started in March, had since been completed and the investigation papers sent to the Attorney General's Chambers on May 18 for the next course of action.
However, in September, the anti-graft chief reportedly said that the papers were returned to the MACC for further investigation.
The investigation has drawn flak from many quarters, including the Malaysian Bar, Opposition leaders, and civil groups. The MACC has maintained that it is empowered to conduct such investigations.
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.
Both the COA and the Federal Court upheld Nazlan's decision, and Najib is currently serving his prison sentence.
Nazlan is now a COA judge, having been elevated in February.