The Malaysian Anti-Corruption Commission (MACC)’s investigation against Court of Appeal Judge YA Dato’ Mohd Nazlan bin Mohd Ghazali JCA without first consulting with the Chief Justice is downright unconstitutional and undermines the rule of law. Furthermore, the public nature of the probe is uncalled for and raises concerns about the independence and impartiality of the Judiciary.
More so, given that the Judiciary is a fundamental institution in the doctrine of separation of powers in Malaysia. As such, I hold the same view as the Malaysian Bar, which in a press release on 25 April 2022 called for the integrity of the Judiciary as an integral institution in the administration of justice to be upheld and respected.
The investigation initiated against His Lordship YA Dato’ Mohd Nazlan bin Mohd Ghazali JCA is also unwarranted considering the accusations against him lack merit. The contentious statements, asserted by blogger Raja Petra Kamaurdin on his blog, Malaysia Today on 20 April 2022 have been deemed by the Office of the Chief Registrar of the Federal Court to contain false, baseless and malicious accusations.
MACC’s subsequent statement, as reported by The Star defending its action by stressing that it has the authority under the MACC Act 2009 to investigate officers of public bodies, including judges of the Court of Appeal is also misguided. While Section 3 of the MACC Act 2009 does include a judge of the Court of Appeal within the definition of an ‘officer of a public body’, any investigations initiated against such an individual would be ultra vires to the Federal Constitution when done without first referring to and consulting with the Chief Justice.
Specifically, Article 125 of the Federal Constitution clearly prescribes a specific pathway for addressing complaints of alleged judicial misconduct or breach of any provisions of the code of ethics prescribed under Clause (3b). In these instances, the Chief Justice as a ‘participatory functionary’ in the matter of appointment of judges of the superior courts must first be referred to and consulted with.
MACC’s action of filing a first information report (FIR) against His Lordship YA Dato’ Mohd Nazlan bin Mohd Ghazali JCA also goes against the independence of the Judiciary. Accordingly, the Supreme Court of India in 2017 reiterated its judgement in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655 the following:
“There is no question of registering any FIR against any sitting Judge of the High Court or of this Court — that is, the Supreme Court — as it is not permissible as per the law laid down by a Constitution Bench of 5 Honourable Judges of this Court in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655.
“[In that case], this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the [investigation agency] if given publicity, will have a far-reaching effect on the Judge and the litigant public.
“The need, therefore, is of judicious use of action taken under [an incriminating legislation]. There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Honourable Chief Justice of India (CJI) and, in case there is an allegation against the CJI, the decision has to be taken by the Honourable President, in accordance with the procedure prescribed in the said decision.
“[The] independence of judiciary cannot be left at the mercy of the [investigation agency]. There cannot be any FIR without permission of the Chief Justice of the concerned court.
“Otherwise, on unfounded allegations, any honest Judge to the core, can be defamed, and reputation can be jeopardised. No judge can be held responsible [in that way].”
Hence, the proper and specific pathway should be followed when addressing such a matter so as not to bring the entire judicial system into disrepute. Care must be taken so that honest and fearless judges are protected so that the law can be administered independently without fear and favour.
The Right Honourable Chief Justice Tun Tengku Maimun binti Tuan Mat herself had also come out to say that attacks against the Judiciary and the institution have gone overboard. While the public is free to criticise, it did not mean that they could level unfounded and scurrilous attacks against the judiciary, or a particular judge to further their own end.
She further stressed,
“When a need arises for the judiciary to be criticised, this should be done in a manner that is constructive and does not undermine its independence and public confidence.”
Therefore, MACC must not undermine the independence of the Judiciary and conduct its investigations through the proper pathway and manner by not issuing an FIR and by consulting the Chief Justice first. The institution is the last line of defence in a constitutional democracy practised by our country and there must never be a suspicion that it was under the control of others.
Recently, as reported by The Edge Markets, MACC announced that the probe against His Lordship YA Dato’ Mohd Nazlan bin Mohd Ghazali JCA has been completed and that the investigation paper has been sent to the Attorney-General’s Chambers (AGC) on 18 May 2022. Afterwards, Malaysiakini reported on AGC’s confirmation of receiving the investigation papers and is in the midst of perusing its findings before moving forward with any action.
Hence, it is up to the AGC to do the right thing and quash the investigation by MACC and ask the statutory body to follow the correct pathway of conducting an investigation against a sitting Judge. Similarly, the Attorney-General himself must also first consult with the Chief Justice regarding the matter so that the best course of action can be taken in order to safeguard the integrity of the Judiciary and uphold the doctrine of separation of power.
Jamie is a content writer under Headliner by Newswav, a programme where content creators get to tell their unique stories through articles and at the same time monetize their content within the Newswav app.
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