KUALA LUMPUR (May 6): Two lawyers and an activist have launched legal action against the Malaysian Anti-Corruption Commission (MACC) to determine pertinent constitutional questions following its investigation into Court of Appeal (COA) Judge Datuk Mohd Nazlan Mohd Ghazali.
On Friday (May 6), Haris Ibrahim, Nur Ain Mustapa and Sreekant Pillai filed an originating summons (OS), which also named the anti-graft agency's chief commissioner Tan Sri Azam Baki and the government as defendants.
According to a statement issued by their lawyers Datuk Malik Imtiaz Sarwar and Surendra Ananth, the OS is to determine important constitutional matters concerning separation of powers and the independence of the judiciary arising from the investigation.
"It is not our view that judges of the High Court, the COA and the Federal Court are immune from criminal investigation or prosecution. Like all of us, they must be held accountable for any crimes they may have committed.
"However, the power to investigate and institute criminal proceedings must be balanced against the need to ensure public confidence in the judiciary," they said.
They added that the constitution provides a mechanism to ensure accountability of judges without undermining public confidence in the judiciary.
"That mechanism involves complaints being made in writing to the Chief Justice and, where such complaints warrant removal of a judge, the appointment of a tribunal to determine that complaint. In the meantime, the judge concerned can be suspended."
They noted that MACC's powers to investigate must be read as being subject to this mechanism and a "harmonised" approach should be taken to preserve public confidence in the judiciary, while holding the judges accountable.
Among others, they are seeking a declaration that criminal investigation bodies, including the MACC, are not entitled to investigate serving judges of the High Court, the COA and the Federal Court, except when they are suspended or removed pursuant to Article 125(5) and Article 125(3) of the Federal Constitution respectively.
They are also seeking a declaration where the public prosecutor is not empowered to conduct any proceedings for an offence against serving judges of the three courts.
Additionally, they are seeking a declaration that MACC's investigation on Nazlan is unconstitutional.
Last week, MACC confirmed that investigation papers have been opened against Nazlan, following complaints it received against him. It said the investigation was still in its early stages, adding that it was within its purview to investigate public officials, including judges in accordance with the MACC Act 2009.
As a High Court judge, Nazlan had presided over former prime minister Datuk Seri Najib Razak's SRC International Sdn Bhd criminal trial and found him guilty on all seven charges. Nazlan was elevated to the COA in February this year.
In March and April, the judiciary and Nazlan himself lodged police reports against portals Malaysia Now and Malaysia Today over articles alleging Nazlan's involvement in 1Malaysia Development Bhd (1MDB) and its subsidiary SRC International before he became a judge.
In one of the articles, blogger Raja Petra Kamarudin alleged that Nazlan was being investigated over an unexplained RM1 million in his bank account, purportedly from fugitive financier Low Taek Jho, better known as Jho Low, who is said to be the "mastermind" in the heist of billions of dollars belonging to 1MDB.
Nazlan has maintained that the allegations are false and malicious, and aimed at undermining his credibility and interfering with the administration of justice.
The investigations have drawn flak from many quarters including the Malaysian Bar, opposition leaders and civil groups.