Does the public prosecutor have power over serving judges?

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Federal Court to Decide on Public Prosecutor's Power Over Serving Judges

The Federal Court has scheduled November 10 to hear an application that will determine whether the public prosecutor has the authority to initiate or conduct proceedings for an offence against serving judges. This pivotal legal question arises from a suit filed by lawyers Nur Ain Mustapa and Sreekant Pillai, alongside activist Haris Fathillah Mohamed Ibrahim, concerning the Malaysian Anti-Corruption Commission's (MACC) investigation into Court of Appeal Judge Datuk Mohd Nazlan Mohd Ghazali.
Key Legal Questions to be Addressed

Central to the application are two primary legal questions. The first inquires whether criminal investigation bodies, including the MACC, are legally restricted to investigating judges only after they have been suspended under Article 125(5) of the Federal Constitution. The second, and perhaps more contentious, question is whether the public prosecutor is empowered to institute or conduct any proceedings for an offence against serving judges, as stipulated in Article 145(3) of the Federal Constitution.
Suit Seeking Declaration of Unconstitutionality

The aforementioned lawyers and activist have initiated legal proceedings seeking a declaration that the MACC's investigation against Datuk Mohd Nazlan was unconstitutional. Their originating suit, filed on May 6, specifically requests a declaration that the MACC lacks the authority to investigate serving High Court, Court of Appeal, and Federal Court judges unless they have been suspended or dismissed according to constitutional provisions.
High Court's Role in Referring Legal Questions

The High Court, on July 19, permitted the referral of these legal questions to the Federal Court. This decision was based on the High Court's assessment that it was the appropriate forum to adjudicate legal questions that could have significant implications for the independence of the judiciary. The court acknowledged the potential impact on the separation of powers within Malaysia's governmental structure.
Context of the MACC Investigation

The legal challenge stems from reports that the MACC commenced a probe against Judge Mohd Nazlan concerning allegations of unexplained money in his bank account, following official reports lodged with the commission. The plaintiffs argue in their supporting affidavit that such an investigation constitutes a violation by the Executive branch of the judiciary's independence and the principle of separation of powers. Judge Mohd Nazlan himself had previously lodged a police report regarding news articles that alleged he was under investigation for such matters.

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Does the public prosecutor have power over serving judges?

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