Apex court rules MACC probe against judge Nazlan did not follow protocol

A seven-member panel of the court led by Chief Justice Tun Tengku Maimun Tuan Mat said the manner the investigation was conducted, which included publicising it through a press statement, did not appear to preserve confidence in the judiciary's independence.

She also said the curious timing of the investigation against Mohd Nazlan, which was done without consultation with the judiciary, had cast doubt on whether the probe was done bona fide (in good faith).

"Though the MACC's press statement did not refer to Justice Nazlan by name, contemporaneous media reports which mention Justice Nazlan and the earlier spurious blogpost all do refer to him, which are sufficient to enable any reasonable citizen who reads the press statement to deduce or believe that Justice Nazlan was suspected of having committed a crime. That fact in itself can tarnish the image of an independent judiciary," she said.

Justice Tengku Maimun also said at the time the press statement was issued, there was significant buzz in the media that former Prime Minister Datuk Seri Najib Tun Razak's final appeal in the SRC International Sdn Bhd case was coming up for hearing soon before the Federal Court.

The top judge said Najib had even relied on an argument of supposed bias by Mohd Nazlan and his former employment with Maybank as a ground to nullify his conviction.

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.