The Chief Justice and President of the Malaysian Bar have recently voiced their concern that the Judicial Service be separated from the Legal Service to ensure the Judicial Service’s independence from political interference.
The Judicial Service comprises of all adjudicators-Session judges, Registrars of the High Court and above and Magistrates.
Though they did not say so in as many words, they want the separation because the Attorney General who is also the Public Prosecutor (Attgen/PP) straddles both the services; he is head of both the judicial and legal services.
They want the Judicial Service to be headed by a judicial officer, the Chief Registrar.
The Attgen/PP should not be the head of the judicial service because particularly in criminal cases the Deputy Public Prosecutor (DPP) who conducts the prosecution is the subordinate of the PP.
As head of the Judicial and Legal Service, the Attgen/PP may one day be the boss of the Magistrate and a disappointed Attgen/PP may punish a Magistrate for his assertiveness in matters of justice. All that is needed is the simple expedient of transferring a judicial officer to the legal service.
This issue is a long-felt grievance of Judicial officers, and it came to a head in the cases of Cheak Yok Thong and Malek bin Su v PP .In that case, defence counsel challenged the Magistrate’s independence; he would not make a decision or even give a ruling in favour of the accused even where he properly should for fear of the day when he is transferred to the Attgen’s chambers where the Public Prosecutor/AttGen woIn fact the uld be his boss! The Magistrate acknowledged this to be correct and disqualified himself because the structure of the JLS made this possible.
As if this is not bad enough, the Attgen/PP is also a member of the JLS Commission. The JLS Commission which is headed by senior judges is the disciplinary body of the JL service and is in a position to influence the careers of JL officers; the Attgen may submit a confidential report about a judicial officer to the other members of the Commission, of which the officer is not told and will have no opportunity to be heard even if it’s about him.
When the matter was heard by the then Federal Court, it was aware of this unsatisfactory state of affairs, and instead of suggesting some measures by which the situation may be ameliorated for the unfortunate Magistrate, the Federal Court resorted to the extreme Doctrine of Necessity for continuing with the situation even when the structure was so starkly biased.
The reforms which are imperative should see the Attgen separated from PP and he cease to be head of the Prosecution Service which should be headed by the PP. The Solicitor General should be head of the Legal Service. The Attgen should also cease to be a member of the JLS Commission. Instead the Attgen should be a member of the House so that he could be made accountable politically for the JLS and prosecution.
The solicitor-general, the PP and the Chief Registrar should be appointed by the JLS Commission and be removable by them only.
And why is the Attgen/PP seen as such an ogre rather than only a fly in the ointment? This is because the Umno govt has since Independence been shaping the office of Attgen /PP to achieve obedience of its will rather than justice. Just 3 years after Independence, Umno removed the protection enjoyed by the Attgen/PP. He was was well-protected from political interference by making him irremovable from office except in the same manner as a judge of the high Court and above except by a tribunal of an odd number of senior judges from Malaysia and the Commonwealth, and only with the concurrence of the Yang di-Pertuan Agong.
Most importantly, he now served under contract and he could be dismissed by the Prime Minister.
However his powers as an Attgen/PP remained strong against the people; but weak against the PM.
In fact Dr Mahathir enhanced the power of the PP. He amended the Criminal procedure Code to give the Attgen/PP power to certify which level of court could hear a criminal case, and when it was successfully challenged on the grounds that it infringed Judicial Power, he had the Constitution amended to remove Judicial Power from the court. Dr. Mahathir had clearly intended to show Malaysians how much he valued an Attgen/PP who could do his bidding.
The power of the AttGen/PP which had been weakened in 1960 so that from quasi-judicial it became political, he remained dormant and non-threatening during the Prime Ministerships of Tunku Abdul Rahman, Tun Abdul Razak and Tun Hussein Onn.
It was during PM Dr Mahathir’s term of office that Malaysians saw what was lost when the Att-gen/PP’s protection was removed. The new model Attgen/PP played a starring role in the UEM case; the dismissal of Tun Salleh Abas and other Supreme Court judges; the prosecution of Anwar Ibrahim and the persecution of Irene Fernandez; and after that under PM Najib, the murder of Altantunya by policemen and the escape of the convicted murderers, and the death under questioning of Teoh Beng Huat and the denials of the disappearance of 1MDB funds; and to crown it all, poetic justice was achieved when the Attgen /PP was himself summarily dismissed!
With so much to Umno’s credit under the civil law, who needs hudud?
* The Writer is Advocate and Solicitor and Retired law teacher AIKOL IIUM.