Judicial service should be separated from legal service - G25

STATEMENT by G25 Malaysia on the Chief Justice’s proposal to relieve the Attorney General of administrative control over judicial officers:

The G25 commends the recent media statement by the Rt. Hon. Chief Justice regarding his proposal to relieve the Attorney General of administrative control over judicial officers (Session Court Judges, Magistrates and Registrars) and to place the judicial officers under the administrative control of the Chief Registrar of the Federal Court (The Star, Nation, Sunday, 31 July, 2016, ‘AG should not lead both services’).

We note from the media report that the Chief Justice had referred to a particular Public Services Circular, namely, Public Services Circular No. 6 of 2010 that places the judicial officers (together with legal officers) under the administrative control of the Attorney General. We support the view as expressed by the Chief Justice that the administrative arrangement under the Public Services Circular is untenable as it impinges on the independence of the judicial officers.

Indeed, we have serious doubt as to the constitutionality of the said Circular in the light of Article 138 of the Federal Constitution that provides that matters pertaining to (among others) the appointment, confirmation, promotion and discipline of judicial officers (as well as legal officers) are under the jurisdiction of the Judicial and Legal Service Commission. We note that at present, by virtue of Art. 138(2)(b) of the Federal Constitution, it is the Solicitor-General and not the Attorney General who is a member of the Judicial and Legal Service Commission (since the current Attorney General, Tan Sri Apandi Ali, is not appointed from among members of the Judicial and Legal Service).

However, in order to further enhance the independence of judicial officers, we also propose that the judicial service be separated from the legal service, so that there will now be two separate services, namely, the ‘Judicial Service’ and the ‘Legal Service’; and that judicial officers be placed under a separate service commission, instead of the current constitutional arrangement whereby under Article 138 of the Federal Constitution both the judicial officers and the legal officers (that is to say, officers of the Attorney-General’s Chambers such as DPPs, Federal Counsels and Senior Federal Counsels) are all deemed as being under one service and are inter-changeable (between the judicial department and the legal department) in terms of postings, and are all placed under a single service commission, namely, the Judicial and Legal Service Commission. We do, however, acknowledge that such a proposal requires an amendment to the Federal Constitution.

In this Statement we would like to take the opportunity to comment on the current constitutional role of the AG as spelt out by Art. 145 of the Federal Constitution. We note that, constitutionally, he is the legal adviser to the Government; he represents the Government in Court proceedings; and he drafts Government bills meant for tabling in Parliament.

Currently, Malaysia, unlike some Commonwealth countries, does not have a separate office of Public Prosecutor (or Director of Public Prosecutions). Thus, in Malaysia, the AG is also the Public Prosecutor, in that he conducts prosecutions in the Courts, and he decides whether or not a person alleged to have committed a crime ought to be prosecuted.

We wish to highlight in this Statement that today many Commonwealth countries have moved away from this practice of having the same person performing the dual role as Attorney General (AG) and Public Prosecutor; and have created a separate independent office of Public Prosecutor or Director of Public Prosecution. In these countries, the AG no longer plays any role, or an active role, in regard to prosecution. The purpose of this development is essentially to ensure the independence of the prosecutorial function from inappropriate political control, direction and influence.

The G25 proposes that Malaysia should be moving in similar direction so that there will be greater confidence in our criminal justice system. There will no longer be that suspicion or perception of political interference with regard to the AG’s prosecutorial function.

Again here, in order to create the office of the Director of Public Prosecution, the Government has to amend the Federal Constitution to redefine the functions of the Attorney General, and to establish the separate office of the Director of Public Prosecution.

We observe that currently, the AG is appointed by His Majesty the Yang Di-Pertuan Agong on the advice of the Prime Minister (see Art. 145, Clause (1) of the Federal Constitution); and he does not enjoy a security of tenure as he holds office at the pleasure of His Majesty the YDP Agong (and His Majesty acts on the advice of the Cabinet/Prime Minister). This being the case, the AG might be perceived to be beholden to the Prime Minister. Thus to ensure the independence of the AG so that he could give honest legal advice to the Government without fear or favour, we propose that the AG should be appointed by His Majesty on the advice of an independent commission.

Likewise, in order to secure the independence of the Director of Public Prosecution in the exercise of his functions, he too should be appointed by His Majesty on the advice of an independent commission.

And in order to further enhance the independence of the Attorney General and the Director of Public Prosecution, in the exercise of their respective functions, we also propose that these two top law officers should have a security of tenure in that they cannot be removed, except in accordance with the procedure as prescribed by the Federal Constitution for the removal of Federal Court Judges.

G25 would like to emphasise that appointments in the legal and judicial services and the promotion of officers to higher responsibilities must be done in the most professional manner, in line with international best practices. This is essential in order to raise the confidence of our citizens and foreign investors in the legal system, to maintain law and order, and to ensure peace and stability in the country. It is time for the judicial and legal services to use meritocracy as well as personal integrity as the qualifying criteria.