MARCH 21 — It is shameful that the Federal Court hardly reflects the social diversity of Malaysia

The Federal Court, being the court of last resort and the highest court of law provided for by the Federal Constitution, is supposed to consist of the most senior and erudite judicial minds in the country.

After all, they are expected to carry the burden of being the final arbiter in interpreting and deciding on matters of law in the best interests of justice for all Malaysians.

Women, ethnic and religious minorities grossly under-represented

Hence, it is important that the judges that make up the Federal Court are representative of the rich and diverse social demography of our country.

Unfortunately, that is not at all the case when one considers the full bench of 12 Federal Court judges in our country, listed in the list below.

Tun Arifin Zakaria, Chief Justice

Tan Sri Dato’ Seri Md Raus Sharif, President of the Court of Appeal

Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin, Chief Judge of Malaya

Tan Sri Datuk Seri Panglima Richard Malanjum, Chief Judge of Sabah & Sarawak

Tan Sri Datuk Suriyadi Halim Omar

Tan Sri Ahmad Haji Maarop

Tan Sri Hasan Lah

Tan Sri Datuk Zainun Ali

Datuk Zaharah Ibrahim

Dato’ Azahar Mohamed

Tan Sri Dato’ Sri Abu Samah Nordin

Article 122 of the Federal Constitution provides that justices of the Federal Court shall consist of a president of the Court, called the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts (Malaya and Borneo), as well as other judges appointed by the Yang di-Pertuan Agong.

Additionally, judges of the Court of Appeal may also sit as a judge of the Federal Court where deemed necessary by the Chief Justice.

While the statutory requirements are fulfilled, there is an acute lack of diversity in the Federal Court bench. As can be observed from the table above, there is currently not a single non-Bumiputera judge in the Federal Court, despite the fact that non-Bumiputeras make up more than one-third of the Malaysian population.

At the same time, while 40 per cent of Malaysians are non-Muslims, there is only one single non-Muslim Federal Court judge. Women also find themselves severely under-represented with only two judges out of 12, which means that they make up less than 20 per cent of the bench.

Such an abysmal representation of minorities did not always use to be the case. In 2009, nearly one-third of Federal Court judges were non-Muslim while non-Bumiputeras made up 23.1 per cent. What has happened since then that the Judicial Appointments Commission has found it difficult to appoint women, non-Bumiputeras or non-Muslims to the Federal Court bench? Surely, it cannot be the case that there is none qualified.

In contrast, the Court of Appeal is much better represented. Currently, there are 23 Appellate Court judges including the President of the Court of Appeal. Six of them, or about 26 per cent, are non-Bumiputeras, while women make up one-third with eight judges. The six non-Bumiputera judges are also non-Muslims. While there is room for improvement, there is at least adequate representation of the major ethnic and religious minorities.

An increasingly conservative and patriarchal judiciary?

As the well-known aphorism goes, “not only must justice be done; it must also be seen to be done.” In this case, justice should also be seen to reflect the social diversity that is inherent in our country. The fact that women, as well as substantial ethnic and religious minorities, are grossly under-represented has led to views that the courts have become increasingly conservative and patriarchal.

Such concerns have become all the more pressing following controversial decisions in cases that touch on Islamic matters, such as custody disputes between non-Muslim and Muslim convert parents. Not only do the decisions in such cases appear to favour Muslims, they also appear to favour men.

Therefore, in order to avoid the perception of gender, ethnic or religious biasness deriving from the lack of diversity in the judiciary, it is important that the Judicial Appointments Commission look immediately into ensuring that the composition of our courts, especially the Federal Court, better reflects the diverse population of our country.

* Zairil Khir Johari is the  Member of Parliament for Bukit Bendera and DAP Assistant National Publicity Secretary.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.