SHOULD the Malaysian Anti-Corruption Commission (MACC) investigate anyone suspected of accepting money illegally, even if it is as low as several hundred ringgit? Or are there exceptions to the rule?

       That is the debate that’s raging as Datuk Mohd Nazlan Mohd Ghazali, the judge who convicted former prime minister Datuk Seri Najib Razak in the RM42mil SRC International Sdn Bhd case, finds himself in the middle of a storm.

       The judge has in turn been accused by fugitive blogger Raja Petra Kamaruddin of having a large amount of unsubstantiated funds in his account during his tenure as group general counsel and company secretary of Maybank.

       The MACC has jumped in to investigate but there are those who say it is not the right agency to do so.

       The Malaysian Bar Council, the Federal Court Chief Registrar, law lecturer Datuk Shad Saleem Faruqi and PKR president Datuk Seri Anwar Ibrahim have all cried foul over the investigations.

       They claim the investigations by MACC undermine the judiciary’s independence and the doctrine of separation of powers. It also appears to be intimidating the judiciary, they say.

       The Bar Council says the matter should come under the purview of Article 125 of the Federal Constitution, which deals with the removal of judges from the Bench.

       Why is it that those in certain positions cannot be hauled up by the authorities to be investigated if there are questions over money suspected to have been illegally acquired.

       No one is above the law and if a judge is suspected to have committed an offence, he or she should be dealt with accordingly, says S. Radhakrishnan, a retired consultant of legal firm Shearn & Delamore’s.

       However, he said, it should be done the right way.

       “When a judge is accused of committing a crime, the Chief Justice must initiate internal investigations to find out if there is basis to the allegation.

       “If the accusations are true, she will then refer the case to the Attorney General, who will look over the details and initiate charges against the judge,” said Radhakrishnan.

       What is happening now, he said, was very damaging to the judiciary.

       “What if the allegations are found to be baseless? The judiciary’s reputation would have already been tarnished,” he said.

       Radhakrishnan also asked why the question of the alleged money in Mohd Nazlan’s possession was not brought up before he was elevated to the Bench.

       “This does make things look bad,” he added.

       People’s Legal Team founder Dinesh Muthal said judges were not above the law and if they committed crimes, they should be investigated by public authorities.

       “But the problem is: the judiciary must be seen as the highest conduit for freedom and justice.

       “Being investigated by the police or MACC will not augur well for the Bench,” he said.

       Dinesh said a precedent must also not be set whereby allegations could be levelled against judges easily.

       This could open floodgates for just about anyone to accuse any judge that they are displeased with.

       Senior lawyer Nizam Bashir Abdul Kariem Bashir, meanwhile, said the MACC’s duty to investigate an offence was contained, among others, in Section 29(3) of the MACC Act 2009.

       But, he added, the MACC could only investigate Nazlan if the Chief Justice referred the case to the commission.

       “The MACC’s powers to investigate, at least in the case of a sitting judge, is one that is circumscribed by Article 125 of the Federal Constitution.

       “That power to investigate can only be exercised upon the Chief Justice making such a reference to the MACC,” said Nizam Bashir.

       Former Chief Justice Tun Abdul Hamid Mohamad, however, disagrees.

       In a letter published on a portal, he said the need to be independent did not give members of the judiciary the levy to commit crimes as well as escape investigations.

       He said Article 125 did not cover criminal offences.

       Instead, it clearly applies to situations where a judge “ought to be removed on the grounds of any breach of any provision of the code of ethics prescribed under Clause (3B) or on the grounds of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office”.

       He questioned the Bar Council’s actions, asking if it was intimidating the MACC from carrying out its investigations.

       Unfortunately, it appears that it is inevitable that Mohd Nazlan will be investigated by the MACC, at least to clear his name and reputation.

       The arguments opposing such an investigation do not hold water because the judiciary is now a mere shadow of what it was decades ago – a mysterious enclave with its members being reserved and non-accessible.

       But it has since become quite public. The incident in the mid-1990s when a prominent lawyer was seen holidaying overseas with the then Chief Justice is testimony to that.

       To the layman, the judiciary has removed itself from its previous esteemed position and is no longer as revered as it once was. The legal profession as a whole is no longer the hallowed one it was once was.

       And judges may no longer be an exception to the general rule.