KUALA LUMPUR: Activist Haris Ibrahim and two lawyers have been allowed to bring their case to the Federal Court for it to decide on constitutional issues relating to the Malaysian Anti-Corruption Commission (MACC)'s investigation of Court of Appeal judge Justice Mohd Nazlan Mohd Ghazali.
This follows the High Court's decision allowing an application by Haris, along with lawyers Nur Ain Mustapha and Sreekant Pillai, to have the matter referred to the apex court.
In her brief decision, Justice Noorin Badaruddin said on Tuesday (July 19) there were important issues to be addressed by the court where ultimately, the applicants sought a declaration that the MACC investigation of Justice Mohd Nazlan was unconstitutional.
"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 amongst the public as an encroachment of the separation of powers that is the independence of the judiciary.
"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," she said.
The judge said while it could not be denied that the High Court was empowered to determine the legal questions raised by the applicants, it became a question of concern of having to go through the appellate process on a matter that was important to the judiciary as a whole.
She said the Federal Court was the "correct and appropriate forum" to hear matters that affect the judiciary.
The matter would then have a definitive and final pronouncement by the Federal Court as the highest court in the land, which would have direct bearing on public confidence and on the independence of the judiciary, and this would benefit both parties with a speedy and economic final determination.
"The application is therefore allowed with no order as to costs," added Justice Noorin.
On May 6, plaintiffs Haris, Nur Ain and Sreekant filed the originating summons to seek a declaration that the MACC is not entitled to investigate serving judges unless they have been suspended or removed.
They named MACC's chief commissioner Tan Sri Azam Baki, the MACC and the Malaysian government as the first, second and third defendants respectively.
They also sought a declaration that a public prosecutor is not empowered to institute or conduct any proceedings for an offence against serving court judges and that the investigation against Justice Mohd Nazlan was unconstitutional.
Justice Mohd Nazlan, who was the presiding judge in the SRC International Sdn Bhd case involving former prime minister Datuk Seri Najib Razak, lodged a police report over news articles alleging that he was being investigated for unexplained money in his bank account.
In a supporting affidavit, the plaintiffs said the media had reported that the MACC had commenced a probe against Justice Mohd Nazlan over allegations of unexplained money in his account following official reports lodged with it on the matter.
They claimed that the purported investigation is a violation by the executive branch of the independence of the judiciary and the separation of powers.
They raised two legal questions 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.
In the proceedings on Tuesday, lawyer Datuk Malik Imtiaz Sarwar appeared for the plaintiffs while Solicitor-General Datuk Ahmad Terrirudin Mohd Salleh appeared for the defendants.