The other side of the Nazlan controversy

The other side of the Nazlan controversy



From Abdul Hamid Mohamad


Since Raja Petra Kamarudin published his article “Shocking revelation: Najib’s trial judge Nazlan’s conflict-of-interest exposed” on March 14 in his blog, we have only been reading one-sided views on the issue.

Among them include the chief registrar of the Federal Court, Bar Council, DAP leaders, the chief justice and law lecturer Shad Saleem Faruqi.

In this article, I have decided to give the opposite view with the sole purpose of allowing the public to listen to both sides of the argument so that they are in a better position to make up their minds. I am not saying I am right and they are wrong, nor that Raja Petra is right and judge Nazlan Mohd Ghazali is wrong, or otherwise.

First, I refer to the statement by the Bar Council and an article in The Edge. It is said that Raja Petra and certain politicians, especially Najib Razak’s supporters, are intimidating the judiciary. Whether this is true or not, can it not be equally argued that they too are intimidating the Malaysian Anti-Corruption Commission (MACC) from carrying out its duties?

They seem to forget that it was the MACC that investigated Najib, leading to his conviction. Now, just because an allegation has been made against the judge who convicted Najib, they jump to his defence and cast doubts on the credibility of the MACC.

The Bar Council demanded that an investigation should also be carried out by the authorities on the police report lodged by Nazlan, saying there should be no double standards.

It also said that the MACC probe violated the doctrine of separation of powers, undermined the judiciary’s independence and that it is unconstitutional. The council says the matter should be dealt with under Article 125 of the Federal Constitution.

Question: Had Nazlan acquitted Najib, would the Bar Council have issued a similar statement? It goes without saying that both Nazlan’s police report and the report made against him must be given “equivalent investigations”. And I am sure they are being given so.

By demanding “equivalent investigations” on Nazlan’s report, but at the same time, trying to prevent investigations being carried out on the report against the judge, isn’t the Bar Council practising double standards?

I received a number of WhatsApp and email messages, all from non-lawyers, asking the same question: is it against the doctrine of separation of powers for MACC to investigate a judge?

It shows that even non-lawyers found the opinion of the Bar Council weird. No judge is above the law. It also says that the investigation undermines the judiciary’s independence.

Madam president, independence of the judiciary does not include freedom to commit a crime and be prevented from being investigated.

The Bar Council also says that the investigation is unconstitutional. I would like to know under which provision this is unconstitutional.

The council president referred to Article 125. I urge her to read the article again. It refers to situations when a judge “ought to be removed on the grounds of any breach of any provision of the code of ethics prescribed under Clause (3B) or on the grounds of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office”.

It does not cover the commission of criminal offences.

On the other hand, the MACC and police only have powers to investigate criminal offences under their respective jurisdictions and not matters mentioned in Article 125.

Even though Shad Saleem tries to widen the coverage of Article 125, I do not think he can disagree with my previous last two sentences.

I now refer to the two press releases by the chief registrar of the Federal Court. For whatever reasons, no such allegations had ever been made against any judge in the last 50 years. So the reaction of the judiciary by issuing the press releases is also a first.

I believe that the chief registrar would not have issued such statements unless instructed by the chief justice. Take note that the allegation is not a general one against the judiciary. It is an allegation against a particular judge. Why should the judiciary jump to the defence of the judge?

Even though the allegations were made by a blogger, if Najib’s counsel does not make an application for a retrial or does not use it as grounds for appeal in the Federal Court for the court to set aside the conviction and order a retrial, the matter ends there.

But if Najib’s counsel chooses to do one of the two, and if the judiciary had not issued the statements, no criticism of bias could be levelled against it even if the court were to dismiss the application.

On the other hand, now that the statements had been issued, Najib’s counsel can argue that the court is biased as the judiciary had issued a statement dismissing the allegation. If the court dismisses the application, it gives ground for detractors to say that the court is biased.



Either way, why give Najib and his supporters a reason to attack the court’s decision? On the issue of sub judice, is the statement by the judiciary not sub judice? It should be more so, coming from the judiciary before the issue has been decided upon, if raised.

We now come to the chief justice’s speech. I do not disagree with any part of it. I only question the timing of it. Even though the chief justice did not mention it, anybody reading the speech knows that she was referring to the articles written by Raja Petra.

I repeat what I had said regarding the effects of the two press releases issued by the chief registrar. Note that an important event had happened after the second press release, that is the MACC confirmed that it was investigating the judge.

Question: Is it not better to allow the MACC to proceed and complete the investigation? At the end of it, the MACC may announce either there is no evidence to support the allegation or that there is sufficient evidence to support a charge(s).

If it is the former, the judge is cleared. Isn’t it better for the judge that the clearance comes from MACC after a thorough investigation and no such statement had been issued by the judiciary?

If it is the latter, then the file will be referred to the attorney-general to decide whether to charge the judge or not. Based on the evidence, if he decides not to, the matter ends there. If he decides otherwise, the trial process begins.

Whether or not the judge is cleared, no criticism could be levelled against the chief justice. She cannot be accused of trying to interfere with the investigation by the MACC.

Lest I am accused of being pro-Najib, let me make it clear that I do not care even if Najib has to spend the rest of his life in prison provided he gets a fair trial.

I do not say that Raja Petra’s allegation that Najib did not get a fair trial has merits or not. That is for the court to decide. I do not say that Raja Petra’s allegation and the reports against Nazlan that he was involved in the 1MDB financial scandal is true or not, nor whether Nazlan’s report against Raja Petra has merit or not.

That will only be known after the MACC has completed its investigations into both the allegation and the reports. Hence, the MACC should be allowed to do its job without any interference from anyone.

Note: As soon as I finished writing this article, I received a message from a friend that two lawyers and an activist had filed a suit in the High Court 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 proceeding for an offence against serving judges of the superior courts; and,
• The investigation by MACC into Nazlan was unconstitutional.

This news made me decide to publish this article.



Abdul Hamid Mohamad is a former chief justice of Malaysia.