Aug 5-6, 2000 

Silly squabble between minister and judge
M Bakri Musa and T Melindah Musa

The recent silly squabble between Minister Rais Yatim and Chief Justice Eusoff Chin reveals the character of these two top public servants. That a junior minister (and a rookie one at that) could openly humiliate the chief justice (a man considerably higher in the government scheme of things) leads me to a disturbing thought: Would a more powerful minister hesitate in letting a less senior judge know of his (the minister's) displeasure? 

Rais Yatim, in his previous incarnation as deputy leader of the opposition Semangat Party, was highly critical of the unchecked powers of the executive. Such overzealous dominance, he wrote, threatens the independence and integrity of the judiciary. 

That was then. Now that he is in the cabinet, he is singing a decidedly different tune, one more pleasing to his master's ears. Alas, a belief so readily discarded is no conviction at all.

While the two argued in public, a more damning criticism of our judiciary remains unanswered. The chief justice has not even read the report, Justice in Jeopardy: Malaysia 2000, the findings of respected international jurists, despite it being readily available on the Internet. Is he computer illiterate? 

Rais Yatim, meanwhile, boldly proclaimed, soon after his cabinet appointment, to vigorously rebut the report. Thus far his promise remains just that - a politician's word. Had he not wasted his time on the ill-chosen holiday companions of the judge, Rais would have the time to study the report, and more usefully, learn from it. 

He will discover that our judiciary does not look pretty from where he sits. A recent survey by the Political and Economic Risk Consultancy, for example, ranked our judiciary behind that of Korea and the Philippines.

The mainstream media, as expected, completely ignored the highly critical report. The "alternative" media, no fan of the government, was seduced by the report's reservations over the conduct of Anwar Ibrahim's trial, and not surprisingly, highlighted that. 

Actually that part of the report was the least damning. Presumably, had Anwar's decision gone the other way, these critics would be satisfied and be singing praises for our system.

Perhaps the most damaging criticism in Justice in Jeopardy is on the selection of our judges. The integrity of our judiciary depends on the caliber of individuals we appoint to the bench. A superior system, no matter how elaborate the safeguards and checks and balances, would be easily subverted into a corrupt one if we appoint less than outstanding individuals as judges.

Senior Malaysian judges, like other top civil servants, are appointed exclusively from within. They are unidimensional and lack outside experience and perspective. As The Malay Dilemma Revisited (by M. Bakri Musa) noted, "Malaysian judges are almost entirely drawn from the legal service. 

They are more familiar with the Federal Gazette and General Orders rather than outside realities. And we expect them to render judgments on complex litigations." Few of our judges have distinguished themselves outside of government.

Striking contrast

In striking contrast, Singapore's Chief Justice Yong Pung How had considerable experience in private practice as well as being the former chief executive of a major corporation. He brought a wealth of experience to his present job. 

He is also the product of the finest law schools (Cambridge and Harvard). I cannot imagine a "smart aleck" attorney or an overreaching politician making snide remarks about his competence or integrity.

America's Supreme Court counts amongst its members former state governors, renowned legal scholars, leading corporate lawyers, and eminent private attorneys. Malaysia had a brilliant head start with its first Chief Justice, Tun Suffian Hashim, a Queen's scholar and Cambridge graduate. 

Unfortunately, with rare exceptions, it is a steep downhill slide after that. To gauge the quality of our judges, examine their post-judgeship activities. One, for example, could not even pen his own book. I wonder how he wrote his judgments. Voters wisely rejected his repeated attempts at a political career. 

If Rais Yatim is serious about revamping our judiciary, here are some suggestions. The next time a vacancy occurs, open up the process. Seek the views of the Bar Council, law professors, and distinguished lawyers. 

Granted, many successful attorneys are loath to leave their lucrative practices, but there will be a few who, having set aside a comfortable nest egg, would consider a senior judicial appointment a solemn public duty. 

Get an outsider for a change. Such novel appointments would rejuvenate the judiciary. But please, do not humiliate these legal luminaries by making them go through the usual civil service hoops or start as a lowly magistrate. You will never attract top talent that way.

It would help immensely if we substantially increase judges' salaries. Our chief justice should make as much as the prime minister, and federal judges as much as a cabinet minister, to reflect their comparable stature. If we pay our judges well then we would not have to worry whether they can afford overseas vacations.

Court recorders 

Good pay alone is not enough. Give our judges decent facilities and support. Their chambers should be as fancy as ministers' offices, again to reflect their equal standing. Supply them with court recorders. It is pathetic to see our judges furiously scribbling in long hand and ignoring the proceedings. 

Similarly, provide them with able assistants. American judges have law clerks to help review and research their cases, and to draft judgments. These "clerking" positions are highly sought by top students from prestigious law schools. 

Such clerks free judges from mundane court activities. Besides, these fresh brilliant lawyers inevitably invigorate the intellectual juices of our judges. With able law clerks, we will not have to wait forever for court decisions.

If we appoint outstanding individuals and then give them the necessary support, our judges would earn the enhanced prestige they deserve, and more importantly, the confidence and respect of the citizens.

M BAKRI MUSA is a surgeon in private practice in California and the author of The Malay Dilemma Revisited: Race Dynamics in Modern Malaysia (iuniverse.com). T MELINDAH MUSA, a graduate of Harvard Law School and a former law clerk for a United States Court of Appeals Judge, is in private practice in Washington, DC.