Reflections on my journey to becoming the first female Chief Justice in Malaysia: challenges and champions

Delivered by The RT. Hon. The Chief Justice of Malaysia Tun Tengku Maimun Tuan Mat

On the occasion of The Australia Indonesia Partnership for Justice (AIPJ 2) Webinar 15 April 2021

Salutation

Prof. Dr. Takdir Rahmadi, S.H., L.L.M, Head of Development Chamber/Women and Children, Working Group, Supreme Court of Republic of Indonesia, Honourable Justices of the Supreme Court of Indonesia, Honourable panellists, Honourable Chief Judges and Judges from courts across Indonesia, Craig Ewers, Team leader of Australia Indonesia Partnership for Justice 2, Distinguished guests, ladies and gentlemen.

Assalamualaikum warahmatullahi wabarakatuh and a very good morning.

Introduction

1. May I begin by expressing my sincerest gratitude to the organisers for according me the honour and privilege to deliver this speech.
2. May I also take the opportunity to congratulate the Australia and Indonesia Partnership for Justice 2 (‘AIPJ 2’) for the commendable efforts in convening this webinar in promoting gender equality and women’s representation in public institutions in line with the United Nations Agenda 2030 Sustainable Development Goals.
3. This would be my first time speaking for the AIPJ Program and I am delighted to be part of today’s event which marks a unique tripartite collaboration between Malaysia, Australia and Indonesia on the issue of women judicial leadership in apex courts.

The First Female Chief Justice

Ladies and gentlemen,

4. Article 123 of the Malaysian Federal Constitution provides that a person is qualified for appointment as a Judge of the Federal Court, Court of Appeal or any of the two High Courts if he is a citizen and if for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.
5. My journey as the first female Chief Justice of Malaysia began when I joined the judicial and legal service of the Federation where I served in various capacities for a period of more than 20 years.
6. During my tenure as a public officer, I had many memorable moments. I had the opportunity to serve under a number of High Court Judges and Chief Justices, from whom I gained invaluable guidance and which prepared me for my own stint as a judge upon my elevation to the High Court in 2006. The most memorable moment would be when I received a commendation letter from a renowned Federal Court judge on my grounds of judgment written for a civil matter in the Magistrates’ Court. The learned judge in his letter stated “… my purpose of writing to you is to congratulate you for the short and concise judgment which you wrote … which should be a model for other magistrates to emulate. If you keep abreast with the law, I am sure you will achieve excellence in your judicial and legal career…”.
7. That letter specifically drives me to always do my very best in every task and responsibility entrusted to me.
8. Having said that, never in my wildest dream did I imagine becoming the Chief Justice. My appointment as the 16th Chief Justice of Malaysia was announced by the Prime Minister’s Office on 2nd May, 2019, after the Yang d-Pertuan Agong (‘the King’) had assented to the appointment, upon the Prime Minister’s advice and after consulting the Conference of Rulers, in line with Article 122B(1) of the Federal Constitution. Upon my elevation to the Office of Chief Justice, I made headlines as the first female Chief Justice in the history of Malaysia. I was, to quote The Edge Financial Daily, “… being one of the most junior Federal Court judges …. plucked from the apex court for the topmost judicial post in the country.”. This report came about as normally those who ascend to the top post would go through the motions of being appointed to the senior positions such as the Chief Judge of Sabah and Sarawak, Chief Judge of Malaya, or the President of the Court of Appeal. It was also reported that I had bypassed all that, to be appointed the senior-most judge in the country, overtaking my senior brother and sister judges.
9. The Malaysian Bar described me as a person “known for her sound decisions, impeccable judicial temperament and most of all her independence.”.
10. This appointment was lauded by many and was held in high regard and esteem. Many Malaysian women are most encouraged by this appointment in a field which is traditionally claimed to be male-dominated, and it was seen as a constructive and encouraging step towards increasing the number of women in positions of leadership and decision-making in Malaysia, and in increasing diversity in the gender composition of the Malaysian Judiciary. In the words of the retired Federal Court judge, Tan Sri Zainun Ali, my appointment “…means a lot in acknowledging competency of judges without care for their gender.  ... Used as we are to this government’s admirable and robust approach in appointing competent women to top positions in the country, the appointment of the Chief Justice is phenomenal. … It speaks volume of the cadence … of the government – from the King to the Prime Minister and the Cabinet – ….”.
11. The response to my appointment was indeed very overwhelming. In sum, all the values of judgeship were said to be deeply intrinsic in me; that my discipline is second to none; that my sense of justice is finely balanced; that I will keep a stringent regime that assures judicial integrity; and that my appointment as the first female Chief Justice is testimony to my being highly capable and experienced to steer the judiciary to the next level of excellence.
12. I was and still am truly humbled by the kind and generous words and accolades accorded to me. But certainly, most of those attributes are to be expected of a judge and what more as the Chief Justice.
13. In welcoming my appointment as a ‘big step’, many women viewed the appointment as important in making a difference when it comes to cases which involve the rights of women at the workplace, marriage and divorce, rape and domestic violence cases. Many opined that male judges lack empathy in handling these types of cases. Hence, gender balance is significant to ensure consideration and understanding from a woman’s perspective.
14. That said, I strongly believe, then and now, that my appointment to this position was not determined nor defined by mere gender, but on merit.
15. The task of a judge is onerous and it is reflected in the oath that we judges take, namely to “bear true faith and allegiance to Malaysia and to preserve, protect and defend the Constitution.”. This task could not be discharged properly by a judge without him or her standing firm against arbitrary state action on behalf of the citizens and the weak, and to strike down unconstitutional laws, when the occasion arises. In this regard, to ensure impartiality and to ensure the protection of the rights of the minorities, Lord President Tun Suffian’s advice bears reiteration, namely that these tasks have to be undertaken such that there is no identification with any particular race or religion – and if I may respectfully add to that: gender.
16. Undeniably, judging requires knowledge, integrity and courage. These qualities are the hallmarks of a great judge. As the head of the apex court and the entire Judiciary, it is important that I, as the Chief Justice, exemplify these qualities.
17. In the many interviews that I have given and in the speeches that I have delivered on my role as the first female Chief Justice, I have always articulated that independence, integrity and sound knowledge of the law are the traits of a good judge. Decisions are never made based on conjecture, emotions, sentiments or even gender for that matter. The top most position in the Judiciary and one of the highest in the country bears huge responsibilities that I must shoulder and discharge dutifully. In that sense, gender is immaterial and bears no relevance at all to my role.
18. Even before me, two women had been appointed to leadership positions in the Malaysian Judiciary. They were Tan Sri Siti Norma Yaakob and Tan Sri Zaharah Ibrahim, who were appointed as the Chief Judge of Malaya in 2005 and 2018 respectively.
19. I am proud to state that as of now, we have 8 female judges out of 14 judges in the Federal Court, the apex court in Malaysia. The intermediate tier of the superior courts hierarchy, namely the Court of Appeal has 10 female judges out of 30 judges. Since its establishment in 1994, the Court of Appeal is helmed for the first time by a female judge, i.e. Justice Rohana Yusuf, who was appointed as President of the Court of Appeal, about four months after my appointment. As for the High Courts, we have a total number of 98 judges, including judicial commissioners, who are appointed for a period of two years, out of which we have 30 female judges.

Ladies and gentlemen,

Challenges

20. I am aware that it is rare for women to be at the helm of the judiciary due to the obvious stereotype against women as leaders. Having shattered the proverbial glass ceiling as some might say, the challenges await me. These challenges, except for one, are not necessarily related to my gender, but related generally to judges and those who helm the Judiciary.
21. I begin with the gender related challenge. The challenge is to balance professional duties and domestic duties. This challenge, confronts not just me but all other women who are striving to achieve excellence in their career without having to neglect their families. We live in a society where a woman has to deal with almost all of the “typical” family duties like the duties of a mother, a wife, to perform household chores and other daily routines. Despite our economic and social progress, men are still considered the ‘boss’ of the family and however high a post a woman holds, she is largely responsible for familial duties in managing and handling children, doing the cooking, and other household chores. Because of these social and psychological traditions in our society, it is generally challenging for women to spend long hours dedicated to their job, without sacrificing familial duties. Women therefore need the support of their family very much, in particular their husband to see them through this challenge.
22. I am blessed in that I have a very understanding family. As I climbed the career ladder and held positions of greater responsibility and duty, there were many times in my career that I needed calm, concentration and focus to handle and to judge on difficult and high profile cases. In those trying times, my family was my bedrock of support and strength. They still are.
23. My husband, in particular has given me considerable support. He has played a strong role in encouraging me throughout my career. He reminded me that I have a great responsibility to discharge and particularly with regard to my writing grounds of judgment, he has always emphasized that judgments are a judge’s legacy. Hence, I have no difficulty focusing on my official tasks, as he will always give me the ‘space’ which allows me to complete the grounds diligently. In this regard, I do think that it is also important that career women manage their time efficiently, knowing how and what to prioritize.
24. The time when I stepped in as the Chief Justice was quite a challenging time for the Judiciary. The courts’ image has been battered with disgraceful false allegations of abuse of power and also controversies involving top judges. The allegations and negative perception against the Judiciary then was that the Judiciary was subservient and beholden to the Executive. To manage this negative perception and to restore the image of the Judiciary is the other challenge that I face.
25. How do I restore the image of the Judiciary? I believe this could be done by my instilling greater public confidence in the Judiciary.
26. What I did upon my appointment was to reiterate the Judiciary’s role as the third organ of government. I emphasised in my maiden speech that the Judiciary is committed to defend the Rule of Law and to maintain its independence.
27. Independence of the judiciary calls for individual judges and the judiciary as a whole to remain impartial and independent of all external pressures and of each other, so that those who appear before them and the wider public can have confidence that their cases will be decided fairly, free from any interference, be it from litigants, the Executive, the media, powerful individuals or entities, and from other judges. In other words, in deciding cases, judges are answerable to no one, except their conscience and their learning, where decisions are made solely on the evidence presented in court by the parties and in accordance with law.
28. In maintaining its independence, the integrity of the judiciary is a pre-requisite. And as identified in the Bangalore Principles of Judicial Conduct, integrity encompasses all concepts that refer to the ability of the judicial system or an individual member of the judiciary to not only resist corruption, but to fully respect the core values of independence, impartiality, personal integrity, propriety, equality, competence and diligence.
29. Related to maintaining the independence of the Judiciary is the challenge that confronts the Malaysian Judiciary when deciding constitutional matters in terms of the issue of judicial power of the courts vis-à-vis our Federal Constitution. Malaysia has a system of constitutional supremacy. Although this has been established decades ago through the judgment of the apex court in Ah Thian v Government of Malaysia [1976] 2 MLJ 112, my observation is that judges have not been applying the principles of constitutional supremacy the way that they should. This, I believe is due to the heavy reliance by our judges thus far on English precedents or cases. The stark difference however is that English law/system is not premised on constitutional supremacy but on parliamentary supremacy. My challenge in this regard is to provide continuing legal education to judges for their better understanding of the very reason behind the Judiciary’s existence or power under the Federal Constitution. Only if judges correctly understand their role and power can they discharge their duties effectively and fairly.
30. There were high hopes and dreams expressed on my appointment as the first female Chief Justice. The Malaysian community as a whole hoped that I would restore the judiciary to its past glory and that I will put in place righteous judges to adjudicate cases at hand¹. Human rights activists and women’s rights group wished that I would help tackle the low conviction rates in cases like rape and domestic violence².
31. These expectations bring several other challenges. They relate to the lack of understanding among the public on the Malaysian judicial and legal system itself. One aspect is the lack of understanding on the decision making process of the courts. The courts decide cases before them based on the evidence as led by the prosecutor. In cases where the courts find the evidence lacking, the person accused of the offence has to be acquitted. The fact that the perpetrator/accused is a male, that the judge is a male and that the victim is a female, bears no significance as cases will be decided based on the facts/evidence tendered and the law.
32. The second aspect of the lack of understanding is this. Malaysia is a multi-racial and multi-religious nation with majority of the population being Malay and Muslim. Article 3 of the Federal Constitution stipulates that Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation. And for Muslims, we have a dual court system, namely the syariah system dealing with personal law matters and civil court for all other matters. As a Muslim Chief Justice, I was expected to ensure that Islamic principles are safeguarded and that Islam be translated as a way of life, not just confined to the provision of law³. The fact remains that notwithstanding Article 3 of the Federal Constitution, the mainstream Malaysian judicial and legal system is based not on Islamic or syariah jurisprudence, but on secular or civil law. This was settled and made clear by the Supreme Court in the judgment of Lord President, Tun Salleh Abas, in Che Omar bin Che Soh v Public Prosecutor & other appeals [1988] 2 MLJ 55 where it was held that the word ‘Islam’ in Article 3 refers only to acts which relate to rituals and ceremonies and that syariah law cannot invalidate or override secular laws in Malaysia. The demarcation between the two streams was carefully crafted for us by the drafters of our Federal Constitution and my role as a judge is to apply the law.
33. In addressing the challenges relating to lack of understanding of the courts’ role, we have embarked on a program known as the MyC2C or Court to Classroom where judges and judicial officers visit selected schools in the country to teach the students on the basic features of the Federal Constitution and the legal system in Malaysia. Educating the public is important and we are starting with the young.
34. The next challenge relates to my age and tenure as the Chief Justice. Malaysian judges retire at the age of 66. I was elevated in 2019 to be the Chief Justice of Malaysia two months before I turned 60 years old. Compared to my predecessors, that is a relatively young age to helm the Judiciary, and what it means is that, I would have, by Allah’s grace and mercy, longer years to perform the vital work of further reforming the judiciary in a holistic and comprehensive manner, so as to ameliorate the negative impact of historical blots on the judicial landscape and to continue the effort to rebuild public confidence in the judiciary.
35. Looking ahead, speaking specifically on women’s rights and access to justice, I acknowledge that it is essential for women as wives and mothers to have ready access to justice particularly through better administration of Family Courts. These Courts determine fundamental and everyday disputes that comprise the cornerstone of every domestic household.  The Malaysian Judiciary is looking into the Singapore family law court model where the Judge drives the entire litigation including the filing of documents. It breaks away from the traditional adversarial system by not leaving it to litigants or their lawyers to present their respective cases. The whole idea is to get to the heart of the dispute without delay.

36. Champions

Ladies and Gentlemen,

37. As I understand the word ‘Champions’ in the context of this Webinar, it refers to individuals who see the need for change and who break down barriers of resistance. It would be difficult for me to identify in particular the ‘Champions’ who were advocates in respect of the gender diversity in the Malaysian Judiciary but I must say that we in Malaysia are fortunate in that we have transcended the gender diversity in terms of the number of female judges at all levels when compared to many other countries in the world. It is pertinent to note that this evolution has not been engineered artificially to achieve the numbers or to merely demonstrate that a gender quota has been met, rather, the evolution has been a natural progression which has come about purely on the basis of merit.
38. My journey for the past 23 months as the Chief Justice has been quite incredible, despite the challenges from a diverse spectrum, including but not limited to managing public perception as well as managing Courts in times of the Covid-19 pandemic. For this, I must express my gratitude and appreciation to all my brother and sister judges and all the officers and support staff. The Malaysian Judiciary, like most Judiciaries in other jurisdictions, has capitalized on technology in times of pandemic. Throughout the different phases of the ‘lockdown’, the Judiciary remains steadfast in providing access to justice to the public, which led us to conduct proceedings through remote communication technology or better known as online hearings. And in order to better facilitate online hearings, the Judiciary has embarked quite quickly on amending specific laws such as the Courts of Judicature Act 1964 and the Subordinate Courts Act 1948.

Conclusion

39. Being the first female Chief Justice of the nation does not bring any added pressure on me. My task as the head of Judiciary is foremost to provide leadership to all judges in discharging their duties to uphold the rule of law and to uphold the supremacy of the Federal Constitution. The real pressure lies in the position itself and the responsibilities that come with it which require a great amount of accountability. My gender is irrelevant in providing that leadership. What is relevant is the qualities of a leader. Among others, I need to be brave and steadfast in setting out the philosophy to steer the Judiciary to greater heights. All the kind words expressed by various parties on my appointment as the first female Chief Justice in Malaysia will serve as a benchmark for me to ascertain whether I have lived by those words in discharging my responsibilities.
40. I must say that it is indeed a privilege and a great honour for me to be appointed as the first female Chief Justice of Malaysia.  And with so many talented and able women in the legal profession, I am confident that I am not the first and the last female Chief Justice of Malaysia. Significantly, justice is represented by a lady carrying a sword and scales, nearly always blindfolded to symbolise the fair and equal administration of law, without bias or prejudice, fear or favour. It is thus most befitting to have female judges administering and dispensing justice.

Thank you.

Footnotes