Diversity of the bench

TO what extent does the background of a judge hearing a case influence his or her decision? A great deal, says an interesting article in the Washington Post.

It noted that almost all the judges in the US Supreme Court went to Ivy League law schools – in particular Harvard and Yale. As did the new ones being nominated by the Trump administration. In fact, the two nominees are both white male conservatives, graduates of Ivy League law schools, clerked for retiring Justice Anthony M. Kennedy and went to the same exclusive private school.

Scientific research, say some experts, shows that the shared elite background of these Supreme Court justices is a disadvantage because diverse groups make better decisions. Groups with vastly diverse members are smarter, more creative, make fewer errors and show increased problem-solving abilities, according to multiple studies across the fields of psychology, business, and organisational and behavioural science.

How does this translate to our Malaysian court scenario? While our judges emanate from a diverse set of backgrounds and law schools, a good number of our judges served in the legal and judicial service as prosecutors, legal advisers of states and ministries and the like. In other words, they spent a significant part of their pre-judgeship career working for officialdom.

Does this homogeneity of service background incline them to see authority in a favourable light? This becomes particularly important when cases are brought by citizens against governmental transgressions. Actions against authorities and statutory bodies such as the Election Commission for acting beyond their powers or even unconstitutionally.

The widely-held view is that this lack of diversity has led the courts undertaking a review of executive action (known as "judicial review" or JR) to decide cases in favour of authority in a predominant number of cases. This critique is not personal to the justices – it is an institutional problem.

In fact, the court(s) specifically assigned JR cases often kill the action off at the first stage – by refusing leave for the substantive issues to be even heard by the court. Sort of a judicial technical knock-out. Such leave from the court is a mandatory first hurdle to clear.

This is at odds with the long-established law that to get leave, all you have to do is to cross a very low threshold – show that the application is not frivolous. And that the applicant has a real and genuine interest to have his complaint fully heard by the court.

It is also a significant departure from the practice at one time where the Attorney-General's Chambers (AGC) did not object to leave save for obviously hopeless applications. Nowadays it is invariably routine for lawyers from AGC to come in numbers to contest just about each and every JR application.

This has created an unfortunate public perception that the judiciary bows to officialdom.

Worse, this perception has been exacerbated by the refusal of the higher judiciary to reconsider a 2002 decision of the Federal Court which ruled that judicial review can be ousted altogether by an act passed by Parliament: Sugumar Balakrishnan v DG Immigration Negeri Sabah.

This despite the fact that the law as it presently stands has established that JR is a crucial component of the separation of powers – which bestows the judiciary with the mandate to review any over-reach by the legislature (Parliament) and the executive (government). To oust JR would be no less than to thwart the rule of law. Hence the salutary pronouncement by the Federal Court in two landmark cases that JR forms part of the basic structure of the Federal Constitution and cannot ever be ousted: Semenyih Jaya and Indira Gandhi.

What then portends for the future? Perhaps a selection of judges with a focus on a diversity of backgrounds. Choice from varied disciplines and backgrounds. Beyond the judicial and legal service.

Indeed, the present judiciary has been enriched by a coterie selected from diverse origins: private practice, the corporate and social disciplines and academia. But the number remains a small minority. It is instructive that the judiciary in mature legal systems such as the UK and Australia comprises majority appointments from outside of the legal and judicial service.

The present chief justice's initiative to rotate JR hearings to a rotational panel of judges may be a welcome interim palliative.

And perhaps too the AGC under the new leadership of an acknowledged scholar of administrative and constitutional law repute, will ease the objections to the grant of leave for JR applications.

Gurdial Singh Nijar, a former University of Malaya law professor, currently practises law. Comments: letters@thesundaily.com