“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.”
YAA Tun Tengku Maimun Tuan Mat, Chief Justice of Malaysia, 2023
On 24th February 2023, the Federal Court of Malaysia unanimously ruled that the investigation carried out by the Malaysian Anti-Corruption Commission (‘MACC’) against a Court of Appeal judge, YA Dato' Mohd Nazlan bin Mohd Ghazali ('Justice Nazlan'), was conducted without regard for judicial independence, protocols, and indicated a lack of bona fide. The MACC's investigation concluded in May 2022 and included a raid on Justice Nazlan's chambers and the seizure of documents and electronic devices. This conduct received numerous and diverse remarks from the public, including the Bar Council and Sabah Law Society.
With this, the University of Malaya Law Society (‘UMLS’) hopes to provide our students’ collective view on this issue from an academic legal perspective.
BACKGROUND OF THE ISSUE
Following charges of misconduct, the Malaysian Anti-Corruption Commission (‘MACC’) started an investigation into Court of Appeal judge Justice Nazlan on an allegedly unexplained sum of more than RM1 million in his bank account during his term as a High Court judge. On 21st May 2022, Chief Commissioner Tan Sri Azam Baki made a statement that MACC had completed their investigation paper in March and was expecting further directions from the Attorney General's Chambers (‘AGC’) since presentation of said papers on 18th May. However, the AGC has denied the acknowledgement of said investigation papers. Following the inquiry by the MACC, a raid was conducted on Justice Nazlan's chambers as well as the confiscation of documents and electronic equipment.
In response, three lawyers filed an application with the Federal Court in 2022, citing two constitutional issues. The inquiries concerned the powers of criminal investigating bodies to investigate serving judges of the superior courts, as well as the power of the public prosecutor to initiate proceedings against serving judges of the superior courts.[i]
FEDERAL COURT
Judges are regarded as citizens of high moral character. Thus, the announcement of an investigation into a judge is enough to tarnish the image of the institution he or she serves. The Chief Justice of the Federal Court, YAA Tun Tengku Maimun Tuan Mat, who chaired a seven-member panel, delivered the unanimous judgment regarding the application made. The issues are whether criminal investigation bodies such as the MACC are only legally permitted to investigate suspended High Court, Court of Appeal, and Federal Court judges under Article 125(5) of the Federal Constitution, and whether the public prosecutor is authorized to institute or conduct any proceedings for an offence against serving judges under Article 145(3) of the Federal Constitution, having regard to Article 4 and Part IX.[ii]
The Federal Court outlined the right procedures that must be followed when a judge is being investigated.[iii] The ruling emphasized the importance of upholding the principles of judicial independence and the separation of powers in Malaysia's legal system. The court stated that the MACC exceeded its jurisdiction and disregarded judicial independence in its investigation of the judge. The investigation was publicized by way of a press statement that did not appear to preserve confidence in the judiciary's independence. The timing of the investigation, which was done without consultation with the judiciary, had cast doubt on whether the probe was done in good faith.[iv]
The court took note that at the time the press statement was issued, there was significant buzz in the media regarding the former Prime Minister's final appeal in the SRC International Sdn Bhd case coming up for hearing before the Federal Court.[v] The former Prime Minister had relied on an argument of supposed bias by the judge and his former employment with a bank as grounds to nullify his conviction.
REMARKS
Dato’ Sri Azalina Binti Othman Said, Minister of Law and Institutional Reforms The Minister had previously spoken out on the need for protocols to be put in place to safeguard the independence of the judiciary during an investigation by a law enforcement agency. In June 2020, Dato’ Sri Azalina, who at the time was the Deputy Speaker of the Dewan Rakyat, had called for guidelines to be established on how such investigations should be conducted to protect the reputation of judges and the judiciary. She had also suggested that the investigation process be subject to judicial oversight to ensure fairness and impartiality.
The Bar Council The Bar Council of Malaysia has welcomed the Federal Court’s decision, stating that it underscores the importance of preserving judicial independence and integrity. The Bar Council also stated that the ruling reaffirms the principle that judges are entitled to the same constitutional protection as other citizens and that any investigation into them must be conducted with the utmost care and sensitivity. The Council also highlighted the need for clear and proper protocols to be followed when investigating allegations of wrongdoing against judges, in order to prevent any possible perception of bias or interference with judicial independence.[vi]
Sabah Law Society Sabah Law Society has previously expressed support for the principle of judicial independence and the importance of upholding the integrity of the judiciary in Malaysia. In a statement, the Sabah Law Society called for respect for the rule of law and the independence of the judiciary. The society emphasized the need for all stakeholders to respect the constitutional framework of the country and to uphold the principles of democracy and good governance.[vii]
OUR OVERALL STANCE
The UM Law Society holds strong belief that MACC violated the rule of law by failing to observe established protocols and failing to respect the sacred value of judicial independence.
We believe that the redefined protocols laid out in the Part IV of Judges’ Codes of Ethics 2009 must be followed during the investigation of a judge in order to safeguard the independence of the court. The judgment of Haris Fathillah bin Mohamed Ibrahim & Anor v Tan Sri Dato’ Sri Haji Azam bin Baki & Anor outlined the protocols that should have been followed whereby the criminal investigating body must firstly seek permission[viii] from the Chief Justice to proceed with the investigation.[ix] Without prior consent from the Chief Justice, no information about the inquiry or its results can be disseminated to the public. The inquiry must be kept confidential as unsubstantiated statements could tarnish a judge's reputation. Ultimately, throughout the investigation and prosecution process, the Public Prosecutor must confer with the Chief Justice. Frustratingly however, these protocols seem to have been disregarded in the present case, in addition to the fact that the investigation was made in a manner that undermined the independence of the court. We believe that this action may have affected the public’s confidence in the judiciary as a whole.
We believe that the preservation of the judiciary's autonomy and credibility is of utmost significance and can only be achieved through strict adherence with the established protocols. Any investigation or prosecution of a judge must be carried out with absolute diligence and caution, as any deviation from the established procedures may compromise the independence of the judiciary.
In this opportunity, we wish to bring to light Article 127 of the Federal Constitution which stipulates the restriction on Parliamentary discussion of the conduct of a judge. A clear separation of power must be exercised accordingly without any conflict of interest. We exhaustively acknowledge that serving judges are not exempt from investigation or prosecution. However, such actions must be subjected to a higher level of scrutiny and transparency to ensure that they are not commenced for ulterior motives. Ultimately, we postulate that the principles of judicial independence must be safeguarded to guarantee that justice is dispensed impartially and equitably.
The views and opinions expressed in this press statement do not necessarily reflect the official position of the Universiti Malaya Faculty of Law and Universiti Malaya respectively. It should also be noted that for the sake of conciseness, the UM Law Society has only selected a few issues to elaborate on, and these may not represent the whole picture of the incident.
UM Law Society 22/23
12 April 2023
Email: lawsocietyum@gmail.com
Website: www.umlawsociety.com
[i] Timothy Achariam. (2022, October 19). Federal Court to hear constitutional questions on MACC’s probe into judge on Nov 10. The Edge Markets. Retrieved from https://www.theedgemarkets.com/article/federal-court-hear-constitutional-questions-maccs-probe-judge-nazlan-nov-10. Site accessed on 9 April 2023.
[ii] Haris Fathillah bin Mohamed Ibrahim & Anor v Tan Sri Dato’ Sri Haji Azam bin Baki & Anor (Federal Court, Tengku Maimun binti Tuan Mat CJ, Feb 24, 2023, Civil Reference NO: 06(RS)-4-07/2022(W)
[iii] The Sun Daily. (2023, March 28). Govt respects federal court decision on MACC probe against Mohd Nazlan. The Sun Daily. Retrieved from https://www.thesundaily.my/local/govt-respects-federal-court-decision-on-macc-probe-against-mohd-nazlan-KJ10804358. Site accessed on 9 April 2023.
[iv] Timothy Achariam. (2023, February 24). Chief Justice: MACC probe against justice Nazlan not according to protocol; timing is suspect. The Edge Markets. Retrieved from https://www.theedgemarkets.com/node/656625. Site accessed on 24 February 2023.
[v] Kenneth Tee. (2023, February 2023). Federal Court ruled that MACC didn’t follow the protocol in investigating SRC trial judge Mohd Nazlan. Yahoo News. Retrieved from https://malaysia.news.yahoo.com/federal-court-rules-macc-didn-030227749.html. Site accessed on 9 April 2023.
[vi] Karen Cheah Yee Lynn. (2023, April 3). Decision of the Courts should be Respected by All Parties. Malaysian Bar. Retrieved from https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-decision-of-the-courts-should-be-respected-by-all-parties. Site accessed on 9 April 2023.
[vii] Ida Lim. (2023, April 7). Sabah lawyers: MACC should respect separation of powers, can’t decide on judges’ code of ethics. Malay Mail. Retrieved from https://www.malaymail.com/news/malaysia/2023/04/07/sabah-lawyers-macc-should-respect-separation-of-powers-cant-decide-on-judges-code-of-ethics/63701. Site accessed on 9 April 2023.
[viii] Judges’ Codes of Ethics 2009 Part IV
[ix] Haris Fathillah bin Mohamed Ibrahim & Anor v Tan Sri Dato’ Sri Haji Azam bin Baki & Anor (Federal Court, Tengku Maimun binti Tuan Mat CJ, Feb 24, 2023, Civil Reference NO: 06(RS)-4-07/2022(W)
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