More Relief, Little Enthusiasm; And That's The Problem!

 More Relief, Little Enthusiasm; And That’s The Problem!

M. Bakri Musa

 

Malaysians are relieved with the choice of the new top judge. Relief, yes; enthusiasm, no. Therein lies the problem, and the continuing challenge.

 

            It was feared that a far less desirable candidate would emerge. Hence the great relief with the Agung’s announcement on July 18, 2025. Many wondered whether Prime Minister Anwar was reprising an old trick referred to in the social sciences as “Asymmetric Dominance Effect,” or the colloquial “Decoy Candidate.” The former is associated with marketing and political strategies; the latter, wily politicians.

 

President Nixon was a master of the reverse decoy candidate, also with less-than-benign intention. His first Supreme Court nominee, for Chief Justice, Warren Burger was swiftly and overwhelmingly ratified by the Senate. Less acknowledged was that Nixon had also eliminated his strongest potential rival for the presidency.

 

Nixon followed that with a number of mediocre nominees including the laughable Harold Carswell on the grounds that, to quote one of Nixon’s supporters in the Senate, that “even the mediocre were entitled to a little representation as there are a lot of mediocre judges and people and lawyers.” 

 

Back to Anwar’s ultimate choice, Wan Farid had his law degree from a less-than-stellar institution. That is the norm with Malaysian top civil servants. Witness the new Chief Secretary to the government. Farid at least had some outside-the-government experience including retail politics. He was a defeated UMNO candidate in the only election that he had participated in. I consider his UMNO membership neither a liability nor an asset. At least he was not in Anwar’s party. 

 

In that respect Farid is unlike most Malaysian judges who, like their fellow civil servants, are unidimensional and have insular backgrounds.

 

Many criticized Wan Farid’s rapid rise, having been appointed to the High Court Judge in August 2018 and the appellate bench only last November. The latter merits serious criticism as he had few if any written judgements to go by.

 

His jumping over far more senior judges is a positive. The judiciary, like the civil service, has long been burdened with and crippled by this seniority syndrome, the very antithesis of meritocracy. The Judicial Appointments Commission (JAC) was meant to remedy that.

 

Anwar was also criticized for not extending Wan Farid’s immediate predecessor’s term beyond her mandatory retirement. That too was not unusual.

 

I am not competent to comment on Tengku Maimun’s judicial judgements. Reflecting her long tenure, she had authored an unprecedented number (six) of forwards to JAC’s Annual Reports. Reading them one gets the impression that the Malaysian judiciary is all hunky dory, if not the envy of the region. Not a word from her on the growing public concerns for the judiciary’s integrity and independence. Instead, her reports are replete with bland obligatory long Arabic incantations and trite praises for her staff and colleagues. Nothing on the significance and relevance of her institutions, or the many challenges they face.

 

Contrast that to her immediate predecessor, Richard Malanjum. Despite being the shortest serving Chief Judge, he wrote this in the forward of his only JAC’s Annual Report (2018):

 

“Transparency and integrity are important dimensions that guarantee justice based on the principle of the Rule of Law. As the most important element in the practice of separation of power doctrine in Malaysia, judicial institutions need to be a reference model to legislative and executive institutions. Hence, the presentation of [JAC 2018] Annual Report . . . is not merely to comply with requirements . . . [but] a form of manifestation towards realizing the responsibility of institutionalizing the spirit and practice of high transparency and integrity. This report is an important channel for disseminating information on the functions, performance and achievements of the Commission . . . .”

 

Malanjum took his responsibilities, including writing the forward to his Annual Report, seriously. Read the other 15 JAC Annual Reports. None could match Malanjum’s clarity and centrality of message. That reflected his superior legal education, honors degree from London University. The Malaysian judiciary has more than a few such individuals but their talents are under-appreciated.

 

Systems are important but when each legal case is unique, then unlike Deming’s red beads experiment, it is far more important to have superior personnel, as ably demonstrated by Malanjum.

 

As for decoy candidates, far more dangerous would be a Manchurian one, beholden to his or her master. That unfortunately is now the norm, and not just in the judiciary. Time to break that.