Public confidence in judiciary was affected when MACC said it was investigating appeals judge, says CJ

PUTRAJAYA: Public confidence in the judiciary was tarnished when the Malaysian Anti-Corruption Commission (MACC) issued a statement on its investigation into Court of Appeal judge Justice Mohd Nazlan Mohd Ghazali over allegations of unexplained money in his bank account, says the Chief Justice.

CJ Tengku Maimun Tuan Mat made the remark during a submission by Senior Federal Counsel (SFC) Liew Horng Bin, who appeared for the defendants, in a hearing of an application by two lawyers and an activist in a legal challenge to determine the constitutionality of the investigation against Justice Mohd Nazlan, here, on Thursday (Nov 10).

The top judge questioned SFC Liew on what would happen if the allegations were baseless and the investigation proved fruitless.

SFC Liew said it would be up to the prosecutorial discretion whether or not to pursue a case.

The CJ said the prosecutorial discretion was not being questioned at hand but rather the impact the investigation has on the independence of the judiciary.

SFC Liew responded that public confidence would be restored if the judge was cleared of the allegations.

"If they (the investigating body) never come out with anything, then you must take it there is no basis to the complaint," SFC Liew said.

CJ: But the public confidence is already affected. The moment a statement is made that a judge is being investigated, that is already impacting the public confidence. Then you say to just wait for the investigation.

SFC Liew: In high profile cases, it is always a practice of the agency and the Attorney General to issue press statements on the progress of the investigations.

Earlier, lawyer Datuk Malik Imtiaz Sarwar, who appeared for the plaintiffs, said their legal challenge was only concerning sitting judges at the superior courts and not retired or suspended judges nor judges from the subordinate courts.

He submitted that an investigation into a sitting judge is akin to an investigation into the judiciary itself.

The investigation into Justice Mohd Nazlan was widely reported in the media and Malik said it was highly embarrassing for the judiciary.

After the submissions, CJ Tengku Maimun reserved the judgment on the suit to a later date.

"We need some time to deliberate on this matter," she said before adjourning the proceedings.

On July 19, activist Haris Ibrahim and lawyers Nur Ain Mustapha and Sreekant Pillai were given the green light by the High Court to bring their legal questions to the Federal Court for it to decide on constitutional issues relating to the investigation, on grounds that the apex court was the correct and appropriate forum to hear matters that affect the judiciary.

They first filed the originating summons on May 6 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 seek 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 the allegations following official reports lodged with it on the matter.

They claimed that the purported investigation was a violation of the independence of the judiciary and the separation of powers by the Executive branch.

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.