PETALING JAYA: The legal fraternity applauded the Chief Justice’s proposal for greater separation between judicial and legal services, calling it long overdue.
Former Court of Appeals Justice Mah Weng Kwai (pic) said the proposal finally presented a clear demarcation between the judicial and legal services.
“It has been a combined service for the longest time, since before I joined the service in 1973,” said Mah, who started his career as a magistrate before becoming a deputy public prosecutor and then senior federal counsel.
Responding to the Chief Justice’s suggestion that officers would still be allowed to be transferred between the services, Mah said it should be taken one step further with both services completely independent and non-transferable.
Former magistrate Akbardin Abdul Kader said, if implemented, the move would ensure former DPPs were not biased when they were elevated to the bench.
“Hence, they will remain as DPPs until they retire and so the same for judicial officers,” he said.
Malaysian Bar president Steven Thiru said the Chief Justice’s concerns were valid and deserved due consideration.
He said the fact the Attorney-General was a member of the commission could open the judiciary to questions in any decision in favour of the prosecution.
He noted that the proposal would appear to require a constitutional amendment that would place Sessions Court judges and magistrates under the sole jurisdiction of the judiciary, and no longer under the Commission.
“This strengthens the concept of separation of powers that vests judicial power in the judiciary and requires the exercise of those powers without any influence by the other arms of Government,” he said, adding that the removal of any conflict of interest would inspire more confidence in the decisions of Sessions Court judges and magistrates.
Former Malaysian Bar president Yeo Yang Poh said the Bar had called for the change for decades, adding that from time to time, a Chief Justice of the day would “warm up” to the idea.
In 2006, when Yeo was serving as president, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim made a similar call for a separation of the judiciary from the commission.
Yeo added that it was the first time he had heard of a proposal being handed to the commission by the Chief Registrar.
He said having the judicial and legal services combined was not desirable for two reasons: in practical terms, not every one could be fearless; while in theory, even if all legal officers could overcome the pressure, there would still be the perception of impartiality.
“You can’t blame an observer that perceives something is not quite right. A judge could say they would remain impartial even if judging their father; but does it look right?” he asked.
A former officer from the Judicial And Legal Services, who declined to be named, said the risk of transfers were a common reality.
“We used to threaten judges up to the Sessions Court (level), if they misbehave, we will get them transferred as DPPs. A few of them were actually transferred,” he said.
He said though the “threats” were in jest, it shocked him that they were sometimes really carried out, adding that not all moves were sinister, as it was occasionally meant as a lesson for subordinate courts which had made errant judgments.
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