Law Speak - The AG, judges and separation of powers

THE chief justice of Malaysia, Tun Arifin Zakaria, has made a rather dramatic and long overdue proposal: that the Judicial and Legal Services Commission be separated. This commission, set up by the Federal Constitution, extends to all members of the judicial and legal service. The former comprises members of the judiciary – judges and magistrates; the latter are officers in the Attorney-General’s Chambers (AGC) who fight cases on behalf of the government. The attorney-general (AG) is its head. He advises the government – the prime minister (PM), ministers, and government ministries and departments.
The commission is made up of heads of the judicial services as well as the AG. Its functions cover appointments, promotions, and transfers of members of both the judicial and legal services.
The CJ’s proposal means that the AG will not be part of a future separated Judicial Commission. This is significant. Under the present system the AG and its officers often appear before magistrates and judges who are far junior to them. A magistrate may be transferred to the AG’s Chambers. This could well affect the mind of the magistrate when deciding a case against officers from the AG’s Chambers.
Further, the AG has a very strong influence as a member of this commission. He would have a say with regard to the promotion or transfer of members of the judiciary before whom his officers routinely appear. Does this not smack of a conflict of interest? Recall that the AG and his senior officers appeared for the prosecution in the corruption case against the chief minister of Penang. Initially, before a subordinate (sessions) court judge.
The CJ was admirably forthright in pointing this out.
“In my opinion, it is unwise for the attorney-general to head the judicial and legal officers’ services. This is because the attorney-general is under the (government’s) executive branch, while the judicial officers are under the judiciary branch. If the attorney-general maintains in the present role, I’m concerned that it would create a negative perception on the freedom of the judiciary system,” said the CJ.
He reportedly said that people who disagreed with a judgment might say the magistrates were toeing the line with the AG’s Chambers (AGC) as they were effectively the same body.
“Imagine if a senior officer from the AGC or even the AG himself was prosecuting. Lagi menggeletar (they’ll be even more nervous),” he said.
The CJ has laid to rest a 1984 Supreme Court decision (Maleb v Public Prosecutor) that this fusion of the legal and judicial branches, with the AG’s pre-eminent role, did not threaten the independence of the judiciary
Critically, the AG is notionally a part of the executive – he is the chief adviser of the government. Under our constitution the executive must be separate from the judiciary (and the legislature). There are many cases where citizens challenge the action of government. Or are charged for offences such as sedition, corruption and the like. All these cases are conducted under the command of the AG.
Separation of the two – and consigning the AG to head only the legal services branch, with no jurisdiction over judges – ensures the judiciary’s independence. “The inevitable friction incident to the distribution of the governmental powers among three departments, (is) to save the people from autocracy”, as pointed out by Justice Brandeis of the US Supreme Court.
The CJ’s proposal has been justifiably hailed by the legal profession, the Bar Council and civil society organisations.
The constitution will need to be amended to effect this proposal. It is hoped that the government will support this move. Else the real hurt of such a system to public perception, the independence of the judiciary and the rule of law will continue – and damage the respect our country so richly deserves.
This is especially timely, given the wide disquiet felt with the rather abrupt replacement of the former AG. As well as the Bar Council’s pending court action against the present AG for a plethora of causes including:
» instructing the MACC to close three investigation papers that were submitted by this anti-corruption body to the AG;
» refusing MACC’s request for mutual assistance; and
» advising the PM not to personally answer questions in Parliament on moneys transferred into his personal bank account.

Gurdial is a former law professor and currently a legal consultant. Comments: letters@thesundaily.com