Written by: Averroes
(1.0) Introduction
The whole scene occured when Raja Petra Kamarudin alleged judge Nazlan for allegedly having unexplained monies in his bank account. Nazlan then made a police report against the fugitive blogger. Later, the Malaysian Anti-Corruption Commission (MACC) decided to investigate Nazlan due to circulating accusations regarding his bank account.
This was confirmed by MACC Chief Commissioner Tan Sri Azam Baki.
Nazlan in return denied those false, baseless and malicious allegations. He further added that the allegations were to disrepute his estimation and credibility as a judge and to frustrate the administration of criminal justice and the judiciary.
Judge Nazlan was the man who presided over the trial of former Prime Minister, Datuk Seri Najib Razak and convicted him due to his 1MDB quandary.
(1.1) Raja Petra Kamarudin's exposure
Raja Petra published an article entitled "Shocking revelation: Najib's trial judge Nazlan's conflict-of-interest exposed" Abdul Hamid Mohamad criticised that, if that when there are certain parties that are intimidating the judiciary, would it not be equally right to say that MACC is also being intimidated?
The Malaysian Bar supports the opposite of the above statement, defending the judiciary from being attacked by the executive.
The Malaysian Bar Council adds, investigations should still be carried out based on the police reports lodged against Nazlan nevertheless, to prevent double standards. It was argued that if there were to be investigations, it should be within the parameters of article 125 of the Federal Constitution (FC).
Though, the opinion of parties highlighting on the doctrine of separation of powers have questioned as to how can the judges be above the law?
Even if article 125 of the FC was referred, it is for "the breach of any provision of the code of ethics under Clause (3B)... infirmity of body or mind, or any other cause, properly to discharge the functions of his office."
Nowhere under the provision mentions anything related to commission of criminal offences. In fact, if there is no investigation allowed by the MACC, then in one way, bias has already existed within the courts when dealing with Najib's graft trial.
(2.0) Separation of Powers
Plaintiffs Nur Ain Mustapa, Sreekant Pillai and Haris Ibrahim from Messrs Malik Imtiaz Sarwar filed an originating summons at the High Court, where they named Azam Baki, the MACC and the government as defendants. This came after the MACC conducted an investigation upon the Court of Appeal judge, Nazlan Mohd Ghazali.
They seek the following declarations which are;
(i) Criminal investigation bodies, including MACC are not entitled and precluded from investigation serving judge of the superior courts, unless suspended as under the Federal Constitution.
(ii) The Public Prosecutor is not empowered to institute or conduct any proceedings for an offence against serving judges of the superior courts.
From the above, these two declarations or questions concerned the constitutionality of the MACC's actions. This is because, it was argued that Malaysia is a country that practices the doctrine of separation of powers, whereby there is the violation of the executive branch into the judiciary.
Moreover, there were issues of equality before the law and the equal protection of the law. Though, the lawyers did admit that judges are not immune from criminal investigation, neither prosecution, they are still accountable for their offences, but must be balanced to ensure public confidence in the judiciary.
However, as parties argued on the issue of separation of powers, recently in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, court declared that as per Abdul Rahman Sebli FCJ, the doctrine of the separation of powers could not prevail of the FC.
He cements this by stating that, the judicial power of the Federation was within article 121(1) of the FC and it is not suborned to any doctrine of law, including the Indian doctrine of basic structure and common law doctrine of separation of power.
(3.0) Conflict of Interest
Generally, in Gardner v Nasshbille Housing Authority of Metropolitan Government of Nashville and Davison County, Tenn CA Tenn 514 F 2d 38, 41, conflict of interest refers to the disqualification of public officials from performing his sworn duty as there is a clash between public interest and the private pecuniary interest of the individual concerned.
What is this clash of public-private interest, it is to be further defined by case laws according to their facts and circumstances. In Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 456, the question of conflict of interest is one substance and court must be satisfied that there is real mischief and prejudice in all human probability.
Due to the statement by Raja Petra and the MACC's involvement, Lawyer Tan Sri Muhammad Shafee Abdullah and his client, Najib Razak want to have a retrial of the SRC International case or 1MDB because of judge Nazlan's alleged conflict of interest. A new application was also made to the Federal Court to adduce fresh evidence for Nazlan's conflict of interest.
This was because, Judge Nazlan was a group general counsel and company secretary for Maybank, that he participated to give 1MDB a loan of RM4.17 billion to partially finance loan of the acquisition of Tanjong Energy Holdings Sdn BHd. Judge Nazlan should have been disqualified because of his opinions surrounding the loans.
He was also the Head of Corporate and Legal Services for the bank. He also worked for the Securities Commission (SC) when 1MDB was financed and arranged. Clearly, Nazlan must have met or communicated with Jasmine Loo, Terence Geh Choh Heng and Casey Tang Keng Chee whom are all Jhow Low's people.
Judge Nazlan should have disclosed his supposed conflict of interest (if true), way before the 1MDB trial. He went through the process, formed certain opinions and that the company failed to pay.
The question is that, if we already have an opinion regarding a company, how can we dispense justice if that company is a party to a case and we are the judge?
(3.1) Raja Petra's explanation on conflict of interest
On his website, Malaysia Today, he outlined the circumstances which would amount to conflict of interest and in summary;
(i) Personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
(ii) Was in private practice, and the lawyer before him was that he practiced together with
(iii) Served in governmental employment as counsel, adviser or material witness or expressed an opinion regarding the merits of a particular case
(iv) He or as a fiduciary or family members has financial interest in the subject matter of controversy
(v) He or spouse or person with third degree relationship of them is either a party to proceeding, officer, director or trustee of party, acting as lawyer in the proceeding, known by judge to have interest and judge's knowledge to be a likely material witness.
(4.0) Conclusion
To conclude, the issues of conflict of interest and separation of powers is a growing topic and should be further discussed. As of now, with these rising problems, it is interesting to see how situations unfold regarding Najib's graft trial, especially now since it is in the Federal Court.
(5.0) References;
FMT Reporters. (2022) Haris Ibrahim, lawyers take govt to court over MACC's probe on judge Nazlan. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/05/06/lawyers-activist-take-govt-to-court-over-maccs-probe-on-judge-nazlan/
Adib Povera. (2022) MACC completes probe into judge Mohd Nazlan. Retrieved from, https://www.nst.com.my/news/crime-courts/2022/05/798197/macc-completes-probe-judge-mohd-nazlan
Abdul Hamid Mohamad. (May, 2022) The other side of the Nazlan controversy. Retrieved from, https://www.freemalaysiatoday.com/category/opinion/2022/05/07/the-other-side-of-judge-nazlan-controversy/
Achariam, T. (March, 2022) Najib seeks SRC retrial, claiming judge has conflict of interest. Retrieved from, https://www.theedgemarkets.com/article/najib-seeks-src-retrial-claiming-judge-has-conflict-interest
Raja Petra Kamarudin. (April, 2022) Nazlan Ghazali's Conflict of Interest. Retrieved from, https://www.malaysia-today.net/2022/04/22/nazlan-ghazalis-conflict-of-interest/
Khairudidin Mohd Amin. (March, 2022) Judge Mohd Nazlan allegedly has conflict of interest on SRC International case? Retrieved from, https://malaysiagazette.com/2022/03/15/judge-mohd-nazlan-allegedly-conflict-of-interest-src-international-case/
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