This article first appeared in The Edge Malaysia Weekly on January 6, 2020 - January 12, 2020

CHIEF Justice Tan Sri Tengku Maimun Tuan Mat is scheduled to officiate her first Legal Year event on Jan 10.  The event marks the start of the year, when the three legal bodies — the judiciary, the Bar and the Attorney-General’s Chambers — come together to give an update on their achievements in the past year and their plans for the new year.

As the 10th CJ, taking over from Tan Sri Richard Malanjum, Justice Tengku Maimun has the unenviable task of restoring public trust and confidence in the judiciary and court system before she retires in six years. The judgments made by Malaysian judges from the 1960s to 1980s were reference points for Commonwealth countries because of their quality, but it will be an uphill task now to regain their past greatness.

The judiciary has been battered in recent decades and has yet to fully recover from the 1988 constitutional crisis. Then, in 2002, there was the purported illegal intervention of a senior lawyer in the judicial appointment of Malaysian judges. More recently, in 2017, two retired judges were reappointed despite the constitutionally mandated retirement age of 66 years and six months.

Malaysia’s first female CJ, Justice Tengku Maimun recognises the magnitude of the task at hand and has pledged to regain the people’s trust in the courts. Speaking at the National Litigation Conference in November, she said the entire system of the administration of justice is centred on trust.

“Reposed in the lawyers is the trust of the courts that the facts of the case will be adequately highlighted and the law appropriately applied. Lawyers in turn trust the court to sift arduously through the evidence and the law to arrive at a decision which conforms to logic and, foremost, justice,” she said.

She further cited a judgment in the PCP Construction Sdn Bhd vs Leap Modulation Sdn Bhd case, where it described the courts of justice as the bulwark of a nation.

“Alexander Hamilton famously recognised, in the doctrine of the separation of powers, that the legislature controls money, the executive controls force and the judiciary controls nothing. It is on public confidence that the judiciary depends, for the general acceptance of its judicial decisions, by both citizens and the government. The public conforms to the decisions of the judiciary, because they respect the concept of judicial power and the judges who exercise such power. Therefore, the trust and confidence of the people in the judicial system to deliver impartial justice comprises the very foundation of the judiciary,” she said in quoting the judgment.

The machinery of civil justice, Justice Tengku Maimun added, provides the processes for the peaceful resolution of civil disputes, for enforcing legal rights and protecting private and personal rights.

“The civil justice system also provides the legal architecture for the economy to operate effectively, for agreements to be honoured and for the power of government to be scrutinised and limited. The civil law maps out the boundaries of social and economic behaviour, and the civil courts resolve disputes when they arise.”

‘Judges judged by their work and judgments’

Justice Tengku Maimun also reminded judicial officers and judges to adhere to the judges’ code of ethics.

“We do not and cannot lobby to garner support. We do not typically make press statements to defend ourselves. Judges are judged entirely on our work and our judgments. But, of course, there are times when the judiciary is the subject of attack. Who would have thought that an institution meant to protect the liberty of a subject from tyranny is itself quite defenceless?” she said.

Justice Tengku Maimun noted that expectations are high for the judiciary to return to its heyday and added that the advent of social media meant greater demand for transparency even as the number of cases the courts have to handle continues to rise.

“You will recall that back then, there was no social media and the volume of cases in that era was exponentially smaller. The lay person is understandably unaware of the finer details of our system of administration of justice. In this context, lawyers are expected to play a larger role in the dissemination of this knowledge to the public, in particular to their clients and witnesses,” she added.

Justice Tengku Maimun will work in concert with the newly appointed president of the Court of Appeal Datuk Rohana Yusof, Chief Judge of Malaya Tan Sri Azahar Mohamed and Chief Judge of Sabah and Sarawak Datuk Seri David Wong Dak Wah. Wong’s tenure as CJSS may end in February, as he reaches the mandatory retirement age.

Justice Tengku Maimun is deserving of her ascension to the top judicial post, as she is regarded as a hardworking judge and has a record of writing the highest number of judgments at the Court of Appeal.

Known for her independence while giving lawyers the right to be heard when appearing before her, Justice Tengku Maimun has raised expectations since her appointment on May 2, 2019.

Moving up the ranks

Justice Tengku Maimun’s task will be helped by the improved public perception towards the judiciary as seen in the 2019 World Justice Project Rule of Law Index, where Malaysia rose five notches to 51 out of 126 countries. In the survey commissioned by the WJP, Malaysia’s improved position represents a significant rise in ranking. Malaysia’s score places it at seventh out of 15 countries in the East Asia and Pacific region, and 13th out of 38 upper-middle-income countries.

The WJP index is an evaluation of adherence to the rule of law based on 120,000 households and 3,800 expert surveys.

Eight factors are taken into consideration for the evaluation of the countries’ rankings: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice.

Malaysia is ranked 65th out of 126 countries under WJP’s calculation for the factor on the constraints on government, while it is placed 43rd on corruption, and 103rd on open government.

On fundamental rights, the country is, unfortunately, ranked 90th out of 126 countries surveyed, 43rd in order and security, and 54th in regulatory enforcement. For civil and criminal justice, Malaysia is ranked 42nd and 41st respectively among the 126 countries.

The top three overall performers in the WJP Rule of Law Index 2019 are Denmark, Norway and Finland. Regionally, East Asia and Pacific top performers in the WJP Index are New Zealand (eighth), Australia and Singapore.

The indicator is something that Justice Tengku Maimun can use to gauge public perception of the judiciary. In addition, the World Bank has also recognised Malaysia’s success in reducing backlog and speeding up the disposal of cases since 2011.

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's AppStore and Androids' Google Play.