Activist Haris Ibrahim, lawyers sue to have MACC probe on Najib’s SRC trial judge ruled unconstitutional
Friday, 06 May 2022 06:31 PM MYT
BY IDA LIM
KUALA LUMPUR, May 6 — Activist Haris Ibrahim and two lawyers today filed a lawsuit against the Malaysian Anti-Corruption Commission (MACC) to ultimately seek a declaration that its investigation on the trial judge in ex-prime minister Datuk Seri Najib Razak’s SRC International Sdn Bhd case is unconstitutional.
In a statement today, Haris and lawyers Nur Ain Mustapa and Sreekant Pillai said they named MACC chief commissioner Tan Sri Azam Baki, the MACC, and the government of Malaysia as respondents.
The trio said the lawsuit was filed in order to have the courts determine “important constitutional issues concerning the separation of powers and the independence of the judiciary” that have arisen as a result of the MACC’s investigation into a serving judge of the Court of Appeal.
The judge, Datuk Mohd Nazlan Mohd Ghazali, had heard and delivered a guilty verdict in the High Court against Najib over the misappropriation of RM42 million of SRC International funds. The judge has since been elevated to be a Court of Appeal judge.
In the statement issued by the law firm Messrs Malik Imtiaz Sarwar on the trio’s behalf, the three said the lawsuit — filed through an originating summons — sought two main declarations.
The first was for a declaration that criminal investigation bodies including the MACC are not entitled to or are precluded from investigating serving judges (at the High Court, Court of Appeal and the Federal Court), unless where these judges are suspended or removed respectively in line with the Federal Constitution’s Article 125(5) or Article 125(3); and/or the public prosecutor is not empowered to institute or conduct any proceedings for an offence against such serving judges.
The second is for a declaration that the MACC’s investigation into the judge Mohd Nazlan is, consequently, “unconstitutional”.
As part of this main lawsuit, the trio had also filed an application at the High Court to refer two constitutional questions to the Federal Court, in relation to the court declarations that the trio were seeking in the main lawsuit.
The statement was issued on the trio’s instructions by their lawyer Datuk Malik Imtiaz Sarwar and their co-counsel Surendra Ananth.
Surendra confirmed to Malay Mail that both the lawsuit and the application to refer questions to the Federal Court were filed at the High Court in Kuala Lumpur earlier today. The court papers have yet to be served on the three respondents of the lawsuit.
In the statement today, Haris and the two lawyers said they viewed the MACC’s investigation on the judge as the executive’s violation of judicial independence and the separation of powers doctrine, noting that these are matters of grave importance that affect all persons in Malaysia.
The trio also noted that the Federal Constitution guarantees access to justice administered by a judiciary free from interference of any sort, and that it also guarantees equality to all before the law and equal protection of the law.
“It is not our 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 three said.
The trio stressed that the Federal Constitution already provides a mechanism to ensure the accountability of judges in a manner that does not undermine public confidence in the judiciary, while arguing that the MACC’s investigation powers should be applied in a way that is in harmony or consistent with this constitutional mechanism.
The constitutional mechanism involves written complaints made to the chief justice — which is the highest-ranking judge in Malaysia — and where a tribunal can be appointed if the complaints warrant a judge’s removal. Under the mechanism, the judge can also be suspended.
“We believe that the MACC’s power to investigate must be read as being subject to that constitutional mechanism. A harmonised approach would allow for the preservation of public confidence in the judiciary while ensuring that judges be held accountable,” Haris and the two others who had filed the lawsuit said.
The trio noted that the federal government and the attorney-general have remained silent following MACC’s assertions that it is entitled to investigate a sitting judge of the Court of Appeal, adding: “It appears, therefore, that they agree with the view of the MACC.”
The trio explained that they felt they should file the lawsuit in court to have the constitutional questions decided upon, as the judiciary is not able to ask for court declarations on its own.
“The judiciary is therefore left without any recourse, as it is in no position to descend into the arena and seek the necessary declarations of its own accord. We were therefore compelled by circumstance to have these important constitutional issues determined,” they said.
Plaintiffs Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim filed the originating summons at the High Court here this afternoon and have named MACC chief commissioner Azam Baki, MACC, and the government as defendants.
The trio are seeking the following declarations:
- criminal investigation bodies, including MACC are not entitled or are otherwise precluded from investigating serving judges of the superior courts (High Court, Court of Appeal, and Federal Court) unless they are suspended as required under the Federal Constitution;
- the public prosecutor is not empowered to institute or conduct any
proceedings for an offence against serving judges of the superior courts.
They have also sought a declaration that the investigation by MACC into Nazlan was unconstitutional.