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The Sunday Star
Roger Tan
 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
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 not so 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 former Australian
High Court judge, Justice Michael 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.
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