MALAYSIANS should read the judgments of cases and understand them before making comments, Chief Justice Tengku Maimun Tuan Mat urged not too long ago.

It is now an apt reminder following the Federal Court’s decision yesterday that unanimously ruled the Malaysian Anti-Corruption Commission’s (MACC) investigation into judge Mohd Nazlan Mohd Ghazali did not follow proper protocol.

The seven-judge panel led by Tengku Maimun presided over a suit filed by three lawyers that challenged the MACC’s investigation into Nazlan over claims the latter had an unexplained RM1 million in his account.

The Federal Court was answering two constitutional questions referred by the High Court that required answers directly from the apex court.

The questions were:

1. Whether, with regard to article 4 and part IX of the Federal Constitution, criminal investigation bodies, including but not limited to the MACC, are only legally permitted to investigate judges of the High Court, Court of Appeal or Federal Court who have been suspended pursuant to article 125(5) of the Federal Constitution.

2. Whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal or Federal Court pursuant to article 145(3) of the Federal Constitution, with regard to article 4 and part IX of the Federal Constitution.

If one were to read the full judgement of the apex court, they would find the short answers are “no” to the first question and “yes” to the second.

With both answers, the apex court affirmed the constitutional entitlement of criminal investigative bodies, including the MACC, to investigate, and the public prosecutor to decide whether to charge judges of the superior court.

However, the Federal Court did not think the answers above were the end of the matter. The apex court considered it necessary to clarify its judgment as it concerned the principle of judicial independence.

Tengku Maimun, who delivered the judgement of the apex court, said: “While this case seeks to question the constitutional limits of the respondents and other criminal investigative bodies to investigate superior court judges, our answers to the (questions) in a constitutional sense are not otherwise a broad sanction for said bodies to have a free hand in criminal investigations.

“This observation of ours is borne out by the real and apparent concerns raised by the (three lawyers) and the Bar on the significance of separation of powers, the bane of democracy and attacks on the independence of the judiciary.

“The cases on the importance of judicial independence … are trite. The fact is that while the (MACC) and other criminal investigative bodies are constitutionally entitled to investigate, and the public prosecutor to commence criminal proceedings against superior court judges, those powers must be exercised in good faith and only in genuine cases.

“Any abuse of those powers such as using them for collateral purposes not only constitutes possible offences such as abuse of power or obstruction of justice, but also constitutes actionable complaints through the courts’ statutory review powers.”

The chief justice reminded criminal investigative bodies that they “are bound to comply with the law”. Their responsibility to comply with the law is even more onerous when it concerns a serving judge of the superior court, because not only are they bound by the judge’s guarantees of fundamental rights under the Federal Constitution and due process of the law governing their powers and criminal procedure, but also the prohibition against judicial interference.

Judicial independence is a sacrosanct concept. Judges and the entire judicial process must be free to perform their functions freely and independently to arrive at a just and fair decision.

As the chief justice rightly alluded in her written judgement, the fact remains that no matter how one looks at it, criminal investigative bodies are executive bodies and thus investigations into judges of the superior court can amount to judicial interference.

“This is the case whether the crime alleged is against or tied to a judicial act or an extrajudicial act,” said the Chief Justice, whose written judgment is available in the eJudgment Management System.

Accordingly, when criminal investigative bodies investigate serving judges of the superior courts, they are not to violate the doctrine of judicial independence. 

It was in the light of the above that Tengku Maimun saw fit to list out a set of protocols that must be followed when a judge of the superior court is investigated, the first of which is for the relevant criminal investigative body to “first seek leave from the chief justice to investigate any judge”. 

“The chief justice might know details the investigative body does not, and, in any case, informing the chief justice is necessary as a safeguard of judicial independence,” said Tengku Maimun. – February 25, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.