PETALING JAYA: The attorney-general (AG) supports the idea of having two separate heads in the Judicial and Legal Services to erase the perception that subordinate court judges are not independent, according to a source.
The source said Tommy Thomas was amenable to the chief registrar of the Federal Court heading the judicial service while the AG heads the legal service.
“We (the court) have referred the matter, and he is supportive of having separate divisions,” the source told FMT.
It added that the plan for separate heads was not implemented before as the two previous AGs had not been keen on it.
“The new AG’s support will enhance the rule of law and the independence of the judiciary as the majority of people go to the lower courts to seek justice,” it said.
FMT understands that from 1957 up until eight years ago, it had been made clear that the AG was not the head of the service.
A 1984 Federal Court judgment in the case of Cheak Yoke Tong v Public Prosecutor had in fact held that the AG could not lead the service.
However, a circular from the Public Service Department in 2010 stated that the AG is the head of the service.
“This misleading circular was issued without consultation with the judiciary,” the source said, adding that the judiciary wanted a return to the status quo before the circular came into force.
In general, judicial officers comprise magistrates, Sessions Court judges, senior assistant registrars, deputy registrars and the chief registrar.
Legal officers, on the other hand, comprise deputy public prosecutors; state legal advisers; legal advisers to the ministries, government departments and its agencies; the solicitor-general; treasury solicitors; federal counsel; and senior federal counsel.
The promotion and discipline of members in the service is governed by the Judicial and Legal Service Commission whose chairman is the Public Service Commission chief.
The AG is a member of the commission while the Yang di-Pertuan Agong appoints judges after consultation with the chief justice of Malaysia.
There are currently six judges in the commission.
The source said it would be better to have two separate commissions to govern those employed in the service.
“However, this can only be done by amending the Federal Constitution, and the ruling Pakatan Harapan (PH) does not have the two-thirds majority in Parliament,” it added.
The Malaysian Bar in the past said there was a tendency for judicial officers to be transferred to the legal department, and likewise for legal officers to be transferred to the judiciary.
“This susceptibility of judicial and legal officers to be transferred from one department to the other raises concerns about the independence and impartiality of judicial officers who are part of the judiciary,” Bar president George Varughese had said.
He said a conflict of interest occurred whenever a prosecutor or the AG appeared before a judicial officer.
“Since the AG is also the public prosecutor and has supervision and control over judicial officers of the subordinate courts, there could be a likelihood of bias in the decision-making of the judicial officers,” Varughese added.
He said a judicial officer may be of lower rank than the prosecutor and might feel apprehensive about delivering a judgment that is not favourable to the prosecution.
Sessions Court judges and magistrates are subject to the same terms of employment as civil servants, even though they perform the same functions as judges of the superior courts.
Varughese said judicial officers were in a less secure position of employment, and their independence could be affected by their perception that their decisions may place their employment in jeopardy.