PUTRAJAYA: The Malaysian Anti-Corruption Commission's (MACC) investigation against Court of Appeal Judge Datuk Mohd Nazlan Mohd Ghazali was done without following protocols.
Chief Justice Tun Tengku Maimun Tuan Mat also questioned the timing of the investigation, which was done on the eve of Datuk Seri Najib Razak's final appeal to overturn the 12-year jail sentence and RM210 million fine for the misappropriation of SRC International funds.
Nazlan was the High Court judge who convicted and sentenced Datuk Seri Najib Razak to 12' years jail and a RM210 million fine for misappropriating RM42 million of SRC International Bhd funds.
Tengku Maimun said even though investigative bodies were constitutionally entitled to investigate superior court judges, it must be exercised in good faith and only in genuine cases.
"Najib even relied on the supposed bias on the part of Nazlan and his former employment with Maybank as grounds to nullify his conviction.
"The curious timing of the investigation against Nazlan, which was done without consultation with the judiciary, also casts doubt on whether the investigation against Nazlan was bona fide."
She said such an investigation must be conducted in accordance with certain protocols to protect judicial independence.
Among the protocols that must be adhered to are:
- A criminal investigative body cannot on its own accord, publicise or advertise the fact of investigation or the contents of the investigation of a superior court judge without prior approval of the chief justice. The chief justice might agree to the publication if it is in the interest of the judiciary.
- The contents of investigations against a judge must remain confidential.
- The public prosecutor must consult the chief justice when giving instructions during investigations and in respect of his decision to prosecute.
Tengku Maimun said: "It is blatant that investigations commenced against Nazlan were done without regard to judicial independence as none of the protocols appeared to have been followed.
"There is no evidence, at least at this stage of the case, that the chief justice was ever consulted.
"Further, the manner in which the investigations were publicised by the way of a press statement did not appear to preserve or lend confidence to the independence of the judiciary."
Tengku Maimun said this in her ruling over an application to refer two constitutional questions relating to MACC's investigation against Nazlan by two lawyers and an activist.
The suit was filed by plaintiffs Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim on May 7, last year, who seek to declare that MACC was not entitled to investigate serving judges unless the latter have been suspended or removed.
The plaintiffs, represented by solicitors Messrs Malik Imtiaz Sarwar, named MACC Chief Commissioner Tan Sri Azam Baki, MACC and the government as the first to third defendants in the suit.
They are also seeking a declaration that a public prosecutor was not empowered to institute or conduct any proceedings for an offence against serving judges of a court and that investigations against Nazlan were unconstitutional.
Minister in the Prime Minister's Department (Legal and Institutional Reform) Datuk Seri Azalina Othman Said yesterday said the investigation against Nazlan had been completed and the findings had been submitted to the top judge.
She said this matter was subjected to the chief justice's decision, as stated by Clauses 3 and 3A of Article 125 of the Federal Constitution.
MACC said it had completed its investigation into the alleged unexplained source of fortune involving Nazlan last year.