On April 21, 2022, a blogger published a blog post against judge Datuk Mohd Nazlan Mohd Ghazali (Nazalan), the judge who in July 2020 found Najib guilty in the SRC case.
Nazlan lodged a police report stating that the blog post contained “false, baseless and malicious” allegations intended to interfere with the justice system and judiciary.
On April 23, 2022, MACC publicly confirmed to a local newspaper that they had opened investigation papers as a report was officially lodged on the judge Datuk Mohd Nazlan Mohd Ghazali who presided over the trial of Najib Razak.
Later on May 6, 2022, lawyers Nur Ain Mustapa, Sreekant Pillai, and Haris Fathillah Mohamed Ibrahim filed an originating summons with the High Court to seek a declaration that the MACC has no right to investigate serving High Court, Court of Appeal, and Federal Court judges unless they are suspended pursuant to Article 125 (5) of the Federal Constitution, or dismissed according to Article 125 (3) of the Federal Constitution.
The 3 plaintiffs were also seeking a declaration that the public prosecutor is not authorised to initiate or conduct any proceedings for offences against serving court judges and a declaration that the investigation against Nazlan is unconstitutional.
In a statement issued publicly by their solicitors Messrs Malik Imtiaz Sarwar, the 3 plaintiffs also said:
- The purported investigation by MACC on Nazlan is a violation by the Executive branch of the independence of the Judiciary and the separation of powers,
- The Federal Constitution guarantees all persons in this country equality before the law and the equal protection of the law and access to justice administered by a Judiciary that is free from the interference of any sort,
- It is not their view that Judges of the High Court, the Court of Appeal, and the Federal Court are immune from criminal investigation or prosecution. Like all of us, they must be held accountable for any crimes they may have committed. However, the power to investigate and institute criminal proceedings must be balanced against the need to ensure public confidence in the Judiciary,
- The Constitution already provides a mechanism that involves complaints being made in writing to the Chief Justice and, where such complaints warrant the removal of a judge, and the appointment of a tribunal to determine that complaint. In the meanwhile, the judge concerned can be suspended to ensure the accountability of judges in a manner that does not undermine public confidence,
- That the Federal Government and the Attorney-General have remained silent in the face of assertions by the MACC that it is entitled to investigate Judge Mohd Nazlan which appeared that they agree with the view of the MACC. Thus, they are compelled by circumstance to have these important constitutional issues determined.
On May 21, 2022, the MACC announced that it had completed investigations — which it said had started in March 2022 — for the case involving Nazlan and said the investigation papers had been presented to the AGC on May 18, 2022 for further study and direction.
In June 2022, Najib filed an application with the Courts alleging the judge of bribery and also to admit new evidence regarding Nazlan’s purported conflict of interest due to alleged failure to disclose his previous Maybank roles.
On July 19, 2022, the High Court allowed the application by the 3 plaintiffs to refer the legal questions to the Federal Court after holding that the court was the right and appropriate forum to hear and decide legal questions that could affect the judiciary.
In early Aug 2022, Najib withdrew his allegation alleging the judge of bribery, and on mid Aug 2022, the Federal Court rejected Najib’s application to admit new evidence regarding Nazlan’s purported conflict of interest.
In the same week i.e Aug 2022, the Umno secretary-general in a statement on his Twitter claimed that a document alleged to be the MACC’s investigation papers on Nazlan had been leaked to the public.
He said the purported investigation papers had referred to Section 220 of the Penal Code, which covers the offence of committing persons for trial or confinement while knowing such action is contrary to law.
On August 21, 2022 when queried by reporters, the Attorney General was reported as saying the investigation paper involving Mohd Nazlan was not with AGC.
In September 2022, MACC reportedly said that the papers were returned to the MACC for further investigation.
On 29 Sept 2022, MACC chief commissioner reportedly confirmed publicly that the investigation paper involving the case of Nazlan has been completed and MACC is awaiting further instructions from the Attorney General’s Chambers (AGC).
On 19 Oct 2022, it was reported that the Federal Court has set Nov 10, 2022 to hear the application by the 3 plaintiffs.
On Nov 10, 2022, it was reported that the Federal Court has reserved its decision on two constitutional questions posed by 3 plaintiffs about whether criminal investigating bodies like the Malaysian Anti-Corruption Commission (MACC) have the authority to investigate sitting superior court judges after listening to submissions from all parties on Nov 10, 2022.
On 23 Feb 2023, the Minister in the Prime Minister's Department (Legal and Institutional Reform) said she was informed by MACC in a letter dated Feb 21, 2022 that the investigation into Nazlan’s case has been completed and the findings have been submitted to and awaiting the Chief Justice’s decision as stated by Clauses 3 and 3A of Article 125 of the Federal Constitution where under Clause 3 of Article 145, the Attorney-General/Public Prosecutor has discretionary powers to initiate any proceedings for offences.
On Feb 24, 2023, the Federal Court delivered their decision on two constitutional questions in an originating summons filed by 3 plaintiffs on May 6, 2022 where it states that:-
- While judges are not immune from criminal investigation or prosecution but there are protocols involved,
- Criminal investigative bodies were constitutionally entitled to investigate superior court judges, and the Public Prosecutor to conduct criminal proceedings against them, but such powers must be exercised in good faith and only in genuine cases,
- The Public Prosecutor too must consult the Chief Justice during the course of giving instructions during investigations and in respect of his decision to prosecute at all times, it must be borne in mind that judges are considered to be citizens of the highest moral character.
On 24 Feb 2023, immediately after the decision by the Federal Court, a former law minister said the Prime Minister needs to explain what law dictates and whether the MACC and police need to inform and get approval from the Chief Justice before they investigate any wrongdoing by a judge.
This same former law minister who was interviewed by the Australian Television program Four Corners on in March 2016, on the removal of the former attorney general prior to him charging Prime Minister Najib Razak of misappropriation said the removal is a massive dismantling of the institutions of government to cover up crime.
Does this former law minister shared the same view herein?
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