Judicial Diversity Creates Confidence

by

Roger Tan

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How does Malaysia fare with judicial diversity?

Is ours a more representative bench?



The table shows the racial composition and gender of the judges in our superior courts.

As the table shows, there is a fair number of women and non-Malay judges at the High Court level, but not in the appellate courts.

In fact, since Merdeka, only one white, two Chinese, one Indian and one woman were appointed to head the High Court of Malaya.

They were, respectively,

1. Tun James Beveridge Thomson (1957-1963);
   
2. Tan Sri Ong Hock Thye (1968-1973) and Tan Sri Gunn Chit Tuan (1992-1994);
   
3. Tan Sri Sarwan Singh Gill (1974-1979); and
   
4. Tan Sri Siti Norma Yaakob (2004-2006).

JUDICIAL APPOINTMENTS COMMISSION

Further, the members of our Judicial Appointments Commission comprise:

1. six Malays,
   
2. one Chinese,
   
3. one Indian and
   
4. one east Malaysia bumiputra, and
   
5. only one of the nine members is a woman.

To my mind, the situation could be due to a dearth of non-Malays in the Judicial and Legal Services, but overall women still outnumber men in this sector.

SESSIONS COURT

Currently, in respect of Sessions Court judges, there are:

1. 119 Malays (56 are women),
   
2. two Chinese (women),
   
3. five Indians (three are women),
   
4. nine east Malaysia bumiputras (four are women) and
   
5. one Others (a woman).
   

MAGISTRATES COURT

For Magistrates, there are:

1. 139 Malays (84 are women),
   
2. two Chinese (men),
   
3. one Indian (woman) and
   
4. four east Malaysia bumiputras (all men).

However, there are probably MORE non-Malays serving in the Attorney General’s Chambers.

But if other judicial officers such as deputy and assistant registrars are added, women would almost double men.

This is not a new phenomenon as, in the last two years, women have doubled the number of men entering the legal profession.Of course, non-Malay law graduates prefer to enter the legal profession rather than join the Judicial and Legal Services with the view, whether rightly or wrongly, that private practice is more lucrative.

In fact, with the revised remuneration scheme, the current basic pay of a magistrate who is a fresh law graduate is RM1989.45 (with additional perks worth about RM1,000 depending on the location where the magistrate serves).

This, of course, is far better off than his predecessor in earlier days, like in the early 1980s when a magistrate’s basic pay was only about RM1,050.

In any event, if the reason for under-representation in the appellate judiciary by NON-MALAYS is due to a lack of meritorious candidates in the Judicial and Legal Services, then resort should be had to the pool of meritorious candidates among senior members of the Bar just like in the case of Jonathan Sumption, QC who recently made history by being the first lawyer to be elevated directly to the Supreme Court of the United Kingdom.

Having said that, let no one mistake me as advocating a quota system or positive discrimination on the grounds of gender, race and religion in judicial appointments because that would go against Article 8(2) of the Federal Constitution.

I am also mindful of the views expressed by some women judges themselves, such as the former justice of the Supreme Court of Canada, Justice Claire L’Heureux-Dubé. She argued that it was not enough to have simply more women or minorities on the bench. “What we need”, as she was quoted by Australian judge, Justice McHugh, “is a change in attitudes, not simply a change in chromosomes.”

I disagree.

If there exists a total absence or a huge disproportionate presence of women and minorities at appellate courts, something must be wrong somewhere.

It is my considered opinion that the Judicial Appointments Commission should always encourage a diverse judiciary which is more representative of the make-up of our country.

We must also correct any perception that our judges, who are the arbiters of civil laws, are not fair and independent especially when they adjudicate upon sensitive issues such as race and religion.

It follows that who we appoint to the seat of justice is a matter of life and death.

As one of America’s finest trial lawyers, Gerry Spence, put it so trenchantly:

“Who are these judges who wield such power over us, a power reserved for God?

Who are these mere humans with the power to wrest children from their mothers and to condemn men to death or cage them like beasts in penitentiaries? Who possesses the power to strip us of our professions, our possessions, our very lives?

“They make law. They may take away your wife or your good name or your freedom or your fortune or your life. They are omnipotent.

And the question is: To whom have we so carelessly granted that power? Are they the kind who would understand you, who from their experiences would know something of the fears and struggles you have faced? Will they care about you or about justice?”

It is, therefore, my honest view that judicial diversity and meritocracy should go hand in hand because a judiciary which does not reflect the society’s diversity will ultimately lose the confidence of that society.

In other words, the strength of any judiciary is primarily dependent on public confidence even if seated on the bench are monolithic judges who are most meritorious.

This is achievable if there is the political will, and one only need to look at how successfully Presidents Bill Clinton and Barack Obama did in bringing diversity to the American judiciary.