Judicial diversity creates confidence


Comment By Roger Tan

Judicial diversity and meritocracy should go hand in hand. A judiciary that does not reflect society’s diversity will ultimately lose the confidence of that society

ENGLAND’S senior judiciary has often been described as “pale, male and stale” – that is a white, male-dominated bench.

This is understandable because despite many calls over the years for more diversity in judicial appointments, women and ethnic minorities are still sorely under-represented in the highest echelons of England’s judiciary.

Today, Lady Brenda Hale still remains the sole woman justice out of 12 places in the highest court of the United Kingdom, now known as the Supreme Court. First appointed to the House of Lords as a Lord of Appeal in Ordinary (Law Lord) on Jan 12, 2004, she was reappointed to the new Supreme Court when it replaced the House of Lords in 2009.

In October this year, Rabinder Singh became the first Sikh, a non-white, to be appointed a High Court judge of England and Wales. There is no law lord from an ethnic minority. This year two more white men, Jonathan Sumption, QC and Lord Justice Wilson, were appointed to the Supreme Court.

Holding court: Former Chief Justice Tan Sri Zaki Azmi (front row, second from left) chairing a meeting of judges from Kuala Lumpur and Shah Alam. The Judicial Appointments Commission should always encourage a diverse judiciary which is more representative of the make-up of our country. — Bernama

The President of the Supreme Court, Lord Phillips, did remark recently that he would like the Supreme Court to be 50/50 men and women from the point of perception, but he stressed that it was more important to consider judicial selections based on merit.

Lord Hope, the Deputy President, was more hopeful, however. “It’s a great mistake to rush it forward and say that diversity must prevail over merit. The system depends on skilled people who can actually do the job and we can’t afford to have passengers here, just in the name of diversity,” he said.

But is this insistence on merit reasonable when actually it is a non-issue? Or is it simply an excuse not to effect judicial diversity speedily? If so, then perhaps the very definition of what is merit should be re-examined.

In fact, leading the call for more women and ethnic minority judges in the courts is none other than Hale herself. She said she was rather tired of being repeatedly told that change was “a matter of time”, but change never came.

Recently, Hale told the House of Lords constitution committee that “the lack of diversity on the bench is a constitutional issue”.

On Nov 3, the Guardian newspaper reported Hale as arguing before the committee that judges would approach issues differently based on their background, and that a lack of diversity could also change the substantive results of cases (“Resistance to diversity among judges is misguided”).

She added that in “disputed points you need a diversity of perspectives and life experiences to get the possible results”, particularly how the gender of justices would matter in cases such as child-birth and rape.

In fact, this argument that diversity enriches judicial decision-making and that the outcome of a case is often influenced by a judge’s background is not new.

In 1981, Professor J.A. Griffiths wrote in The Politics of Judiciary that English judges were neither entirely objective nor neutral in their decisions because their decisions often reflected their own political outlook and attitude.

For Malaysia, the above issues are even more relevant as ours is a multi-racial, multi-religious and polyglot society.

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

Further, the members of our Judicial Appointments Commission comprise six Malays, one Chinese, one Indian and one east Malaysia bumiputra, and 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.

Currently, in respect of Sessions Court judges, there are 119 Malays (56 are women), two Chinese (women), five Indians (three are women), nine east Malaysia bumiputras (four are women) and one Others (a woman).

For Magistrates, there are 139 Malays (84 are women), two Chinese (men), one Indian (woman) and 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.

The writer is a senior lawyer and a former member of the Malaysian Bar Council.

Winning over the majority of the Malay Muslim psyches and votes!


P36: Kubang Ikan, Kuala Terengganu. Anwar Ibra...

All eyes on the Malay votes

On The Beat By Wong Chun Wai

Of the 222 parliamentary seats, only 46 are Chinese majority. So winning the hearts and minds of Malay voters has become the focus of the competing Malay-based parties.

WHEN Tan Sri Muhyiddin Yassin announced that the government had decided to scrap the PPSMI (teaching of Maths and Science in English policy) in primary schools, there was loud outrage from the urbanites.

This unhappiness has continued with most urban voters refusing to accept the reasons given by the Education Minister, believing instead that politics is the reason behind the decision.

There were subtle threats of punishing the Barisan Nasional government in the polls but PAS and PKR, both Malay-based parties, also quickly stated their stand against continuing the policy.

A Malay non-governmental organisation, Jaringan Melayu Malaysia (JMM), had revealed that its survey of 27,200 parents, mostly Malays, found 55% wanted the PPSMI to be retained compared to only 13% who didn’t. Of these respondents, 15,000 were rural parents. But Malay groups, and certainly Malay-based parties, had found their own surveys telling them the opposite.

With a general election looming, winning the hearts and minds of the predominantly Malay voters has become the focus of the competing Malay-based parties.

The fact is that of the 222 parliamentary seats, only 46 are Chinese majority and there is not even a single constituency with an Indian majority.

The three main parties, Umno, PAS and PKR, have all stepped up their posturing as defenders of the Malay/Muslim votes, well aware that while they need the support of the other communities, they cannot ignore the sentiments of the Malay voters.

So when DAP publicity chief Tony Pua said that if Pakatan Rakyat formed the next federal government, it would trim down the civil service – majority of whom are Malays – his allies had to scramble to do damage control.

Datuk Seri Anwar Ibrahim and senior PAS leaders had to quickly douse the fire, denying that there was such a plan.

The opposition leaders have been on tenterhooks since the fiasco by PAS deputy president Mohamed Sabu, who allegedly described communist guerrillas involved in the 1950s Bukit Kepong incident as freedom fighters.

With many Malay families having at least one relative in the police, army or other uniformed unit, Mat Sabu’s remarks cost the Pakatan Rakyat a huge chunk of votes. Since then, the usually fiery speaker has remained quiet, and PAS is hoping that the anger against him will soon die out.

The Islamist party has also abandoned its attempt to project a more liberal image and has gone back to talking about hudud laws and the Islamic state and banning concerts to retain its core supporters.

As for Anwar, on the one hand, he is telling his Chinese audience that hudud laws are not part of Pakatan’s policy. On the other, he is telling the Malay audience that he backs the implementation of hudud laws, putting the DAP in a spot as PAS has said it couldn’t care less if the DAP agrees or not.

The DAP seems to be helpless over the issue with its leaders saying they have “agreed to disagree” over the implementation of hudud laws. PAS claims it would not affect non-Malays but this is a fallacy because it will extend beyond family and religious laws.

In criminal matters, when a case involves a Muslim and a non-Muslim, if hudud is chosen, it will clearly put the latter in a spot. One example is sex offences where four witnesses are required.

Only DAP lawyer Karpal Singh seems to acknowledge the difficult path ahead.

The fight over Malay votes has continued with DAP’s Lim Guan Eng coming out to say that if Pakatan wins, Anwar will be the prime minister. It is a move to allay fear among non-Muslim voters as PAS is eyeing the post.

There has been muted response from PAS as it is an open secret that its president Datuk Seri Abdul Hadi Awang wants to be PM.

Lim has insisted that Anwar would be PM “even if he is in jail (if convicted for sodomy charges)”, but the point is, if Anwar is going to be PM, then he wouldn’t be in jail.

Most non-Muslims wouldn’t blink over the Seksualiti Merdeka issue as they are aware that the event is not a gay orgy as claimed by some media.

Many of us find the hysterical reaction to be lacking compassion and even ridiculous, but this is the silly season. It was a case of wrong timing and political naivete on the part of the organisers. After all, the event has been held for the past two years without any controversy.

But human rights lawyer Datuk Ambiga Sreenevasan, who was invited to open the forum, is seen as an opposition figure, and with Anwar’s sodomy trial coming to a conclusion soon, the timing could not have been worse.

Well aware of the Muslim psyche and sentiments, PAS swiftly joined in to criticise the gay rights event.

The much-touted 11.11.11 date, which many thought would see the dissolution of Parliament, is over and with Datuk Seri Najib Tun Razak himself saying that polls would not be held this year, the run-up campaign looks set to be a draggy affair.

Even now, the posturing, rhetoric, accusations and lies are becoming tiresome, and the polls could still be very far away, possibly in mid-2012.

‘Hudud can create tension’

By Ruben Sario
The Star/Asia News Network
KOTA KINABALU – An umbrella grouping of Chinese organisations in Malaysia has lashed out at PAS over its hudud proposal, saying such laws could lead to tension and miscarriage of justice.

Federation of Chinese Association of Malaysia (Hua Zong) president Tan Sri Pheng Yin Huah said though hudud would be enforced among Muslims, difficulties could surface in multi-cultural, multi-religious and multi-ethnic Malaysia.

If hudud were to be enforced, the question of which court has jurisdiction to hear cases would arise, he said.

“For example, if the accused is a Muslim, the case would be heard in the syariah criminal court.

“In that event, non-Muslim witnesses to the crime would not be allowed to testify.

“And, if the case is to be heard in the normal criminal courts, the accused can challenge the move, with the excuse that religion is supreme above everything else,” Pheng said at a dinner to mark the 28th national Chinese cultural festival at the Likas Sports Complex here yesterday.

Also present were Sabah Deputy Chief Minister Datuk Dr Yee Moh Chai and Health Minister Datuk Seri Liow Tiong Lai.

“We in Hua Zong firmly believe that the existing criminal administrative system, in accordance with the Federal Constitution that takes into account the interests of all communities, must be maintained,” said Pheng.

In this respect, he said, Hua Zong was relieved that Prime Minister Datuk Seri Najib Tun Razak had said the Government has no intention to implement hudud laws.

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