Lawyer: Federal Court must decide if MACC can air views on judge’s conduct

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The constitutional issue of whether MACC has the legal authority to give views that SRC Judge Nazlan had committed judicial misconduct.

Does the MACC have the power to investigate and give views that the judge who presided over former prime minister Najib Abdul Razak’s RM42 million SRC International corruption case had breached the Judges’ Code of Ethics 2009?

Lawyer Lim Wei Jiet told the Kuala Lumpur High Court this morning the issue is of paramount importance that must be decided by the Federal Court.

The counsel was submitting during today’s High Court hearing on Muda’s bid to have the Federal Court look into the constitutional issue of whether MACC has the legal authority to investigate and give views on a superior court judge having violated the Judges’ Code of Ethics.

Muda seeks the apex court’s determination on the issue in order to bring a speedy resolution to the political party’s related lawsuit (pending before the High Court) against MACC over the anti-graft agency’s probe of SRC judge Mohd Nazlan Mohd Ghazali.

During online proceedings before Judge Ahmad Kamal Md Shahid, Lim, Muda’s counsel, submitted that the apex court needs to look into the issue as it dealt with the independence of the judiciary to decide cases without fear or favour.

Lim pointed out that despite the Federal Court last year having upheld Najib’s conviction and 12-year jail sentence in the SRC case, the court then did not make a ruling on whether MACC had overstepped its power by communicating its view that Nazlan had committed judicial misconduct.

The lawyer said this is because the then apex bench – chaired by Chief Justice Tengku Maimun Tuan Man – had merely ruled that Nazlan did not breach the Judges’ Code of Ethics, but did not touch on whether the MACC had the power to air views on misconduct against judges in the first place.

Lim then made reference to MACC’s letter to Tengku Maimun, which showed the anti-graft agency sharing its view that Nazlan had contravened Section 8(1)(a) of the Judges’ Code of Ethics.

“This was a decisive finding by MACC on (Nazlan’s) breach of the Judges’ Code of Ethics.

“Our challenge is whether MACC has the power in the first place to reach the view, conclusion, or finding that Nazlan had breached the Judges’ Code of Ethics.

“This is a live issue as it involves not just Nazlan (a former High Court judge who was later elevated to the Court of Appeal), but also could set a precedent on whether MACC can make similar findings against other judges over Judge’s Code of Ethics,” Lim said.

The lawyer added that the MACC only has the power to investigate judges for alleged breaches of the MACC Act 2009 and nothing more than that.

MACC’s legal representative from the Attorney-General’s Chambers (AGC), senior federal counsel Ahmad Hanir Hambaly, however, opposed Muda’s bid to refer the constitutional issue to the apex court.

Hanir submitted this is because Muda’s pending suit against MACC involved numerous disputes of fact, and thus the High Court should just continue to hear the merits of the legal action rather than referring the constitutional issue to the Federal Court.

He said among these disputed facts is the MACC’s contention that the probe against Nazlan was never done under the Judges’ Code of Ethics but rather under Section 16 of the MACC Act.

Hanir added that the MACC’s contention was that the view it shared with Tengku Maimun about Nazlan was merely a view that did not amount to the agency exceeding its authority under the law.

Towards the end of proceedings, Ahmad Kamal set Jan 17 next year to decide on whether to allow Muda’s referral bid to the Federal Court.

Previously, the MACC had made a filing at the High Court that Muda’s entire legal action was academic as the apex court had already cleared Nazlan of any judicial misconduct, thus the entire suit should be dismissed. – Malaysiakini