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.
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.