Criminologist: MACC is independent, does not need to consult judiciary to investigate judge

(NST) – A criminologist said the Malaysian Anti-Corruption Commission (MACC) does not need to consult the judiciary before investigating a complaint against a judge.

Criminologist Dr Kassim Mohamed said according to the MACC Act 2009, there is no such protocol for the commission to follow with regards to any complaints received against a judge.

The MACC, said Kassim, is an independent institution as it is able to investigate whoever the commission wants without having to ask anyone for permission.

“Whenever there is a complaint, MACC has the freedom to investigate without referring to anybody. That underscores the independence of the anti-corruption commission,” he said.

Kassim, who is also Enforcement Leadership and Management University vice-chancellor was sharing his views on the ruling by the Federal Court over a probe by MACC against Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali.

Chief Justice Tun Tengku Maimun Tuan Mat, who led a seven-member panel, said the investigation against Nazlan was done without following protocols.

She said such an investigation must be conducted in accordance with certain protocols to protect judicial independence.

Among the protocols that must be adhered to, she said, included that the public prosecutor must consult the chief justice when giving instructions during investigations and in respect of his decision to prosecute.

She also questioned the timing of the investigation, which was done on the eve of Datuk Seri Najib Razak’s final appeal to overturn the 12-year jail sentence and RM210 million fine for the misappropriation of SRC International funds.

Nazlan was the High Court judge who convicted and sentenced Datuk Seri Najib Razak to 12 years jail and a RM210 million fine for misappropriating RM42 million of SRC International Bhd funds.

Kassim said the Chief Justice’s ruling over the case is both intriguing and raises a number of questions for a layperson to comprehend.

“While there seemed to be a concern that the executive is encroaching on the turf of the judiciary, conversely, does this tantamount to the judiciary encroaching on the powers of the executive by insisting that law enforcement bodies have to consult the judiciary to commence investigations?

“If an allegation of misconduct has been made by the public against a member of an institution, would it not be better for the department head to welcome any investigations, and ask for the findings as soon as possible in order to protect the good name of the said institution?” Kassim asked.

He also questioned whether an institution can investigate itself, or holds the power to allow, or not, another body to investigate itself.

“The points raised here are not to challenge the Chief Justice’s rulings, but to further seek for clarifications for the benefit of the public at large,” he said.

Tengku Maimun said this in her ruling over an application to refer two constitutional questions relating to MACC’s investigation against Nazlan by two lawyers and an activist.

The suit was filed by plaintiffs Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim on May 7, last year, who seek to declare that MACC was not entitled to investigate serving judges unless the latter have been suspended or removed.

The plaintiffs, represented by solicitors Messrs Malik Imtiaz Sarwar, named MACC Chief Commissioner Tan Sri Azam Baki, MACC and the government as the first to third defendants in the suit.

They are also seeking a declaration that a public prosecutor was not empowered to institute or conduct any proceedings for an offence against serving judges of a court and that investigations against Nazlan were unconstitutional.