Friday, March 24, 2017

Strengthen the independence of the judiciary

George Varughese     Published     Updated
The Malaysian Bar welcomes the news that the cabinet has approved the proposal by the Chief Justice of the Federal Court of Malaysia, Yang Amat Arif Arifin Zakaria, to have a separate head for each branch of the Judicial and Legal Service Commission (JLS Commission).

The JLS Commission consists of the chairperson of the Public Services Commission - who sits as chairperson - with several judges and the attorney-general.

The JLS Commission exercises jurisdiction, and consequently control, over legal officers as well as judicial officers in all matters governing their service, promotion, discipline and transfer, including their removal from office.

Judicial officers comprise, in general, magistrates, senior assistant registrars, deputy registrars, Sessions Court judges, 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.

There is 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 being transferred from one department to the other raises concerns about the independence and impartiality of judicial officers who are part of the judiciary.

Arifin’s proposal is for legal officers to be headed by the attorney-general, as they currently are, and for judicial officers to be headed by the chief registrar of the Federal Court.

As Arifin rightly pointed out, a conflict of interest occurs whenever a prosecutor or the attorney-general appears before a judicial officer. Since the attorney-general 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.

Furthermore, the judicial officer may be of a lower rank than the prosecutor, and may thus feel some apprehension at delivering a judgment that is not favourable to the prosecution. A judicial officer’s independence may, in this manner, be compromised or be seen to be compromised.

Judicial officers are distinct from judges of the Superior Courts (ie the Federal Court, the Court of Appeal and the High Court), in that they do not enjoy security of tenure, but are subject to same terms of employment as public service officers, even though they perform the same functions as judges of the Superior Courts.

Judicial officers are thus in a less secure position of employment, and their independence may be affected by their perception that their decisions may place their employment in jeopardy.

Arifin’s proposal would eliminate the prospect or appearance of bias, strengthen the independence of judicial officers, and promote public confidence in the judiciary.

Arifin’s proposal would require amendments to Article 138 of the Federal Constitution. The Malaysian Bar stands ready to offer any legal assistance in this matter, in the belief that the adoption of the proposal is necessary to uphold the independence of the judiciary and the doctrine of separation of powers.

GEORGE VARUGHESE is president, Malaysian Bar.

No comments: