Here’s everything wrong with MACC’s probe against the judge who convicted Najib in High Court

In April last year, the Malaysian Anti-Corruption Commission (MACC) launched an investigation against Court of Appeal Judge YA Dato’ Mohd Nazlan bin Mohd Ghazali JCA, a move that many saw as undermining the rule of law. While judges are not above the law, the public nature of the probe raised a lot of concerns from the public regarding the independence and impartiality of the Judiciary.

In fact, the Malaysian Bar even held an extraordinary general meeting (EGM) in response to the public probe and passed a resolution urging Attorney-General Tan Sri Idrus Harun to take all necessary steps to protect the institution of the Judiciary. Furthermore, a ‘Walk for Judicial Independence’ (WFJI) peaceful demonstration was also planned to take place on 17 June 2022, though the march ultimately ended before it even began due to intervention by the Royal Malaysia Police (PDRM).

As reported by FMT, the investigation against Nazlan was opened after a report was lodged about an alleged unexplained sum of more than RM1 million in his bank account. The Court of Appeal judge had later lodged a police report over the allegations which he deemed as “false, baseless and malicious” and aimed at undermining his credibility as a judge.

In case you are not aware, Judge Nazlan was the High Court judge who convicted and sentenced Datuk Seri Najib Razak to 12 years imprisonment and RM210 million fine for misappropriating RM42 million of SRC International Bhd funds. Both the Court of Appeal and Federal Court upheld the verdict following appeals from the former Prime Minister.

MACC Chief Commissioner Tan Sri Azam Baki subsequently announced the completion of the probe and that the investigation paper has been sent to the Attorney-General’s Chambers (AGC) on 18 May 2022. However, while the AGC confirmed that it has received the investigation papers, no action has been taken up until this day.

However, the MACC probe is now in the public eye once again after a judicial review over MACC’s investigation into Justice Nazlan was heard in the Federal Court recently. As reported by NST, the action, filed by plaintiffs Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim on 7 May 2022 sought to declare that MACC was not entitled to investigate serving judges unless the latter had been suspended or removed.

In her ruling on the aforementioned suit, the Right Honourable Chief Justice Tun Tengku Maimun binti Tuan Mat asserted that the probe against Nazlan was done without following protocols. Among the protocols that must be adhered to but were blatantly disregarded by MACC include:

1. The relevant criminal investigative body should first seek leave from the Chief Justice to investigate any Judge. The Chief Justice might know details that the investigative body does not and, in any case, informing the Chief Justice is necessary as a safeguard of judicial independence

2. A criminal investigative body cannot on their own accord publicise or advertise the fact of investigation or the contents of the investigation of a Superior Court Judge without prior approval of the Chief Justice. The Chief Justice might agree to publication if it is in the interest of the Judiciary

3. The entire contents of investigations against a Judge must remain confidential at all times. It must be remembered that complaints are merely that – complaints. They can be entirely true or utterly spurious and calculated at damaging the Judge’s credibility or reputation. All things considered, whether the complaint is true or not is beside the point having regard to the fact that the relevant Judge is presumed innocent until proven otherwise. Yet, sometimes even the presumption of innocence is an illusory concept considering that the fact of a Judge being accused of a crime is enough to affect his reputation and the reputation of the Judiciary as a whole

4. 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. If there is ample evidence, the Chief Justice too can move to mobilise the ethics and disciplinary measures either under the Code or tribunalisation under Article 125

In relation to that, the Chief Justice iterated that there was no evidence, at least at this stage of the case, that she was ever consulted by MACC on the probe against Judge Nazlan. Her Ladyship Tengku Maimun also elaborated that investigative bodies are constitutionally permitted to investigate superior court judges, but it must be done in good faith and only in genuine cases. Hence, that is why the aforementioned protocols must be adhered to.

As such doesn’t seem to be the case for MACC’s probe against Judge Nazlan. Her Ladyship Chief Justice said,

“Najib even relied on the supposed bias on the part of Nazlan and his former employment with Maybank as grounds to nullify his conviction. The curious timing of the investigation against Nazlan, which was done without consultation with the Judiciary, also casts doubt on whether the investigation against Nazlan was bona fide.”

In the judgement, the Federal Court further iterated that any abuse of powers such as using them for collateral purposes will only pave way to possible offences such as “abuse of power or obstruction of justice”. Moreover, it could also constitute actionable complaints through the Courts’ statutory review powers.

Her Ladyship Chief Justice stressed,

We would postulate that in demonstrating the bona fides of a criminal investigation, the scheme of the FC, having accepted the Chief Justice as the head of the Judiciary, requires that when investigating a criminal complaint, the relevant criminal investigative body must first consult the Chief Justice before commencing any investigations into the said Judge.

“This does not mean that the Chief Justice now has the power to sanction or stymie any investigations, rather, simply the right to be informed on what is transpiring with a Judge and hence the Judiciary as a whole.”

The investigation by MACC is even more questionable when you consider that it was made based on a contentious blogpost which the Office of the Chief Registrar of the Federal Court deemed to contain false, baseless and malicious accusations. While MACC’s press statement didn’t refer to Justice Nazlan by name, contemporaneous media reports and the earlier spurious blogpost all do refer to him, which are sufficient to enable any reasonable citizen to deduce or believe that Justice Nazlan was suspected of having committed a crime. This in itself can tarnish the image of an independent Judiciary.

Her Ladyship Tengku Maimun also singled out the manner in which the investigations were announced by MACC. She asserted that “the manner in which the investigations were publicised by way of a press statement also does not appear to preserve or lend confidence to the independence of the Judiciary”.

Her Ladyship Chief Justice noted that at around 23 April 2022, The Star newspaper carried a report which revealed that MACC confirmed that an investigation had indeed commenced against Justice Nazlan. The report said that this was based on several reports that MACC had received.

Hence, in her judgement, Her Ladyship Tengku Maimun stressed that the sacrosanct importance of judicial independence in the Federal Constitution implies a higher standard on criminal investigative bodies when they investigate judges. She further elaborated,

“Putting it another way, when criminal investigative bodies investigate serving Superior Court Judges, they are not to violate the doctrine of judicial independence. If, for instance, it can be demonstrated that an investigation was conducted for a collateral purpose, then the ill-intended investigation is liable to be completely set aside when judicially reviewed.

Moving forward, MACC and other investigative bodies must follow proper protocols and the specific pathway when conducting an investigation on superior court judges. Care must be taken so that the independence of the Judiciary can be safeguarded and in turn, the law can be administered independently without fear and favour.

Towards this end, these eternal words of HRH Sultan Azlan Shah ring true:

“The rules concerning the independence of the Judiciary are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law. They are, therefore, essential for the preservation of the Rule of Law.”

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