PUTRAJAYA: The Federal Court was told today that the Malaysian Anti-Corruption Commission’s (MACC) action in publicly announcing and investigating a sitting superior court judge was akin to embarrassing the judge.
Lawyer Malik Imtiaz Sarwar – appearing for three fellow lawyers in their suit questioning the MACC’s actions – said the publicising of investigations into Court of Appeal Justice Nazlan Ghazali was “unprecedented”.
“Those events can only be understood as having amounted to an attack on the judiciary, even if it was unintentional.
“Giving investigating authorities – be it the MACC or police – a free hand and unconditional power to investigate judges would be detrimental to public confidence in the judiciary.
“And investigations would, objectively, give rise to an impression that it is open to the executive, acting through the authorities, to exert pressure on the judiciary for collateral purposes,” he said.
Three lawyers – Haris Ibrahim, Nur Ain Mustapa and Sreekant Pillai – filed a lawsuit earlier this year against the MACC, questioning the Nazlan probe. Haris is also a prominent activist.
The lower court had previously allowed their application to refer several legal questions to the Federal Court.
The trio claimed that the MACC’s investigation was a violation of the independence of the judiciary and the separation of powers by the executive branch.
They are seeking a declaration that criminal investigation bodies, including the MACC, are not entitled or are precluded from investigating serving judges of the superior courts (High Court, Court of Appeal and Federal Court) unless the judges are suspended as required under the Federal Constitution.
They also want the court to declare that the public prosecutor is not empowered to institute or conduct any proceeding for an offence against sitting judges in the superior courts.
MACC previously said it had opened an investigation paper following a report lodged on an unexplained sum of more than RM1 million in Nazlan’s bank account.
Nazlan had earlier lodged a police report against fugitive blogger Raja Petra Kamarudin who had alleged that the judge was being investigated for unexplained money in his bank account.
Malik also told the court that if there were complaints against any sitting judge for “misbehaviour”, action could be taken against him or her through existing independent mechanisms.
Malik said any complaint against a sitting judge should be made first to the chief justice. He said if the actions of the judge were found to have breached the Judges’ Code of Ethics, a committee known as the Judges’ Ethics Committee would hear the complaint.
The chief justice heads the committee.
“The committee has the power to admonish the said judge or to suspend him or her for up to a year.
“If the chief justice thinks that the allegations are serious for him or her to be removed from the bench, the prime minister or chief justice (after consulting the PM) can make representations to the Yang di-Pertuan Agong for a tribunal to be set up,” he said, adding that the tribunal would make the final decision on the said judge’s removal.
Meanwhile, senior federal counsel Liew Horng Bin – representing the MACC – told the court that there was no express provision in the Federal Constitution or any local law that barred serving or retired judges from being investigated.
He said the argument presented by the three lawyers that investigations could only commence against a sitting judge after he or she was suspended from duties was not justified.
“If this is what they are saying, then an MP or PM can rely on this argument to dispute any probe against them,” he added.
Liew also said the chief justice would be seen as the investigator, prosecutor and judge in determining whether a complaint had merits, before it could proceed to the ethics committee.
He pointed out that in the past, two former chief justices (Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim) had been subjected to the Anti-Corruption Agency (MACC’s precursor) investigations over possible involvement in the infamous Lingam video tapes implicating lawyer VK Lingam.
The video, recorded in secret by former Kelana Jaya MP Loh Gwo Burne in December 2001, is said to have shown Lingam brokering a deal with Fairuz purportedly for the latter to be promoted to chief justice.
Liew added: “During that time, the (Malaysian) Bar did not complain that ACA’s probe had the effect of transgressing the independence of the judiciary.”
Chief Justice Tengku Maimun Tuan Mat, who chairs a seven-judge panel to hear the three lawyers’ application, said they needed time to look through the case and would fix another date for decision.
Other judges who sat with her were acting Chief Judge of Malaya Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak, Abang Iskandar Abang Hashim and justices Nallini Pathmanathan, Vernon Ong, Harmindar Singh Dhaliwal, and Rhodzariah Bujang.
Lawyer New Sin Yew appeared for the Bar as amicus curiae.