He says the Legal Service Commission and Judicial Service Commission could have separate heads.
He said Chief Justice Arifin Zakaria’s proposal would eliminate the appearance of bias, strengthen the independence of judicial officers, and promote public confidence in the judiciary.
However, he said Arifin’s proposal would require amendments to Article 138 of the Federal Constitution.
“The Bar stands ready to offer any legal assistance 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,” he said in a statement.
He said this in response to Arifin’s announcement last week that the cabinet had approved the proposal made last July to have a separate head for each branch of the commission.
The commission now consists of the chairman of the Public Service Commission — who sits as chairman — with several judges and the attorney-general (AG).
The commission exercises jurisdiction 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, 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.
George 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,” he said.
Arifin’s proposal is for legal officers to be headed by the AG, 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 AG appears 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,” George added.
He said a 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 (including the magistrates and Sessions Court judges) are distinct from judges of the superior courts (the Federal Court, the Court of Appeal and the High Court), as they do not enjoy security of tenure.
They are also subject to the same terms of employment as civil servants, even though they perform the same functions as judges of the superior courts.
George said judicial officers were 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.