Haris Ibrahim, lawyers take govt to court over MACC’s probe on judge Nazlan

(FMT) – Two lawyers and an activist have filed a suit to determine important constitutional issues concerning the separation of powers and the independence of the judiciary.

This arose as a consequence of the investigation by the Malaysian Anti-Corruption Commission (MACC) on Court of Appeal judge Nazlan Mohd Ghazali.

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.

In a statement by their solicitors, Messrs Malik Imtiaz Sarwar, they have also filed an application to refer two constitutional questions in relation to the reliefs sought to the Federal Court.

The plaintiffs have taken the position that the investigation is a violation by the executive branch of the independence of the judiciary and the separation of powers.

“These are matters of grave importance that affect all persons in this country. The Federal Constitution guarantees each of us access to justice administered by a judiciary that is free from interference of any sort,” they said.

According to Nur Ain, Sreekant and Haris, the Constitution guarantees equality before the law and the equal protection of the law.

“It is not our view that judges are immune from criminal investigation or prosecution.

“Like all of us, they must be held accountable for any crimes they may have committed,” they said.

However, they believe that the power to investigate and institute criminal proceedings must be balanced against the need to ensure public confidence in the judiciary.

The plaintiffs said the Constitution provides a mechanism to ensure accountability of judges in a manner that does not undermine public confidence.

“We believe that MACC’s power to investigate must be read as being subject to that constitutional mechanism.”

The plaintiffs said Putrajaya and the attorney-general have remained silent in the face of assertions by MACC that it is entitled to investigate Nazlan.

“It appears, therefore, that they agree with the view of the MACC.

“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,” they added.

Last week, MACC dismissed criticism over its probe into Nazlan, maintaining it has the authority to investigate any public official, including judges.

Nazlan lodged a police report two weeks ago over a report by fugitive blogger Raja Petra Kamarudin alleging that he was being investigated for unexplained money in his bank account.

Nazlan was the trial judge who convicted and sentenced former prime minister Najib Razak on seven charges relating to RM42 million in funds belonging to SRC International on July 28, 2020.

Last December, the Court of Appeal upheld the conviction. An appeal against the conviction is pending before the Federal Court.