00:00Hi, welcome back to Consider This. I'm Melissa Idris. Let's continue our discussion about the
00:15prospect of an unprecedented vacuum in the leadership of the judiciary. This as two of
00:21the most senior judges in Malaysia, the Chief Justice and the President of the Court of Appeal,
00:26both are stepping down within days of each other. And as at the time of this recording,
00:32there has still yet to be no formal indication of who will succeed them. So joining me on the
00:38show now to discuss this further is constitutional lawyer, Dato' Malik Imtiaz Sarwa. Dato' Imtiaz,
00:44thank you so much for being on the show with me today. We're looking at vacancies of the top two
00:47judicial posts, no official succession plan as yet. What are your concerns about the fact that
00:54we still have not heard about who might be succeeding this post? Are there concerns that
00:58could arise from such a leadership vacuum? Yeah, so well, I think it sends a very
01:06troubling message to the public. And you know, the judiciary as an institution is only as effective
01:16as public confidence in that institution. So people have to believe that the decisions of the court are
01:22being made in a way that the law requires and so on and so forth. And for that reason, the courts have
01:27always been very vigilant about public confidence. So you'd have read their decisions on contempt,
01:34hearings where the court keeps on stressing that nothing can be allowed to bring the court into
01:40disrepute or into some situation where people might might start to wonder about the quality of justice
01:46that's being meted out. So when there's a leadership vacuum, the obvious question is why? And one would
01:53have thought that the succession issues would have been dealt with well in advance. That approach would
01:59have allowed for transitioning within the judiciary. And I think that transition process is very,
02:04very important because you've got an outgoing chief and after retirement, and I'm assuming she's not
02:10extended. After she retires, Tengku Maimun will no longer be a judge and will no longer therefore be in
02:16a position to be able to sort of offer guidance and necessary transition advice. You know, in the usual
02:24course, in any situation, when you have like, say, a CEO leaving a company, you would have a discussion
02:32as far as possible between that CEO and the incoming CEO. And so that sort of discussion is not going to
02:38happen. A valuable experience therefore may not be shared. So that's one one big aspect. I mean, the
02:45other aspect is that, as I said earlier, the question also is why is it that that there has been no
02:52successes identified any earlier? And again, the impression, I'm going back to impression, and that
02:59in this case is driven by the fact that, you know, we don't have much information being shared either by the
03:04government and the JAC is not in a position to share any information. So we don't know what exactly is going
03:10on. And when there is that kind of space, people tend to fill it with speculation, conjecture, some of which
03:16may not be entirely positive, and that then boomerangs against the institution, as well as the judges. So at the end of
03:25this, if certain judges are appointed as successors, the situation may be such that questions will arise.
03:31Why were these people appointed as opposed to X? And that's not their fault necessarily, but because the
03:38way in which the process has been handled, and given that vacuum and the speculation, etc., it may come to
03:46that, and that's not necessarily conducive either. Could I ask you about that? What are the risks,
03:54both institutionally and maybe even in terms of morale, if any individual is seen to leapfrog more
04:02senior judges in the hierarchy to the top two positions? I mean, I'm just wondering how that might
04:08not just impact perceptions of meritocracy, but also perceptions, have you said, of
04:12integrity, institutional integrity? Well, I think you've said it. Essentially, if there is a leapfrog,
04:19unless there is obvious reason for that leapfrog, and I mean, to be fair, I'm sure the judges will
04:25appreciate the right candidate going up, even if it means leapfrog, and seniority doesn't in itself
04:32define that process, although it is relevant. If there is leapfrogging and there's no obvious
04:38justification for it, questions will be asked internally as well as externally. So internally,
04:43then you've mentioned morale. I think that's a very big question here. You know, we've had a very
04:50good run from 2018 with Tun Melanjum first, who set the foundation for what many are calling the
04:57judicial reform, and then with Tengku Maimun coming in and entrenching certain principles that the
05:05Melanjum court had put into play. It's only done, I think, very good things for the for the judiciary
05:12and the reputation of this country. And I must stress here that, you know, in as much as the chief,
05:18Tengku Maimun is the chief, decisions of the court are not hers alone. So that I've been hearing a
05:23tendency to say, well, that's a Tengku Maimun decision. Well, you know, like some of these so-called
05:28controversial Islamic conflicts issues, the decisions have been decisions of the court.
05:34In some instances, as many as nine judges have agreed on the issues. So you can't say that's
05:41a Tengku Maimun decision. That's a federal court decision, where the court unanimously decided or
05:48by an overwhelming majority had decided X or Y. So to be fair to Tengku Maimun, then one should actually
05:53be asking who else was on that on that panel. And in these Islamic cases, you've had a spectrum of
05:59judges on the federal court, some of whom we would call conservative judges, who agreed with the
06:05approach taken on the constitutional points. So the public confidence question is, I think, extremely
06:12important. And the subjectivity that is now being introduced into the process, perhaps unwittingly,
06:19is not at all conducive to any notion of the rule of law. It does not matter that a person sits as a
06:27judge at whatever level, if people aren't confident in the abilities of that person to do the right
06:34thing. And this is not meant to denigrate any particular person. That is the nature of public
06:40confidence. So the government, and in particular, the prime minister, you'll remember the notorious
06:46VK Lingam affair. And what resulted from that was the Judicial Appointments Commission Act,
06:55and the establishment of a formal appointments process that would take away from the somewhat
07:01subjective way in which things were being done before, a process which is open to some element of
07:07manipulation. So, you know, after all of that, if you have a situation where this sort of subjectivity
07:17is introduced, then it could be said that perhaps the whole system is not working as it should.
07:24Well, you alluded to the fact, or you touched on the fact that the JAC, the Judicial Appointments
07:30Commission is opaque by its nature, right? You don't know what happens behind it. But recently,
07:36there's been some reports of speculation, rumours, if I may use that, that there were concerns that the
07:41JAC had with a member of the bench about undue influence, about possible interference in judicial
07:47affairs. Now, I know we can't speak to specifics, but what do you think can be done now in this moment
07:53where there is an institutional transition, where there is maybe I would even call a crisis of public
07:59confidence. What do we need to do to restore or maybe safeguard what confidence is left of the
08:05judiciary, in the judiciary? So, I think there are two points there. One is, I think, on the immediate
08:10situation, I think the government, and in particular, the Prime Minister owes it to Malaysians to explain
08:16what's going on. And I say this because the JAC Act itself charges the PM specifically with defending
08:24judicial independence. And judicial independence necessarily means public confidence. So, I think
08:29the Prime Minister, therefore, owes an explanation to Malaysians to sort of calm the waters, as it were,
08:36on what's happening as to why it is that some judges got extensions and others didn't. The speculation is
08:44that that may have something to do with the JAC composition, one wonders, and other things. For example,
08:52why it is that it's taken so long to identify successes. Why is it that there was no transition
08:57process allowed for? These are important questions moving forward if the government wants to project
09:04to the world at large that Malaysia is a system based on the rule of law. Instead, however, with all due
09:13respect, the Prime Minister has sort of focused on deflecting these questions by saying that people are
09:19attempting to politicise the process and so on. I mean, respectfully, I don't think that's the most
09:24constructive way to deal with it. Whatever the reasons, and there may be good reasons for it,
09:29I don't think we should be left to wonder. And to be fair to the judges themselves, as well as the
09:34outgoing judges, this explanation is critical. It's fundamental to the integrity of the system.
09:42All right. Well, speaking about the outgoing judges, can we talk a little bit about the Chief Justice,
09:48Tintin Koo Baimun? She has been described as such a powerhouse, and I'm just curious to know what you
09:54think, what is your impression of her? How would you describe her legacy, her imprint, the imprint that
09:59her leadership has left on the institution? Yeah, so I was admitted to Barr in 1994. And I can say in all
10:07that period of time, in my experience with the court, she's the best Chief Justice we've ever had.
10:13And I don't think I'm overstating it by saying that. And it's not necessarily because all her
10:18decisions were absolutely correct and not open to some comment or constructive criticism. But on
10:28certain fundamental things, she's hit all the right notes in a way that I think we had all been yearning
10:34for as Malaysians. Because what is, I think, the legacy she leaves behind is that the federal court and
10:40the other superior courts of this country are independent, judicial power is sacrosanct, it is
10:47not an agent or tool of the executive, and it stands as the bulwark of freedoms and civil liberties
10:56between the state and the citizen. And what Tengku Maimun has done with the court, and again,
11:02I must stress the decisions are not hers alone, but she has on these very, very difficult issues
11:08united the court, or an overwhelming number of the judges of the court, into crafting and refining
11:16a constitutional basis that is unique to Malaysia, where the rule of law, judicial review, and the
11:22doctrine of check and balance is concerned. And for that, I don't know how it is that Malaysia could
11:28actually repay her for what she's done. Of course, if you asked her, she'd say there's nothing to repay,
11:33because that was her duty. And that's what makes her, I think, exceptional. And I think what's made her
11:38exceptional is also the fact that apart from being a woman, which I think was great, and I think we
11:44needed a woman chief justice for various reasons. But apart from that, she transcended cultural and racial
11:55matters in a way that, again, as I say, was inspiring, because during her time, the federal court, in an
12:02overwhelming number of decisions, has looked at the law in an agnostic way. This is not personal religion, but
12:10the law itself, the constitution itself, is not coloured by matters of these things. You look at it
12:17as the supreme law, construed in the way that it was meant to, and fundamentally allow the law to lead
12:24you to outcomes, as opposed to shaping the law to suit outcomes. And I think that is something that she
12:32has left many a young lawyer inspired by. And I'm hoping that, you know, for this generation of young
12:40lawyers, this serves as a yardstick by which future efforts can be measured. And if the court were to
12:48continue on the trajectory that she set, again, with Thun Melanjom, then I think we can see
12:56the possibility of a lot more things happening. But again, having said that, she's also been very,
13:02the court has also been very careful in not transcending into executive powers. And that idea
13:09of the demarcation between the three major organs of state is very, very clear. Supremacy of the
13:16constitution impacts the judiciary in as much as it does the executive and the legislative branches. I
13:22suppose to some extent, people might be unhappy because it sort of upset an incumbent mindset,
13:31but we had been slowly been liberated. We were in the process of being liberated from that mindset,
13:37you know, from as early as 2016, when Tan Sri Zainun with the other members of the court then
13:46developed this idea of judicial independence and looked at the 1988 amendment, which
13:52which we all accept now is unconstitutional. So, yeah, I'm sorry, I rambled on, but you know.
13:57No, no. That was a lovely way to encapsulate her legacy.
14:03I mean, she's a hero. She's my hero. I'll say that much. And honestly, I never thought I'd see the
14:08day when the federal court would take certain things in hand and deal with it as it should.
14:15Well, I'm sure she's a hero to many of us Malaysians. Thank you so much for sharing your insights with us.
14:22I appreciate your time. That was constitutional lawyer Dato' Malik Mpia Sarwada wrapping up this
14:27episode of Consider This. I'm Melissa Idris signing off for the evening. Thank you so much for watching and good night.
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