THE Federal Court today reserved its decision on two constitutional questions raised about whether the Malaysian Anti-Corruption Commission (MACC) has the authority to investigate a sitting superior court judge.

Chief Justice Tengku Maimun Tuan Mat, who chaired the panel, said they needed some time to deliberate on the matter.

The panel – comprising acting Chief Judge of Malaya Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Amar Abang Iskandar Abang Hashim, Federal Court judges Nallini Pathmanathan, Vernon Ong, Harmindar Singh Dhaliwal and Rhodzariah Bujang – heard submissions from all parties during online proceedings.

Three lawyers – Haris Fathillah Mohamed Ibrahim, Nur Ain Mustapa and Sreekant Pillai – want the court to decide on whether criminal investigating bodies are legally permitted to investigate judges of the High Court, the Court of Appeal and the Federal Court who have been suspended.

The second question is whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the three superior courts.

The lawyers had filed a lawsuit against MACC chief commissioner Azam Baki, the MACC and the federal government following the commission opening an investigation into Court of Appeal judge Mohd Nazlan Mohd Ghazali, after a report was lodged alleging more than RM1 million deposited suspiciously into his bank account.

They sought a declaration that the MACC’s investigation was unconstitutional.

Nazlan was the trial judge who on July 28, 2020, convicted and sentenced former prime minister Najib Razak to 12 years in prison and a fine of RM210 million for misappropriating RM42 million belonging to SRC International Sdn Bhd.

Today, lawyer Malik Imtiaz Sarwar, representing the three lawyers, submitted that MACC’s action to publicise the investigation was unprecedented.

“Those events can only be understood as having amounted to an attack on the judiciary, even if unintentional,” he said.

Malik said judges would be left vulnerable to the embarrassing machinations of criminal investigation bodies and of potentially being charged with a crime, even if they have done no wrong.

He said an investigation by a body such the MACC, which is under the executive branch, against a serving judge of a superior court, is an investigation into the judiciary as a whole.

“It would undermine judicial independence and damage public confidence in the judiciary,” he said, adding that a specific mechanism addressing judicial misconduct, with the aim of ensuring public confidence in the judiciary, is provided under article 125 of the Federal Constitution.

“This mechanism involves hearings before a tribunal established by the king or the Judges’ Ethics Committee (JEC),” he said, adding that the tribunal and the JEC are independent of the executive and legislative branches.

Malik said by giving criminal investigation bodies a free hand and unconditional power to investigate judges would give rise to an impression that it is open to the executive, through the criminal investigation bodies, to exert pressure on the judiciary for collateral purposes.

Senior federal counsel Liew Horng Bin, representing Azam, MACC and the government argued that the applicants’ proposition that no criminal investigation and prosecution can be launched until and unless a serving judge is suspended is flawed.

He said there was no express provision in the Federal Constitution that barred serving or retired judges from being investigated.

“If this is what they are saying, then an MP or prime minister can rely on this argument to dispute any probe against them,” he said.

He added that the chief justice could be seen playing the role as the investigator, prosecutor and judge if she should decide whether a representation should be made to the king for the appointment of tribunal and for suspension of a serving judge to pave the way for criminal investigation and prosecution.

He urged the court to take judicial notice that former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim were investigated by the Anti-Corruption Agency (now MACC) while they were still in active service. – Bernama, November 10, 2022.