LETTER | Condemning Najib's associates of smearing judge Nazlan

LETTER | The Coalition for Clean and Fair Elections (Bersih) and Gabungan Bertindak Malaysia (GBM) condemn in the strongest terms the recent campaign by parties associated with disgraced former prime minister Najib Abdul Razak to smear the good name of judge Mohd Nazlan Mohd Ghazali - the judge who presided in 2020 over Najib’s SRC International trial for money laundering and criminal breach of trust - which appear to have been designed to subvert the administration of justice and to bring the Malaysian judiciary into disrepute.

The background facts of this case are as follows:

• In April 2022, the chief commissioner of the MACC announced to the press that the MACC was investigating a judge for corruption offences, following allegations made against Justice Nazlan by Malaysia Today blogger Raja Petra Kamaruddin. Justice Nazlan later filed a police report denying the allegations.

• On Sept 29, 2022, the MACC announced that it had completed its investigation and was awaiting further instructions from the Attorney General’s Chambers. The MACC chief commissioner declined to provide any further comment or information.

• On Feb 23, 2023, the minister in the Prime Minister’s Department (Law and Institutional Reform) confirmed to the Dewan Rakyat that the MACC had submitted a report to the chief justice of the Federal Court in connection with alleged violations by Justice Nazlan of the Judges’ Code of Ethics 2009. It should be noted that no other information about the report was revealed.

• However, on March 20, 2023, the minister allegedly wrote to Najib’s lawyers confirming that the MACC had found Justice Nazlan to be in a conflict of interest when presiding over the SRC International trial and that Justice Nazlan had been in breach of the Judges’ Code of Ethics 2009.

Bersih and GBM remind all Malaysians that no one is above the law and that investigating authorities must investigate all allegations of wrongdoing made by members of the public, even against members of the judiciary.

However, because the safety and welfare of all Malaysians depend on the judiciary being allowed to administer justice independently, without fear or favour, allegations of wrongdoing cannot be allowed to be made in bad faith in order to subvert the administration of justice or to bring the judiciary into disrepute.

A definitive protocol for the handling of investigations against members of the judiciary was set out by the Federal Court on Feb 24, 2023, which provides that:

(i) The investigating body should first seek leave from the chief justice to investigate any judge;

(ii) The fact of the investigation or the contents of the investigation cannot be publicised or advertised without prior approval of the chief justice;

(iii) The entire contents of the investigation must remain confidential at all times; and

(iv) The public prosecutor must consult the chief justice when giving instructions during investigations and regarding his decision to prosecute.

As the Federal Court made clear:

It must be remembered that complaints are merely that - complaints. They can be entirely true or utterly spurious and calculated at damaging the judge’s credibility or reputation… The fact of a judge being accused of a crime is enough to affect his reputation and the reputation of the judiciary as a whole.

Bersih and GBM note that from the facts now available to the public, it is clear that three of the four stipulations made by the Federal Court have been violated by the MACC and the government.

The investigation of Justice Nazlan commenced without consulting the chief justice and the fact of the investigation was advertised without her approval. This was held by the Federal Court to be “a very strong indication of a lack of bona fides (good faith) in a criminal investigation”. Now, even the contents of the MACC’s findings have been publicised by the minister.

As many have noted, the MACC is empowered only to investigate offences against the MACC Act. Following such an investigation, it may forward a complaint to the chief justice of the Federal Court to decide whether further action should be taken under the Judges’ Code of Ethics 2009.

To avoid doubt, the MACC has no expertise or authority to decide whether a judge presiding over a criminal trial has a conflict of interest that requires him to recuse himself from the trial or to decide whether the judge has breached the Judges’ Code of Ethics 2009.

The management of a criminal trial is a matter solely for the trial and appellate courts - which have consistently rejected the allegations made by Najib’s lawyers, while matters of judicial ethics are for the chief justice, the Judges’ Ethics Committee, and/or a tribunal appointed by the Yang di-Pertuan Agong under Article 125 of the Federal Constitution.

The MACC’s intrusion into matters of judicial trial management and judicial ethics appears to demonstrate its arrogance, disrespect, and contempt for the independence of the judiciary.

It is clear from this episode that the MACC needs deep structural reforms to free it from the influence of the executive and not be weaponised for political expediency.

An inquiry into the MACC’s actions which was judged to be done in bad faith by the Federal Court and the “curious” timing of publicising their investigation just before Najib’s SRC final appeal before the apex court last year, should be initiated by a Parliamentary Special Select Committee.

It should be noted that spurious allegations of judicial misconduct are so serious and potentially damaging that even Parliament is prohibited by Article 127 of the Federal Constitution from allowing the conduct of a superior court judge to be discussed in Parliament, except on a substantive motion brought by no less than one-quarter of the members of the House.

Therefore, there is no way to justify that a minister is entitled to disclose the contents of an investigation into a judge simply because a question has been asked in the House.

Bersih and GBM believe the smear campaign that has been launched against Justice Nazlan and the Malaysian judicial system by his lawyers and associates is intended to secure and justify for Najib a royal pardon that would see him freed from prison.

We humbly call on His Majesty the Yang di-Pertuan Agong and all Malaysians to reject this attempt by a convicted criminal and his associates to subvert the administration of justice and to bring the judiciary into disrepute, and to insist that the chief justice be allowed to decide on any appropriate action independently based on the information before her.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.