The investigation of serving judges by criminal bodies without suspension undermines judicial independence and the separation of powers, necessitating Federal Court clarification.

JUDGMENT

Noorin Badaruddin J:

Broad Grounds Of Judgment

[1] The underlying proceeding herein centers on important issues ie. whether criminal investigation bodies, including the 2nd Defendant, are not entitled or otherwise precluded from investigating serving judges of the Superior Courts save where they are suspended pursuant to art 125(3) and art 125(5), Federal Constitution or removed pursuant to art 125(3) and whether the Public Prosecutor is not empowered to institute or conduct any proceedings for an offence against serving judges of the Superior Courts. Ultimately, the Applicants sought for a declaration that the investigation by the 2nd Defendant into learned Justice Dato' Mohd Nazlan bin Mohd Ghazali is unconstitutional.

[2] In the instant application (Enclosure 5), the Plaintiffs seek to move this Court to refer the following questions to the Federal Court (the"Questions"):

[2.1] Whether, having regard to art 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 art 125(5) ;

[2.2] 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 art 145(3) Federal Constitution , having regard to art 4 and Part IX, .

[3] In examining the OS and going by the reasoning advanced on behalf of the Plaintiffs this Court finds that the question arising in this matter relate to those provisions of the Federal Constitution concerning the independence of the judiciary vis-a-vis the doctrine of separation of powers. It is apparent that the investigation by the 2nd Respondent on a serving Judge of the Superior Court is viewed by the Applicants and undeniably by many quarters amongst the public as an encroachment of the separation of powers ie independence of the judiciary. The investigation is reasonably viewed as having given rise to the impression that the Judiciary is under attack which has a bearing on the public perception and confidence in the Judiciary. As the present matter is going on this Court takes cognizance of the fact as to the difference of opinions and views given on this issue and this Court cannot disagree that this is a matter of fundamental importance because it affects the Judiciary as a whole.

[4] All these underscore the urgency of the matter. It cannot be denied that this Court is empowered to determine the Questions but it becomes a question of concern of having to go through the appellate process on a matter that is important to the judiciary as a whole. As stated by the Federal Court in Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd & Anor; [2021]2 MLJ 652, [2021] 3 CLJ 603, the Federal Court is the correct and appropriate forum to hear matters that affect the judiciary as a whole. A definitive and final pronouncement by the Federal Court as the highest Court in the land on the Questions arising herein which have the direct bearing on the public confidence on and the independence of the judiciary are therefore essential. This Court is of the considered view a definitive and final pronouncement by the Federal Court on the Questions posed by the Applicant will benefit both parties of a speedy and economic final determination of the proceedings ie the OS herein.

[5] Enclosure 5 is therefore allowed with no order as to costs.