THE Kuala Lumpur High Court today granted an application by two lawyers and an activist to refer two questions of law, regarding the Malaysian Anti-Corruption Commission’s (MACC) investigation into Court of Appeal judge Mohd Nazlan Ghazali, to the Federal Court. 

The two questions are 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.

Judge Noorin Badaruddin ruled that the Federal Court is the correct and appropriate forum to hear matters that affect the judiciary as a whole, as the question arising in this matter relates to provisions of the Federal Constitution concerning the independence of the judiciary vis-a-vis the doctrine of separation of powers.

“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 of the public as an encroachment of the separation of powers. The investigation is reasonably viewed as having given rise to the impression that the judiciary is under attack, which has a bearing on public perception and confidence in the judiciary.

“As the present matter is going on, this court takes cognisance of the fact as to the difference of opinions and views given on this issue, and this court cannot disagree that this is a matter of fundamental importance because it affects the judiciary as a whole. All these underscore the urgency of the matter.

“It cannot be denied that this court is empowered to determine the questions, but it becomes a question of concern of having to go through the appellate process on a matter that is important to the judiciary as a whole,” she said.

The judge said a definitive and final pronouncement by the Federal Court as the highest court in the land on questions arising herein that have a direct bearing on public confidence on the independence of the judiciary is therefore essential.

“The court is of the considered view that a definitive and final pronouncement by the Federal Court on the questions posed by the applicants will benefit both parties with a speedy and economic final determination of the proceedings. Thus, the application is allowed with no order as to costs,” she said before fixing October 19 for further case management.

Nur Ain Mustapa and Sreekant Pillai, as well as activist Haris Fathillah Mohamed Ibrahim, had filed an originating summons, among others, to refer the two questions to the Federal Court and to seek a declaration that the investigation conducted by the MACC against judge Nazlan is unconstitutional.

The three plaintiffs, through a supporting affidavit filed with the originating summons, said the media had reported that the commission had commenced a probe into 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.

Recently, Nazlan, who heard and convicted former Prime Minister Najib Razak on charges of misappropriation of SRC International Sdn Bhd funds, lodged a police report over news articles alleging he was being investigated for unexplained money in his bank account. – Bernama, July 19, 2022.