Mohd Nazlan was the trial judge in the High Court who convicted former prime minister Datuk Seri Najib Razak of embezzling RM42 million belonging to SRC International Sdn Bhd, a former unit of sovereign investment firm 1MDB.
Mohd Nazlan has since been elevated to the Court of Appeal.
Apex court rules MACC probe against judge Nazlan did not follow protocol
Februari 24, 2023 15:03 MYT
Justice Tengku Maimun sat on the panel with Court of Appeal President Tan Sri Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah and Federal Court judges Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.
She was delivering their decision online pertaining to two questions of law raised by lawyers Haris Fathillah Mohamed Ibrahim, Nur Ain Mustapa and Sreekant Pillai.
The questions were related to powers of criminal investigating bodies to investigate serving superior judges as well as the public prosecutor’s power to institute proceedings against serving superior judges.
The lawyers filed a lawsuit on May 6 last year against MACC chief commissioner Tan Sri Azam Baki, MACC and the federal government after MACC opened an investigation paper against Mohd Nazlan following a report lodged on an allegedly unexplained sum of more than RM1 million in Mohd Nazlan’s bank account.
The lawyers contended that criminal investigative bodies and the prosecution can only commence investigation on a serving judge after the judge was suspended by the Yang di-Pertuan Agong or removed by a tribunal.
Mohd Nazlan had subsequently lodged a police report against an online portal which alleged he was being investigated over unexplained wealth in his account.
He was the High Court trial judge who convicted and sentenced Najib to 12 years’ jail and a RM210 million fine on seven charges relating to RM42 million in funds belonging to SRC International on July 28, 2020.
In the apex court’s decision, Justice Tengku Maimun also said a set of protocols must be followed when a judge is investigated, including seeking leave from the Chief Justice first before conducting the probe.
She said this is because the Chief Justice might know details that the criminal investigative body does not and it would also safeguard judicial independence.
She said criminal investigative bodies cannot on their own accord publicise or advertise the facts of investigation or the contents of the investigation on a superior court judge without the approval of the Chief Justice and the entire contents of the probe must remain confidential at all times.
She said judges are considered to be citizens of the highest moral character, adding that “announcement of an investigation against a judge is enough to damage the image of the institution he serves”.
The three lawyers were represented by counsel Datuk Malik Imtiaz and A.Surendra Ananth while senior federal counsel Liew Horng Bin appeared for Azam, MACC and the federal government. Lawyer New Sin Yew appeared as amicus curiae for the Malaysian Bar.
By Kenneth Tee
Friday, 24 Feb 2023 11:02 AM MYT
KUALA LUMPUR, Feb 24 — The nation’s highest court today unanimously held that the Malaysian Anti-Corruption Commission’s investigation against judge Datuk Mohd Nazlan Mohd Ghazali did not follow proper protocol.
The seven-judge panel was led by Chief Justice Tengku Maimun Tuan Mat in presiding over a suit filed by three lawyers that challenged the MACC’s investigation on Mohd Nazlan over claims that the latter had an unexplained RM1 million in his account.
“A criminal investigative body cannot on their own accord publicise or advertise facts of an investigation or contents of the investigation of a superior court judge without prior approval of the Chief Justice (obtaining leave).
“The public prosecutor too must consult the Chief Justice during the course of giving instruction and during the course of investigation and in respect of his decision to prosecute.
“On a cursory reading of the facts and upon examining the documentary evidence on record, it is blatant that any probe commenced against Justice Nazlan was done without regard to judicial independence and none of the above protocols were allowed.
“Further, the manner in which the investigations were publicised by way of a press statement also does not appear to preserve or lend confidence to the independence of the judiciary.
“The curious timing against Justice Nazlan which was done without consultation with the judiciary also cast doubt on whether investigation against Justice Nazlan is bona fide,” she said in delivering the court’s decision through video-conferencing this morning.
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