Changing of the guard: New Malaysia, new judges?

Like other modern democracies, Malaysia should consider talent from outside the ranks of the establishment in the selection of the most senior judiciary.

COMMENT

By Christopher LTW

With 11 vacancies in the highest court expected within the next year, this is an opportune moment to take stock of the role of the judiciary.

There are many who, in proffering their wisdom in the selection of candidates for elevation to the Federal Court, have restricted themselves to proposing members of the judiciary. It is respectfully suggested that the instinctive confinement of the talent pool to persons already within the system flows from an underlying assumption that the judiciary, as an institution, is exempt from the democratic demand for change mandated at the last election.

It is our respectful view that Malaysia, like other modern democracies, should consider talent from outside the ranks of the establishment in the selection of the most senior judiciary. As the new Malaysia has shown, a new outlook on an old issue may sometimes be welcome.

Our own history supports the wisdom of expanding the scope of the candidate search for the country’s top judicial posts to drive positive change. Tun Zaki Tun Azmi, a private practitioner for almost 20 years, was appointed directly to the Federal Court and then as the chief justice. Today, Tun Zaki is widely celebrated for his oft-lauded reforms to the Malaysian legal system which resolved lengthy case backlogs, done primarily by the injection of private sector efficiencies into the judiciary.

This was an experience shared by our legal system’s closest counterpart, Singapore. As Singapore’s chief justice, Yong Pung How is often credited for transforming its judiciary into an institution with a world-class reputation for efficiency, integrity and competence. It should be noted that Yong served as a banker for almost two decades before his judicial appointment.

The foundation of every modern state rests on the maintenance of law and order by the courts as the overseers of the legal system. Justice must be done, but more crucially, justice must be felt to be done by all who observe the law being administered. It is vital that the people perceive the courts as the faithful guardians of their rights, the just vindicators of their wrongs, and the undaunted champions of the oppressed against their oppressors. Judges must not be blinded by their own prejudices and must be courageous in striving for the right verdict no matter how unpopular the tried cause. Judges must not fear speaking truth to power; that is their task.

The country is faced with trying times in its political arena, the threads of which judges will no doubt be asked to inspect in coming months. When courts are presented with politically emotive litigation, the legal system must inspire the rakyat’s confidence.

Everyone agrees on the need to prevent “active injustice”, as one might call the penalising of the innocent. Equally important is the prevention of “passive injustice” – the failure to remedy an obvious wrong. Intellectual acuity, acuteness, learning and thoroughness are necessary, but not sufficient prerequisites for this task.

In the new Malaysia, moral qualities – integrity, courage and candour – have especial paramountcy. Integrity involves more than just avoiding bribes. “… there is a far more subtle integrity of the intellect which does not advance a dishonest argument or shirk awkward facts because they raise difficult problems.” There are no qualities today more important than these. Failure to institutionalise these attributes in our legal system can cause nothing but injustice and will harm the prospects of the nation in its pursuit for fresh dynamism.

Notably, these desirable attributes are not peculiar to the current members of the judiciary, but a commonality shared with all practitioners of the law. In the task of searching for the best person, there is no rational basis (possibly other than habit) for excluding the large pool of legal practitioners from consideration.

While hierarchical continuity is usually beneficial, at a time of dynamic reconsideration of the country’s institutional framework, only considering judges for elevation to the highest courts risks institutional lethargy and preservationist complacence. It inhibits the identification of institutional deficiencies, the resolution of which may bring considerable efficiencies.

In the new Malaysia, the judiciary could benefit from the infusion of private sector dynamism. Perhaps it is time for a new outlook.

Christopher LTW is an FMT reader.