PUTRAJAYA: The Malaysian Anti-Corruption Commission’s (MACC) probe into a judge is not a violation of the principle of separation of powers as it is clear the agency’s task is to investigate, say legal experts.
They said it is not wrong for the MACC to initiate an investigation into Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali as the law authorises them to do so.
Lawyer Datuk Salehuddin Saidin said the system allows for authorities such as the MACC and the police to investigate.
“Once this is done, the investigation papers will be surrendered to the prosecution, who will then decide whether to prosecute or otherwise. The power to investigate and prosecute is separated,” he said.
Universiti Teknologi Mara (UiTM) legal adviser Prof Dr Haidar Dziyauddin said the MACC Act provides anti-graft officers with the power to investigate complaints, regardless of the status or position of the individual in question.
On claims the investigation is unconstitutional, both Haidar and Salehuddin said Article 125(3A) of the Federal Constitution provides for a mechanism dealing with the code of conduct of judges.
“There are parties saying that the constitutional mechanism such as a tribunal or the Judges’ Ethics Committee is applicable in this case. This mechanism deals with ethical issues of upper court judges based on a code of ethics, which is confined to disciplinary action.
“The question now is whether the jurisdiction of the tribunal covers criminal acts as well,” said Haidar.
Salehuddin said Article 125(3A) allows for a tribunal to be set up to look into the removal of a judge who is alleged to have breached the code of ethics.
“The tribunal does not have the power to investigate claims of criminal offence,” he added.
Haidar concurred that the investigation could have been initiated without the public having to know about it.
“The MACC could have done it quietly. Since it involves a judge, the case could attract public attention,” said Haidar.
Salehuddin said since the public are now aware that an investigation had been initiated, the MACC should also reveal the outcome of the investigation if it showed that the accusations against the judge are baseless.
“This is to clear his name and to avoid negative perception by the public on the judge,” he added.
He pointed out that the judge had also lodged a police report against a blog and therefore authorities should also investigate the report which he made against those who had accused him.
The MACC drew criticisms following its decision to probe Mohd Nazlan over allegations of unexplained money in his account.
The Human Rights Commission of Malaysia had described the action as “unconstitutional and unprecedented” and MACC’s investigation into the matter would set a negative and dangerous precedent that could undermine the judiciary.
The Malaysian Bar, which also described the investigation as unconstitutional, demanded a probe be carried out on the police report lodged by Mohd Nazlan.
Pasir Gudang MP Hassan Abdul Karim, who is a member of one of the MACC’s five oversight bodies, was vocal on the issue, saying this was not only a violation of the principle of separation of powers but also an attack by an executive agency on the judiciary.