A critical assessment of the racial composition of the Malaysian Judiciary in relation to the Federal Constitution and the societal and political environment of Malaysia.
If you only knew who were the Chief Judges of Malaya (which is the No. 3 top post in the Malaysian Judiciary) from 1994 onwards, you would be forgiven for thinking this position can only be assumed by a Malaysian of Malay heritage. Let’s do a roll call of them:
2008-present: Ariffin Zakaria
2007-2008: Alauddin Sheriff
2004-2006: Siti Norma Yaakob
2002-2004: Haidar Mohamed Noor
2001-2002: Ahmad Fairuz Abdul Halim
1998-2001: Wan Adnan Ismail
1994-1998: Anuar Zainal Abidin
1994: Eusoff Chin
In the last 15 years, we see that all the Chief Judges of Malaya were Malay. But if you looked further back, you will be surprised to learn that was not so. Let’s recall them from 1963 – 1994:
1992-1994 Gunn Chit Tuan
1988-1992: Hashim Yeop Sani
1984-1988: Abdul Hamid Omar
1982-1984: Salleh Abas
1979-1982: Raja Azlan Shah
1974-1979: Pajan Sarwan Singh Gill*
1973-1974: Mohamed Suffian Mohamed Hashim
1968-1973: Ong Hock Thye
1966-1968: Mohamed Azmi Mohamed
1963-1966: Syed Sheh Barakbah
Back then, we had two Malaysians of Chinese heritage and one of Indian heritage that rose to such high office. Looking at the appointments of the Chief Judges of Malaya back then, there is no discernible pattern about when they were to be appointed. This suggests that the appointments were not made according to a racial policy. It is fair to infer from this that they were appointed because of their abilities as a judge and perhaps administrator of judges. In short, it is likely that they were appointed based on merit.
Though there was a long break after Pajan Singh Gill of 13 years before Gunn Chit Tuan was appointed, if we look at the calibre of men who served between them, we can appreciate why. Three of them eventually rose to become Lord President (as the post of Chief Justice was then known as) although Tun Abdul Hamid Omar did so under the most disappointing of circumstances.
But now it has been 14 years since Gunn Chit Tuan relinquished office without any indication that the Chief Judge of Malaya’s post would be assumed by a Malaysian of an Indian or Chinese heritage.
The thinking which is palpable both in legal and judicial circles is that this will not happen again. It is also widely thought in the profession that the highest office Malaysians of Indian or Chinese heritage can succeed to is the Federal Court, or the office of Chief Judge of Sabah and Sarawak (it used to be known as the Chief Judge of Borneo; which is the no. 4 top post in the judiciary), the lowest of the four office bearing positions. But it is generally understood that the position of Chief Judge of Sabah and Sarawak would go either to a Chinese or someone from Sabah or Sarawak. The implication of this is that a Malaysian of Indian heritage is highly unlikely and regrettably unable to assume an office bearing position in the judiciary.
Worse, recent patterns of appointment to the Federal Court and Court of Appeal show that at most two or three Malaysians of Indian and/or of Chinese heritage are appointed at any one time to those courts. This is indicative of tokenism being practised in judiciary at the highest levels. How else can you explain the perpetual pattern of two or three Malaysians of Indian or Chinese heritage present with an overwhelming majority of Malaysians of Malay heritage in the the Federal Court, or a similar racial ratio in the Court of Appeal?
There is nothing in Part IX of the Federal Constitution that demands a Chief Justice, President of the Court of Appeal or the Chief Judge of Malaya must be of Malay heritage, or dictates that the racial composition of the Federal Court or even the Court of Appeal must contain a majority of citizens of Malay heritage. In fact, Article 123 of the Federal Constitution which deals with the qualifications to be a High Court Judge and above provides the following:
A person is qualified for appointment under Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal or as a judge of any of the High Courts if –
(a) he is a citizen; and
(b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.
More importantly, we have Article 8 of the Federal Constitution which provides as follows:
(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
That this persistent racial pattern at the appellate courts (a handful of non-Malays and an overwhelming majority of Malays) continues in our judiciary suggests that race is a more influential factor than abilities or merit when it comes to the appointment and promotion of a judge. Any litigator who is in the thick of litigation practise in our civil courts will acknowledge that at the level of top senior counsel, the composition is the opposite of the nation’s racial population.
Where top senior legal counsel are concerned the ratio of Malaysians of Indian heritage are highest as compared to those of Chinese heritage who come in second as compared to those of Malay heritage who have the lowest numbers. That is how I know it to be from experience and conversation. How this has happened will be dealt with at another time.
It is from this experience that I strongly feel that if the appointment of judges were decided purely on merit, we should see many more Malaysians of Indian and Chinese heritage in the Judiciary, and at its highest levels if not office bearing positions – even that of the Chief Justice, which has been occupied by a Malay since Sir JB Thomson retired in 1966.
So whilst we have the clearest endorsement in the Federal Constitution that racial and religious bias is unacceptable in law, and this must naturally mean the application of the law as well, the racial composition and pattern of appointment in the Judiciary instead parallels the Executive’s racist policies at large, symbolized by the racial ratio of appointments in the Cabinet.
Even now, in spite of being 1Malaysia, it still reflects the political composition of reflecting the racial population of the country. In the current Cabinet of 30, 6 are of Chinese heritage, 3 are from Sabah and Sarawak and 1 of Indian heritage i.e all of which amount to a third of Cabinet. The remaining two thirds are of Malay heritage.
Why should it matter whether the Chief Justice or the President of the Court of Appeal or the Chief Judge of Malaya is Malay, Chinese or Indian? If it was acceptable for a Caucasian to assume its office, it should be even more acceptable for a Malaysian of Chinese or Indian heritage to assume it. After all, they are or would be more Malaysian than he would be. Surely the criteria for positions in the administration of Justice must be based only on citizenship, abilities and integrity. Justice after all is colour blind which means the Judiciary too must be blind to race and religion.
Of course, where it concerns the Chief Justice, some may point out that his appointment is different. Unlike all the other Judges beneath him who are appointed on his recommendation, the appointment of the Chief Justice is ‘appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers’ (see section 122B of the Federal Constitution). Since they have to consult the Conference of Rulers, there is no way that the Sultans will ever appoint a Malaysian of non-Malay to the position of Chief Justice. This is a fair argument but wrong in law.
Section 122B of the Federal Constitution was considered and defined in the Court of Appeal decision of Dato’ Seri Anwar Ibrahim v PP  2 CLJ 570 (comprising of Lamin Mohd Yunus PCA, Ahmad Fairuz JCA and Mokhtar Sidin JCA), where Lamin PCA wrote that judgment made the following decision:
So in the context of art. 122B(1) of the Constitution, where the Prime Minister has advised that a person be appointed a judge and if the Conference of Rulers does not agree or withholds its views or delays the giving of its advice with or without reasons, legally the Prime Minister can insist that the appointment be proceeded with. Likewise in the case of a request from the Conference of Rulers for revocation of an appointment or an advice from it to revoke an appointment already made, the Prime Minister need not respond.
Clearly where the law is concerned, the Prime Minister legally is entitled not to give a toss what the Council of Rulers thinks or feels. He is free to appoint whom he wishes and if the Agong or even the Council of Rulers disagree, he can very politely tell them to issue more Datukships to console themselves.
So whether we have a non-Malay Chief Justice is really not up to the Council of Rules but the political will of the Prime Minister of the day. I seriously doubt that will come to pass under our 1PM’s 1Malaysia and hereby undertake to eat part of my robe if that day ever comes to pass (hey, I still need to work after that happens).
But whether we have a more equitable appointment based wholly on ability and integrity where all the other judges from the President of Court of Appeal right down to the Judicial Commissioners are concerned is now still entirely up to the Chief Justice: see Article 122AB and 122B of the Federal Constitution.
Our judiciary from the lowest to especially the highest courts cannot continue with such a racial if not racist composition. That it continues to do so suggests that the policy of judicial appointments is more concerned about being ‘politically correct’, aping racist policies of the Executive and symbolizing the blatant racial discrimination so acutely felt throughout our nation.
The Judiciary does not exist to be politically correct, or for mimicking the racist policies of the government of the day. The Judiciary is there to mete out Justice, no matter who you are and where you are from. It is not there to participate in the filth of politics. The Judiciary is meant for all citizens of Malaysia, so its judicial appointments should come from from Malaysians of any heritage, and from that we must only cull Malaysia’s finest and brightest.
Judicial appointments must be based on the noblest of human qualities – integrity, industry and intelligence.
A Judiciary cannot claim to deal out Justice if its own racial composition symbolizes and reflects inJustice on a higher, larger political level. How can an inherently unjust institution hope to even mimic Justice?
At best, it can only be a mocking caricature of what it is suppose to stand for and be.
I personally wonder whether addressing this aspect of the Judiciary will form part of the Chief Justice’s Key Performance Indicator for the year 2011, but I won’t be holding my breath on it.
There’s just too much breathing to do just yet.
*CORRECTED 11.02.2010, 11.15 a.m.