Malaysia's Judiciary, Failing Quantity and Quality Tests
One remarkable thing about the Malaysian judiciary is how small it is. The recent Chief Justice scandal has highlighted how problematic corruption in the judiciary is, or at least is perceived to be (if we want to be exceedingly generous about the benefit of the doubt).
That there is so much perceived corruption in such a tiny institution is surprising; it is disproportionate. Scandals at the highest levels in the justice system, which we consistently witness do not appear to be as common in even some of our worst basket case neighbours.
Pakistan may be a third world authoritarian country virtually governed by its military, but even there its judiciary has withstood the trespasses of the executive and even become a flagbearer for reform, as highlighted by the incredible outpour of public support for the judiciary when President Pervez Musharraf attempted to oust judges who were not to his liking.
Malaysia experiences a rate of corruption in the judiciary extremely disproportionate to its tiny size, which indicates that something is very wrong with how we appoint our judges.
The first problem, of course, is that we are not appointing enough judges. A report in the New Straits Times issue of 1 September 2006 indicated that we have 2.4 judges for every million people. By way of comparison, India has four times this amount!
Of course, there would not be much to complain about if this process produced excellent judges. After all, a low proportion of judges compared to the general population may simply indicate that we are appointing very efficient and honest judges, with very stringent selection criteria.
But all the evidence suggests otherwise — that we are not winnowing the wheat from the chaff, but taking and appointing the chaff while throwing out the good wheat!
The infamous backlog of court cases, with some accused of offenses waiting a decade or more to stand trial, is one black mark.
The backlog of written judgments in trials which have been heard is another, with several prominent judges recently accused of failing to promptly deliver written judgments, making appeals impossible.
Earlier this year, I had the good fortune to personally witness the proceedings of a session of the Federal Court; at least one case in the apex court of our land was delayed because the lawyers could not obtain a written judgment!
And, of course, we have clear disincentives for good judges to progress. There is no reason to think Gopal Sri Ram is a particularly bad judge, though some of his rulings have been controversially overturned in the Federal Court (the Metramac case being one such example) but he has been sitting in the Court of Appeal for years.
Meanwhile, some colleagues of his who heard cases in the Court of Appeal for only a few months have been promoted ahead of him! This would perhaps be excusable if they were brilliant men and women, but for Gopal Sri Ram to have been bluntly ignored, after years of service, can only indicate that he is either a terrible judge relative to his colleagues, or that his performance is simply not recognised.
Much is rotten in the state of the Malaysian judiciary, to borrow an overused Shakespeare quotation. We have to re-examine our whole process of appointing and promoting judges.
Our justice system should be giving everyone a trial, and making sure that trial is a fair and just one. There is usually a trade-off in the short run between quantity and quality, and I am sure the justice system is no exception.
The remarkable thing here is that no such trade-off exists; we can confidently say that our justice system is not delivering, both on quantity and quality. It is time to look at our process of judicial appointments, and to ask what has gone wrong.