Judge Mohd Nazlan probe: July 19 decision on application to refer questions of law

Judge Datuk Noorin Badaruddin fixed the date after hearing submissions by counsel Datuk Malik Imtiaz Sarwar, representing the trio as the plaintiffs, while Solicitor-General Datuk Ahmad Terrirudin Mohd Salleh appeared for the defendants, namely, MACC's Chief Commissioner Tan Sri Azam Baki, MACC and the Malaysian government.

Earlier, Malik Imtiaz submitted that the questions are complex, involving the issues of criminal investigative powers, judicial independence vis-a-vis the doctrine of separation of powers, and public confidence in the judiciary.

"Although there are a number of decisions of the Federal Court on these distinct areas, there are no decisions of that court on the power of criminal investigative bodies to investigate a judge, or the power of the public prosecutor to institute proceedings against a judge for an offence.

"As far as the plaintiffs are aware, the investigation by the MACC on the appellate judge is of an unprecedented nature.

"The investigation is reasonably viewed as having given rise to the impression that the judiciary itself is under attack. The investigation by the MACC thus has a bearing on public confidence in the judiciary. This is a matter of fundamental importance which affects the judiciary as a whole.

"That being the case, a written complaint could have been made to the Chief Justice by the person who lodged the report with the MACC against the appellate judge or even the MACC itself," he said.

Meanwhile, Ahmad Terrirudin submitted that Section 84 of Act 91 of the Courts of Judicature Act 1964 required the existence of some issues of fact to be determined by the High Court, separate and distinct from the constitutional questions to be referred to the Federal Court.

"It also requires to be remitted to the High Court for disposal. Section 84 is a mechanism to refer specific questions to the Federal Court; it does not empower the High Court to transfer the entire case to the Federal Court.

"The effect of the present application would have the court dispose of the entire case as the court of first and last resort, and reduce the role of the High Court to a mere messenger. This is contrary to the scheme of the Federal Constitution as well as Section 84 of Act 91," he said.

Two lawyers, Nur Ain Mustapa and Sreekant Pillai, as well as activist Haris Fathillah Mohamed Ibrahim have filed an originating summons to seek a declaration that the investigation conducted by the MACC against Mohd Nazlan is unconstitutional.

They raised two questions 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.

In a suit filed on May 6, the three plaintiffs are seeking to declare that the MACC is not entitled to investigate serving judges unless they have been suspended or removed.

They also seek a declaration that a public prosecutor is not empowered to institute or conduct any proceedings for an offence against serving court judges and that the investigation against judge Mohd Nazlan was 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, 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.