- 5 months ago
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Malaysia is facing an unprecedented moment for its judiciary. The two highest posts in the judiciary will become vacant within days of each other. And as at the time of this recording, there is still no formal announcement of succession. What concerns might arise from a vacuum at the top of the judiciary, and what do we need to do now to safeguard against the perception—or reality—of the Judiciary being compromised? On this episode of #ConsiderThis Melisa Idris speaks with
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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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