PETALING JAYA: A former chief justice has torn into a recent ruling by the Federal Court which found that the investigation against Justice Nazlan Ghazali by the Malaysian Anti-Corruption Commission (MACC) had violated protocol.
In a blog post, Abdul Hamid Mohamad pointed out that there was no written law to govern the matter.
Neither has the protocol described by Chief Justice Tengku Maimun Tuan Mat ever been mentioned by the courts prior to its formulation by the Federal Court via its ruling last week, he said.
“Without finding any clear constitutional provisions to depend on, the court used the principle of judicial independence and created a new protocol.
“In effect, the MACC was found to have breached a protocol that had yet to exist.
“Whatever it is, the decision gave the courts an excuse to find fault with the investigation.
“Whether it has cleared Nazlan’s name is another matter altogether,” said Hamid, who served as Malaysia’s fifth chief justice from November 2007 to October 2008.
Hamid said the seven-member panel’s ruling should have stopped after it answered the two questions of the law posed in the case which the court was hearing.
Filed by lawyers Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim, the suit sought a declaration that the MACC was not permitted to investigate serving judges unless they were suspended or removed from office.
It also asked whether the prosecutor could initiate criminal proceedings against serving judges.
In its answer, the apex court held that investigative bodies like the MACC could probe serving judges and that they can be prosecuted for potential criminal offences.
“However, the chief justice and the judiciary could not allow their ruling to stop there, having twice issued statements defending Nazlan. Otherwise, it would seem as though the claims made by Raja Petra Kamarudin are true.
“It must be noted that none of the parties in the case had pleaded or was asked to address the court on the matters which became the subject of the decision. Those matters were raised by the court on its own,” said Hamid.
The former chief justice said he had been extremely concerned by several decisions delivered by the Federal Court in recent times, and that the apex court had exceeded its jurisdiction in several decisions.
He said the present judgment made it seem like the legislative and executive branches of government did not have the power to carry out their duties independently.
The judgment also puts judges “on a pedestal higher than government ministers and even the Malay Rulers” by requiring the authorities to consult the chief justice before initiating a probe against serving judges.
According to Hamid, the judgment also insinuated that MACC’s probe had been carried out in bad faith and for “collateral purposes”.
“What other purpose could there have been? Only one comes to mind, which is to secure a court ruling that (former prime minister) Najib Razak had suffered an injustice and deserves a retrial,” he said.
“Have the judges forgotten that MACC has spent tens if not hundreds of hours investigating Najib’s case? If anyone would want Najib convicted, it would be the MACC,” he added.
Instead, MACC was portrayed as defending Najib, said Hamid.
The former top judge said he was not opposed to the establishment of a set of protocols when probing judges. However, that was a policy matter for the executive to deliberate on, he added.
“The judiciary can make its proposals on the matter to the executive. If the executive agrees, then it should be made law by Parliament,” said Hamid.
“In other words, do it the right way.”
Nazlan presided over Najib’s SRC International corruption trial and convicted him on seven counts of corruption and abuse of power.
He went on to sentence Najib to imprisonment for 12 years and imposed a fine of RM210 million.
Najib has maintained that Nazlan ought not to have tried the case due to a conflict of interest. He says Nazlan, in his previous capacity as general counsel of the Maybank Group, was directly involved in banking matters involving SRC and its then parent company, 1MDB.
Those complaints became the subject of an investigation by the MACC.
An incomplete document appearing to be the MACC’s report on the investigation was leaked online by Raja Petra shortly before the decision was handed down in July 2020.
Najib’s application to adduce fresh evidence relating to Nazlan’s alleged conflict of interest was dismissed by the Federal Court in August last year.
On Aug 23 last year, the apex court went on to dismiss Najib’s final appeal and ordered that his jail term commence immediately.