High Court rules questions of law in judge Mohd Nazlan probe can be referred to apex court

The two questions are on whether criminal investigation bodies including the MACC are only legally permitted to investigate High Court, Court of Appeal and Federal Court judges who have been suspended under Article 125 (5) of the Federal Constitution and whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges pursuant to Article 145 (3) of the Federal Constitution.

Judge Datuk Noorin Badaruddin ruled that the Federal Court is the correct and appropriate forum to hear matters that affect the judiciary as a whole, as the question arising in this matter relate to provisions of the Federal Constitution concerning the independence of the judiciary vis-a-vis the doctrine of separation of powers.

"It is apparent that the investigation by the MACC on a serving judge of the Superior Court is viewed by the applicants and undeniably by many quarters amongst the public as an encroachment of the separation of powers. The investigation is reasonably viewed as having given rise to the impression that the judiciary is under attack which has a bearing on the public perception and confidence in the judiciary.

"As the present matter is going on this court takes cognizance of the fact as to the difference of opinions and views given on this issue and this court cannot disagree that this is a matter of fundamental importance because it affects the judiciary as a whole. All these underscore the urgency of the matter.

"It cannot be denied that this court is empowered to determine the questions but it becomes a question of concern of having to go through the appellate process on a matter that is important to the judiciary as a whole," she said.

The judge said a definitive and final pronouncement by the Federal Court as the highest court in the land on the questions arising herein which have a direct bearing on public confidence on the independence of the judiciary is therefore essential.

"The court is of the considered view a definitive and final pronouncement by the Federal Court on the questions posed by the applicants will benefit both parties of a speedy and economic final determination of the proceedings. Thus, the application is allowed with no order as to costs," she said and fixed Oct 19 for the further case management.

Nur Ain Mustapa and Sreekant Pillai, as well as activist Haris Fathillah Mohamed Ibrahim have filed an originating summons among others to refer the two questions to the Federal Court and to seek a declaration that the investigation conducted by the MACC against judge Mohd Nazlan is unconstitutional.

Meanwhile, the three plaintiffs through a supporting affidavit filed with the originating summons said the media had reported that the commission had commenced a probe against Mohd Nazlan over allegations of unexplained money in his account following official reports lodged with it on the matter.

They claimed that the purported investigation is a violation by the Executive branch of the independence of the judiciary and the separation of powers.

Recently, Judge Mohd Nazlan, who heard and convicted former Prime Minister Datuk Seri Najib Tun Razak over charges of misappropriation of SRC International Sdn Bhd funds, lodged a police report over news articles alleging that he was being investigated for unexplained money in his bank account.