MP, former Bar presidents barking up the wrong tree

 

Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said has done no wrong. She gave an answer in the Dewan Rakyat on Feb 22, 2023, in response to questions from two MPs - Tenggara (BN) and Tasek Gelugor (Perikatan Nasional) - regarding the status of investigations on Court of Appeal judge Mohd Nazlan Mohd Ghazali.

Her reply to former prime minister Najib Abdul Razak’s lawyers was merely to confirm what she had said in the Dewan Rakyat. As the minister of law, should she not have replied to a duly registered law firm and should have just ignored their letter?

Azalina (above) answer in Parliament predates the Federal Court ruling on Feb 24, 2023, that the MACC and the attorney-general (AG) must follow protocols to seek permission from the Chief Justice before investigating or charging a sitting judge. So, how could she be in contempt of a ruling that had not happened yet?

Therefore, Selayang MP William Leong’s accusation that Azalina had committed contempt has no merit. And why is it that a government MP is openly throwing false allegations against his own government’s minister? Does it add to the perception of stability of the current government?

Many of the rakyat had felt uncomfortable with these new protocols as it meant that judges were now seen to be above the law. In fact, the Federal Court ruling read by the Chief Justice also stated that permission must also be obtained from the Chief Justice if MACC and the AG wanted to investigate or charge the Chief Justice.

The problem is that these protocols never existed before. This is confirmed by former Chief Justice Abdul Hamid Omar, who had severely criticised the said Federal Court ruling and said that the judiciary had over-reached against the executive to enact new laws.

‘Curious timing’

Similarly, the MACC would also not have been in contempt as it had completed its investigation and sent its recommendations and report to the Chief Justice on Feb 20, 2023, again predating the Federal Court’s judgement.

The MACC Operation Review Panel chairperson, who is also a former deputy head (prosecution division) at the Attorney-General’s Chambers, Ahmad Rosli Mohd Sham had also stated that:

• The MACC has the power to investigate any sitting judge.

• That the MACC in certain cases may also refer a case for disciplinary action in accordance with Surat Pekeliling Perkhidmatan Bil 17 Tahun 1975 and Surat Pekeliling Perkhidmatan Bil 5. Tahun 1997 with the consent of the public prosecutor (the AG).

• That MACC had sent the letter and report to the Chief Justice on judge Nazlan with the agreement of the attorney-general.

The MACC had received a report made by an NGO about judge Nazlan after former Goldman Sachs executive Tim Leissner testified in court in April 2022 that the former was also involved in 1MDB-related matters when Nazlan was company secretary and General Counsel for Maybank.

This addresses the “curious timing” argument of MACC’s investigations. Malaysia has no control over the timing of Tim Leissner proceedings in the US courts.

Discrepancies

In the course of MACC’s investigations, the agency found various discrepancies and concerns. Should the MACC just keep quiet about it and not report it to anyone?

The letter and attached report sent by MACC to the Chief Justice had been leaked about a week earlier. To date, neither the Chief Justice nor the MACC had confirmed or denied the authenticity of the report.

Those who are attacking Azalina and the MACC over the Nazlan investigations are simply missing the point. Instead, they should focus on the findings of the investigations if indeed the leaked letter and reports are genuine. These include:

• The source of the RM42 million is an RM170 million loan made by Putrajaya Perdana Berhad and Permai Binaraya Berhad from Maybank, when Nazlan was the bank’s company secretary and general counsel - not from KWAP as stated in Nazlan’s judgement.

• That SRC International was formed based on a suggestion and proposal from Maybank to 1MDB and that Maybank was paid to set up SRC, including forming its business strategy, policies, procedures, and business model - not set up by Najib to facilitate him taking money as stated in Nazlan’s judgement.

• Three other judges were approached and declined to take over the SRC case from judge Mohd Sofian Abd Razak before judge Nazlan agreed to do so despite him having zero criminal court experience at that time.

The last finding is especially concerning as it is not proper for judges to be approached privately to take over any case and for them to refuse directly. Judges are supposed to be assigned randomly via a computer system and if he or she feels she is not suitable, they have to offer to recuse themselves in an open court.

Court of Appeal Judge Mohd Nazlan Mohd Ghazali

We must also be reminded that the least experienced judge possible with zero criminal case experience had then been transferred out from the commercial courts to take over the highest-profile criminal case in the country to replace a more experienced judge after court proceedings had started.

Therefore, if proven true that three judges were approached and declined privately before Nazlan had agreed, this will give rise to allegations of forum/judge shopping - where judges were specially picked to take over cases to ensure a desired outcome.

Questionable appointments

To further complicate matters, it must also be noted that the transfer of judges for Najib’s case had taken place after Dr Mahathir Mohamad’s government had asked the top judges including the Chief Justice to resign - a matter that was severely criticised at that time by MP Ramkarpal Singh, who is now the Deputy Minister of Law and Institutional reforms.

The government special panel to investigate Tommy Thomas book had also determined that the Mahathir government may have breached the Judicial Appointment (JAC) Act 2009 when he had appointed the top judges in 2018 and 2019 when every single recommended candidate from the JAC was completely ignored.

For example, current Chief Justice Tengku Maimun was not initially recommended by the Judicial Appointments Commission (JAC) to be the Chief Justice. However, Mahathir still picked her as Chief Justice in May 2019 despite her only having been elevated to a Federal Judge five months earlier in November 2018.

Another example would be the appointment of Zaharah Ibrahim as the Chief Judge of Malaya in July 2018. At that time, the JAC didn’t even recommend anyone as that position was not vacant since the incumbent was appointed barely a year ago.

Despite Zaharah only having nine months left before mandatory retirement, Mahathir still picked her as the Chief Judge of Malaya – completely going against the JAC 2009 act and the JAC’s recommendations.

After swearing in, among Zaharah’s first act was to make the controversial switch of Najib’s SRC case judge, which resulted in Nazlan taking over the SRC case.

Surely, these are more urgent and more serious allegations that are more deserving of the attention of Selayang MP Leong as well as the former Bar presidents as the very integrity and credibility of our judicial system are at stake.

Therefore, they should focus on these concerns instead of trying to throw false allegations at Azalina or trying to blame MACC. - Mkini

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SHAHRIR ABDUL SAMAD was a former six-term MP who served as both minister and deputy minister in various ministries for 29 years.

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