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2023 MarsdenLR 2391
FEDERAL COURT PUTRAJAYA
HARIS FATHILLAH MOHAMED IBRAHIM & ORS – Appellant
Versus
TAN SRI DATO SRI HAJI AZAM BAKI & ORS – Respondent
[Civil Reference No: 06(RS)-4-07-2022(W)]
Judges are not immune from criminal investigations, but such investigations must uphold judicial independence and can only occur under lawful and serious circumstances.
Headnote:The court examined the constitutional references related to the investigation of serving Judges under articles of the Federal Constitution, particularly focusing on articles 125 and 145. The case arose from investigations into a Superior Court Judge by the MACC, questioning the legal permissibility of such actions. It was determined that while Judges are not immune from investigation, any such proceedings must adhere to a higher standard due to judicial independence, and cannot be conducted arbitrarily or without proper context. Ultimately, the court concluded that serving Judges can be investigated and prosecuted without prior suspension or removal, but cautioned against potential misuse of power in these matters.
| Table of Content |
|---|
| 1. reference filed on constitutional grounds. (Para 1 , 2 , 3) |
| 2. macc's legal basis for investigation of judge. (Para 10 , 11 , 12) |
| 3. appellants argue limits on investigatory powers. (Para 15 , 16 , 20) |
| 4. judges' need for protection from frivolous investigations. (Para 41 , 42 , 44) |
| 5. parameters of judicial ethics and conduct. (Para 45 , 56 , 57) |
Introduction
[1] This is a constitutional reference ('Reference') filed pursuant to ss 84 and 85 of the Courts of Judicature Act 1964 ('CJA 1964') in the presently stayed proceedings in Originating Summons No WA-24-24-05/2022 at the High Court in Malaya at Kuala Lumpur ('OS').
[2] The appellants are practising advocates and solicitors of the High Court in Malaya. The 2nd respondent is the Malaysian Anti-Corruption Commission ('MACC') while the 1st respondent is its Chief Commissioner. The 3rd respondent is the Government of Malaysia.
[3] The OS was filed to seek the following declaratory reliefs:
(1) That criminal investigation bodies, including the 2nd respondent (MACC), are not entitled or are otherwise precluded from investigating serving Judges of the High Court, the Court of Appeal and the Federal Court save when they are suspended pursuant to art 125(5), Federal Constitution or removed pursuant to art 125(3); and/or
(2) That the Public Prosecutor is not empowered to institute or conduct any proceedings for an offence against serving Judges of the High Court, Court of Appeal and the Federal Court.
[4] The learned High Court Judge agreed with the appellants that there are questions of fundamental importance that required answers directly from the Federal Court. The two constitutional questions ('Questions') that were referred to the Federal Court read:
"Question 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), 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 art 145(3), Federal Constitution, having regard to art 4 and Part IX, Federal Constitution.".
[5] For convenience, we shall in this judgment, refer to the Federal Constitution as 'FC' and unless stated otherwise, any reference to 'Articles' are references to the Articles of the FC. And since Judges of the High Court, Court of Appeal and the Federal Court are all Judges of the Superior Courts established under Part IX of the FC, we shall refer to Judges of the High Court, Court of Appeal and the Federal Court collectively as 'Superior Court Judges'.
Backgrounds Facts
[6] The OS and the ensuing Reference arise out of criminal investigations that were undertaken by the MACC, against a currently serving Judge of the Court of Appeal, Justice Mohd Nazlan bin Mohd Ghazali ('Justice Nazlan').
[7] The brief facts leading up to the present proceedings are as follows.
[8] On 20 April 2022, a blogpost in a website called 'MalaysiaToday' published an article alleging that the MACC was investigating Justice Nazlan for procuring inexplainable wealth. Around 23 April 2022, The Star Newspaper carried a report wherein the 1st respondent confirmed that an investigation had been commenced against Justice Nazlan based on several reports that the MACC had received.
[9] Then, on 28 April 2022, the MACC issued a press statement ('Press Statement') effectively announcing and confirming that they had begun investigations into a Judge. Though his name was not mentioned in the Press Statement, it is apparent that 'the said Judge' mentioned therein was Justice Nazlan. The following words in the opening line of that Press Statement, make it clear:
"THE Malaysian Anti-Corruption Commission (MACC) would like to clarify
