FEBRUARY 25 ― Malaysians should read the judgments of cases before making comments, Chief Justice Tun Tengku Maimun Tuan Mat once urged, not too long ago.

It is an apt reminder, following the Federal Court’s decision on Friday that unanimously held that the Malaysian Anti-Corruption Commission’s (MACC) investigation against Justice 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 Justice Nazlan over claims that the latter had an unexplained RM1 million in his account.

The Federal Court was answering two Constitutional questions referred by the High Court that required answers directly from the apex court.

The questions were:

Question 1

Whether, having regard to Article 4 and Part IX, Federal Constitution, criminal investigation bodies, including but not limited to the MACC, are only legally permitted to investigate into judges of the High Court, Court of Appeal and the Federal Court that have been suspended pursuant to Article 125(5), Federal Constitution.

Question 2

Whether the Public Prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges of the High Court, Court of Appeal and the Federal Court pursuant to Article 145(3), Federal Constitution, having regard to Article 4 and Part IX, Federal Constitution.

If one were to read the full judgement of the apex court, he would find the short answers to the questions were "No” to Question 1 and "Yes” to Question 2.

By both answers, the apex court has affirmed the Constitutional entitlement of criminal investigative bodies, including MACC, to investigate, and the public prosecutor to decide whether or not to charge judges of the superior court.

However, the Federal Court did not think that the answers above were the end of the matter. The apex court considered it necessary to clarify its judgment as it concerned the principle of judicial independence.

Chief Justice Tengku Maimun, who delivered the judgement of the apex court, said:

"While this case seeks to question the constitutional limits of the respondents and other criminal investigative bodies to investigate Superior Court Judges, our answers to the [questions] in a constitutional sense are not otherwise a broad sanction for the said bodies to have a free hand in criminal investigations.

"This observation of ours is borne out by the real and apparent concerns raised by the [three lawyers] and the [Malaysian] Bar on the significance of separation of powers, the bane of democracy and attacks on the independence of the Judiciary.”

The learned Chief Justice continued:

"The cases on the importance of judicial independence ... are trite. The fact is that while the [MACC] and other criminal investigative bodies are constitutionally entitled to investigate and the Public Prosecutor to commence criminal proceedings against Superior Court Judges, those powers must be exercised in good faith and only in genuine cases.

"Any abuse of those powers such as using them for collateral purposes not only constitutes possible offences such as abuse of power or obstruction of justice, but also constitutes actionable complaints through the Courts’ statutory review powers.”

The Chief Justice reminded criminal investigative bodies that they "are bound to comply with the law.” The onus on them to comply with the law is even more onerous when it concerns a serving judge of the superior court because not only are they bound by the judges' guarantees of fundamental rights under the Federal Constitution, due process of the law governing their powers and criminal procedure, but also the prohibition against judicial interference.

Judicial independence is a sacrosanct concept. Judges and the entire judicial process must be free to perform their functions freely and independently to arrive at a just and fair decision.

As the Chief Justice rightly alluded in her written judgement, the fact remains that no matter which way one looks at it, criminal investigative bodies are executive bodies and thus investigations into judges of the superior court can amount to judicial interference.

"This is the case whether the crime alleged is against or tied to a judicial act or an extra-judicial act,” said the Chief Justice. The written judgment is available in the eJudgment Management System:

Accordingly, when criminal investigative bodies investigate serving judges of the superior court, they are not to violate the doctrine of judicial independence.

The scheme of the Federal Constitution requires that when investigating a criminal complaint, the relevant criminal investigative body must first consult the Chief Justice before commencing any investigations into a judge of the superior court.

It must be said that the above decision is consistent with the Indian position which was expounded by the country’s apex court, the Supreme Court, which sat as a Constitution Bench ― much like the Federal Court ― in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655.

In that case, the Supreme Court observed that the apprehension that the executive was likely to misuse the power to prosecute judges, and that any investigation of a judge would have a far-reaching effect on the judiciary, there must be judicious use of action taken under the law against a judge.

As such, there could not be an investigation against a judge of the superior court without the consultation of the Chief Justice.

"[The] independence of judiciary cannot be left at the mercy of the [investigation agency]. There cannot be any [investigation] ... without permission of the Chief Justice,” said the Indian Supreme Court.

It does not mean that the Chief Justice has the power to sanction or stymie any investigation, rather, simply the right to be informed on what is transpiring with a judge and hence the Judiciary as a whole.

However, the failure to consult the Chief Justice is a very strong indication of a lack of bona fides in a criminal investigation.

It was in the light of the above that Tengku Maimun saw fit to list out a set of protocols which must be followed when a judge of the superior court is investigated, the first of which is for the relevant criminal investigative body to "first seek leave from the Chief Justice to investigate any Judge.”

"The Chief Justice might know details that the investigative body does not and, in any case, informing the Chief Justice is necessary as a safeguard of judicial independence,” said Tengku Maimun.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.