FMT:
What protocol, ex-CJ asks apex court after Nazlan probe ruling
Abdul Hamid Mohamad has criticised the Federal Court’s finding that MACC’s probe into Justice Nazlan Ghazali violated protocol.
Abdul Hamid Mohamad served as the country’s fifth chief justice from November 2007 to October 2008. (Bernama pic)
PETALING JAYA: A former chief justice has torn into a recent ruling by the Federal Court which found that the investigation against Justice Nazlan Ghazali by the Malaysian Anti-Corruption Commission (MACC) had violated protocol.
In a blog post, Abdul Hamid Mohamad pointed out that there was no written law to govern the matter.
Neither has the protocol described by Chief Justice Tengku Maimun Tuan Mat ever been mentioned by the courts prior to its formulation by the Federal Court via its ruling last week, he said.
“Without finding any clear constitutional provisions to depend on, the court used the principle of judicial independence and created a new protocol.
“In effect, the MACC was found to have breached a protocol that had yet to exist.
“Whatever it is, the decision gave the courts an excuse to find fault with the investigation.
“Whether it has cleared Nazlan’s name is another matter altogether,” said Hamid, who served as Malaysia’s fifth chief justice from November 2007 to October 2008.
Hamid said the seven-member panel’s ruling should have stopped after it answered the two questions of the law posed in the case which the court was hearing.
Filed by lawyers Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim, the suit sought a declaration that the MACC was not permitted to investigate serving judges unless they were suspended or removed from office.
It also asked whether the prosecutor could initiate criminal proceedings against serving judges.
In its answer, the apex court held that investigative bodies like the MACC could probe serving judges and that they can be prosecuted for potential criminal offences.
“However, the chief justice and the judiciary could not allow their ruling to stop there, having twice issued statements defending Nazlan. Otherwise, it would seem as though the claims made by Raja Petra Kamaruddin are true.
“It must be noted that none of the parties in the case had pleaded or was asked to address the court on the matters which became the subject of the decision. Those matters were raised by the court on its own,” said Hamid.
The former chief justice said he had been extremely concerned by several decisions delivered by the Federal Court in recent times, and that the apex court had exceeded its jurisdiction in several decisions.
He said the present judgment made it seem like the legislative and executive branches of government did not have the power to carry out their duties independently.
The judgment also puts judges “on a pedestal higher than government ministers and even the Malay Rulers” by requiring the authorities to consult the chief justice before initiating a probe against serving judges.
According to Hamid, the judgment also insinuated that MACC’s probe had been carried out in bad faith and for “collateral purposes”.
“What other purpose could there have been? Only one comes to mind, which is to secure a court ruling that (former prime minister) Najib Razak had suffered an injustice and deserves a retrial,” he said.
“Have the judges forgotten that MACC has spent tens if not hundreds of hours investigating Najib’s case? If anyone would want Najib convicted, it would be the MACC,” he added.
Instead, MACC was portrayed as defending Najib, said Hamid.
The former top judge said he was not opposed to the establishment of a set of protocols when probing judges. However, that was a policy matter for the executive to deliberate on, he added.
“The judiciary can make its proposals on the matter to the executive. If the executive agrees, then it should be made law by Parliament,” said Hamid.
“In other words, do it the right way.”
Nazlan presided over Najib’s SRC International corruption trial and convicted him on seven counts of corruption and abuse of power.
He went on to sentence Najib to imprisonment for 12 years and imposed a fine of RM210 million.
Najib has maintained that Nazlan ought not to have tried the case due to a conflict of interest. He says Nazlan, in his previous capacity as general counsel of the Maybank Group, was directly involved in banking matters involving SRC and its then parent company, 1MDB.
Those complaints became the subject of an investigation by the MACC.
An incomplete document appearing to be the MACC’s report on the investigation was leaked online by Raja Petra shortly before the decision was handed down in July 2020.
Najib’s application to adduce fresh evidence relating to Nazlan’s alleged conflict of interest was dismissed by the Federal Court in August last year.
On Aug 23 last year, the apex court went on to dismiss Najib’s final appeal and ordered that his jail term commence immediately.
PETALING JAYA: A former chief justice has torn into a recent ruling by the Federal Court which found that the investigation against Justice Nazlan Ghazali by the Malaysian Anti-Corruption Commission (MACC) had violated protocol.
In a blog post, Abdul Hamid Mohamad pointed out that there was no written law to govern the matter.
Neither has the protocol described by Chief Justice Tengku Maimun Tuan Mat ever been mentioned by the courts prior to its formulation by the Federal Court via its ruling last week, he said.
“Without finding any clear constitutional provisions to depend on, the court used the principle of judicial independence and created a new protocol.
“In effect, the MACC was found to have breached a protocol that had yet to exist.
“Whatever it is, the decision gave the courts an excuse to find fault with the investigation.
“Whether it has cleared Nazlan’s name is another matter altogether,” said Hamid, who served as Malaysia’s fifth chief justice from November 2007 to October 2008.
Hamid said the seven-member panel’s ruling should have stopped after it answered the two questions of the law posed in the case which the court was hearing.
Filed by lawyers Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim, the suit sought a declaration that the MACC was not permitted to investigate serving judges unless they were suspended or removed from office.
It also asked whether the prosecutor could initiate criminal proceedings against serving judges.
In its answer, the apex court held that investigative bodies like the MACC could probe serving judges and that they can be prosecuted for potential criminal offences.
“However, the chief justice and the judiciary could not allow their ruling to stop there, having twice issued statements defending Nazlan. Otherwise, it would seem as though the claims made by Raja Petra Kamaruddin are true.
“It must be noted that none of the parties in the case had pleaded or was asked to address the court on the matters which became the subject of the decision. Those matters were raised by the court on its own,” said Hamid.
The former chief justice said he had been extremely concerned by several decisions delivered by the Federal Court in recent times, and that the apex court had exceeded its jurisdiction in several decisions.
He said the present judgment made it seem like the legislative and executive branches of government did not have the power to carry out their duties independently.
The judgment also puts judges “on a pedestal higher than government ministers and even the Malay Rulers” by requiring the authorities to consult the chief justice before initiating a probe against serving judges.
According to Hamid, the judgment also insinuated that MACC’s probe had been carried out in bad faith and for “collateral purposes”.
“What other purpose could there have been? Only one comes to mind, which is to secure a court ruling that (former prime minister) Najib Razak had suffered an injustice and deserves a retrial,” he said.
“Have the judges forgotten that MACC has spent tens if not hundreds of hours investigating Najib’s case? If anyone would want Najib convicted, it would be the MACC,” he added.
Instead, MACC was portrayed as defending Najib, said Hamid.
The former top judge said he was not opposed to the establishment of a set of protocols when probing judges. However, that was a policy matter for the executive to deliberate on, he added.
“The judiciary can make its proposals on the matter to the executive. If the executive agrees, then it should be made law by Parliament,” said Hamid.
“In other words, do it the right way.”
Nazlan presided over Najib’s SRC International corruption trial and convicted him on seven counts of corruption and abuse of power.
He went on to sentence Najib to imprisonment for 12 years and imposed a fine of RM210 million.
Najib has maintained that Nazlan ought not to have tried the case due to a conflict of interest. He says Nazlan, in his previous capacity as general counsel of the Maybank Group, was directly involved in banking matters involving SRC and its then parent company, 1MDB.
Those complaints became the subject of an investigation by the MACC.
An incomplete document appearing to be the MACC’s report on the investigation was leaked online by Raja Petra shortly before the decision was handed down in July 2020.
Najib’s application to adduce fresh evidence relating to Nazlan’s alleged conflict of interest was dismissed by the Federal Court in August last year.
On Aug 23 last year, the apex court went on to dismiss Najib’s final appeal and ordered that his jail term commence immediately.
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Abdul Hamid Mohamad
COMMENT | Since Raja Petra Kamaruddin published his article ‘Shocking Revelation: Najib’s Trial Judge Nazlan’s Conflict-of-Interest Exposed’ on March 14, 2022, in his blog, Malaysia Today, we have only read one-sided views on the issue, be it from the press release by the Chief Registrar, the Bar Council, the chairperson and deputy chairperson of the DAP, the Chief Justice, The Edge, or constitutional expert Shad Saleem Faruqi.
In this article, I am giving the opposite view with the sole purpose of giving the public arguments on both sides so that they are in a better position to make up their mind on the issue. I am neither saying I am right and they are wrong, nor that Raja Petra is right and judge Nazlan is wrong, or otherwise.
I refer to the statement by the Bar Council and article in The Edge. It is said that Raja Petra and politicians, especially former prime minister Najib Abdul Razak’s supporters, are intimidating the judiciary.
Whether that is true or not, can it not be equally argued that they too are intimidating the MACC from doing its duties? They seem to forget that it was the MACC that investigated Najib leading to his conviction.
Now, just because an allegation is made against the judge who had convicted Najib, which conviction they are afraid of being set aside, they jumped to his defence and cast doubts on the credibility of the MACC.
Are judges above the law?
The Bar Council demands equivalent investigations to be carried out by the authorities on the police report lodged by judge Nazlan; that there should be no double standards in approaching the matter; that the MACC probe violated the doctrine of separation of powers; that it undermined the judiciary’s independence; that it is unconstitutional and that it should be dealt with under Article 125 of the Constitution.
Question: Had judge Nazlan acquitted Najib, would the Bar Council issue 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. But, by demanding “equivalent investigations” on Nazlan’s report but trying to prevent investigation to be carried out on the report against the judge, is the Bar Council not practising double standard?
COMMENT | Since Raja Petra Kamaruddin published his article ‘Shocking Revelation: Najib’s Trial Judge Nazlan’s Conflict-of-Interest Exposed’ on March 14, 2022, in his blog, Malaysia Today, we have only read one-sided views on the issue, be it from the press release by the Chief Registrar, the Bar Council, the chairperson and deputy chairperson of the DAP, the Chief Justice, The Edge, or constitutional expert Shad Saleem Faruqi.
In this article, I am giving the opposite view with the sole purpose of giving the public arguments on both sides so that they are in a better position to make up their mind on the issue. I am neither saying I am right and they are wrong, nor that Raja Petra is right and judge Nazlan is wrong, or otherwise.
I refer to the statement by the Bar Council and article in The Edge. It is said that Raja Petra and politicians, especially former prime minister Najib Abdul Razak’s supporters, are intimidating the judiciary.
Whether that is true or not, can it not be equally argued that they too are intimidating the MACC from doing its duties? They seem to forget that it was the MACC that investigated Najib leading to his conviction.
Now, just because an allegation is made against the judge who had convicted Najib, which conviction they are afraid of being set aside, they jumped to his defence and cast doubts on the credibility of the MACC.
Are judges above the law?
The Bar Council demands equivalent investigations to be carried out by the authorities on the police report lodged by judge Nazlan; that there should be no double standards in approaching the matter; that the MACC probe violated the doctrine of separation of powers; that it undermined the judiciary’s independence; that it is unconstitutional and that it should be dealt with under Article 125 of the Constitution.
Question: Had judge Nazlan acquitted Najib, would the Bar Council issue 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. But, by demanding “equivalent investigations” on Nazlan’s report but trying to prevent investigation to be carried out on the report against the judge, is the Bar Council not practising double standard?
Court of Appeal judge Mohd Nazlan Mohd Ghazali
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. Do I have to say more to the president of the Bar Council?
The Bar Council also said that the investigation undermines the judiciary’s independence. Madam president, the independence of the judiciary does not include the freedom to commit a crime and from being investigated for it.
The Bar Council also said that the investigation is unconstitutional. I would like to know under which provision of the Constitution it is unconstitutional?
She referred to Article 125. I urge her to read the article again. That article refers to situations when a judge “ought to be removed on the ground of any breach of any provision of the code of ethics prescribed under Clause (3B) or on the ground 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 the police only have the power to investigate criminal offences under their respective jurisdiction 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 last two sentences.
Judiciary’s knee-jerk reaction gives opponents ammunition
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 fifty 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 allegation 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 allegation was made by a blogger, if Najib’s counsel does not make an application for a retrial or does not use it as a ground of appeal in the Federal Court for the court to set aside the conviction and order a retrial, the matter ends there.
If Najib’s counsel chooses to do one of the two things earlier mentioned if no statement had been issued by the judiciary, even if the court were to dismiss the application or argument, no criticism on grounds of bias could be levelled against the judiciary.
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. Do I have to say more to the president of the Bar Council?
The Bar Council also said that the investigation undermines the judiciary’s independence. Madam president, the independence of the judiciary does not include the freedom to commit a crime and from being investigated for it.
The Bar Council also said that the investigation is unconstitutional. I would like to know under which provision of the Constitution it is unconstitutional?
She referred to Article 125. I urge her to read the article again. That article refers to situations when a judge “ought to be removed on the ground of any breach of any provision of the code of ethics prescribed under Clause (3B) or on the ground 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 the police only have the power to investigate criminal offences under their respective jurisdiction 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 last two sentences.
Judiciary’s knee-jerk reaction gives opponents ammunition
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 fifty 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 allegation 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 allegation was made by a blogger, if Najib’s counsel does not make an application for a retrial or does not use it as a ground of appeal in the Federal Court for the court to set aside the conviction and order a retrial, the matter ends there.
If Najib’s counsel chooses to do one of the two things earlier mentioned if no statement had been issued by the judiciary, even if the court were to dismiss the application or argument, no criticism on grounds of bias could be levelled against the judiciary.
Former prime minister Najib Abdul Razak
On the other hand, where the statement was issued, Najib’s counsel could argue that the court is biased as the judiciary had issued a statement dismissing the allegation. If and when the court dismisses the application or argument, 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, it coming from the judiciary before the issue is 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 Malaysia Today that judge Nazlan is under investigation by the MACC.
Let MACC do its job
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 i.e. 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 the investigation, 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 has been issued by the judiciary? If it is the latter, then the file will be referred to the public prosecutor (the attorney-general) to decide whether to charge the judge or not. If, based on the evidence, the public prosecutor 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 did not say whether Raja Petra’s allegation that Najib did not get a fair trial has merits or not. That is for the court to decide. I did not say whether Raja Petra’s allegation and the reports against Nazlan that he was involved in the 1MDB financial scandal is true or not, or whether the judge’s report against Raja Petra has merits or not.
That will only be known after the MACC has completed its investigations on both the allegation and the reports. Hence, the MACC should be allowed to do its job without any or seemed interference by anyone.
ABDUL HAMID MOHAMAD is a former Chief Justice.
On the other hand, where the statement was issued, Najib’s counsel could argue that the court is biased as the judiciary had issued a statement dismissing the allegation. If and when the court dismisses the application or argument, 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, it coming from the judiciary before the issue is 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 Malaysia Today that judge Nazlan is under investigation by the MACC.
Let MACC do its job
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 i.e. 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 the investigation, 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 has been issued by the judiciary? If it is the latter, then the file will be referred to the public prosecutor (the attorney-general) to decide whether to charge the judge or not. If, based on the evidence, the public prosecutor 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 did not say whether Raja Petra’s allegation that Najib did not get a fair trial has merits or not. That is for the court to decide. I did not say whether Raja Petra’s allegation and the reports against Nazlan that he was involved in the 1MDB financial scandal is true or not, or whether the judge’s report against Raja Petra has merits or not.
That will only be known after the MACC has completed its investigations on both the allegation and the reports. Hence, the MACC should be allowed to do its job without any or seemed interference by anyone.
ABDUL HAMID MOHAMAD is a former Chief Justice.
Hamilton can be put in the same box as Apandi beholden to Umno. How much?
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