Chief Justice Sundaresh Menon: Opening Address at Jones Day – Centre for Asian Legal Studies Professorial Lecture on the Rule of Law in Asia

1. Good evening. Let me first thank the Faculty and the Centre for the kind invitation to deliver this opening address. It is a real privilege, and indeed a joy, for me to introduce this year’s Jones Day-CALS Visiting Professor on the Rule of Law in Asia, Tun Richard Malanjum, who is a former judicial colleague and a very good friend.

2. Tun Malanjum served some 27 years in the Malaysian Judiciary, in the course of which he made history at least three times: first as the youngest judge to be appointed to the Federal Court of Malaysia at the age of 52, and then as the first Sabahan to be appointed as the Chief Judge of Sabah and Sarawak, and later as the first East Malaysian to be appointed as the Chief Justice of Malaysia.⁽¹⁾ In 2020, he was awarded the honour of Grand Commander of the Order of Loyalty to the Crown of Malaysia, or the Darjah Seri Setia Mahkota.⁽²⁾ And in 2022, Tun Malanjum was appointed as the Ombudsperson to the ISIL and Al-Qaida Sanctions Committee of the United Nations (“UN”) Security Council.⁽³⁾

3. But these are just part of the public face of Tun Malanjum’s career. As impressive as these achievements undoubtedly are, the part of Tun Malanjum’s life’s work that has left the deepest impression on me is his work in bringing justice to the rural communities living in the deep interiors of Sabah and Sarawak, where indigenous peoples form most of the populace.⁽⁴⁾  Before 2007, many of the people in these communities were effectively unable to enjoy the privileges of Malaysian citizenship, such as access to formal education or basic healthcare, for the simple reason that they did not have a birth certificate. The topography of the region and the sheer remoteness of their villages and places of abode from the cities, where the National Registration Department’s offices were located, made it extremely difficult, for all practical purposes, for them to register their children’s births within the 42-day period prescribed by the law. Just by way of illustration, a villager who wished to travel from rural Kampung Inarad to the town of Sandakan would have had to travel around 230km on roads or trails of gravel and timber. And since the process might take several days, she might have to rent a four-wheel drive vehicle and incur the cost of accommodation during the journey – not to mention the cost of seeking legal advice on the applicable requirements and procedures.⁽⁵⁾ 

4. This, to my mind, is a striking example of what I have referred to elsewhere as the “justice gap” – the disparity between the legal needs of persons in the community, and the resources available to meet those needs. I have suggested on other occasions that the justice gap has three principal dimensions: a physical gap arising from the physical difficulties and distances that stand in the way of accessing the institutions that administer justice; a resources gap posed by the financial and other costs of navigating the justice system; and a literacy gap stemming from a lack of legal literacy or awareness of one’s legal rights, responsibilities and privileges. The rural communities of Sabah and Sarawak faced all three dimensions of the justice gap, and as a result, they were cut off from many of the fundamental privileges that, as citizens, they should have been able to enjoy.⁽⁶⁾

5. This changed in 2007, when Tun Malanjum – shortly after he was appointed the Chief Judge of Sabah and Sarawak – introduced an innovative mobile courts initiative. He procured, partly by his own means and partly with the help of benefactors, a number of buses that were specially modified into mobile courtrooms. Each bus was proudly emblazoned with the motto “Justice for One and All”. It was equipped with satellite communications, IT and recording apparatus, and staffed by an interpreter, a Commissioner for Oaths, and a Magistrate. These buses would make their way into the remote villages in the jungles and register cases, conduct citizenship inquiries, and hear civil and criminal matters. The teams didn’t stop there. They would also provide other services, such as the attestation of documents, and they undertook the humanitarian work of providing healthcare and welfare aid, and distributing medicine, food, books and used clothing to the villagers during these visits.⁽⁷⁾ And here is the really staggering proportion of this achievement: by December 2018, this initiative had, among other achievements, facilitated the birth registration of more than 87,000 children.⁽⁸⁾ The mobile courts initiative not only tackled the birth registration problem head-on, but went well beyond this by bringing justice – in a much broader sense – to those who might otherwise have been shut out; and these efforts also served a critical function in enhancing the public legitimacy of, and confidence and trust in, the Malaysian justice system.⁽⁹⁾

6. The work and legacy of Tun Malanjum and the mobile court teams are, to my mind, heroic and deeply inspiring. Associate Professor Neo reminded us of the Court of Appeal’s pronouncement that the rule of law is the bedrock on which our society is founded and on which it has thrived,⁽¹⁰⁾ and it has been a central organising principle for communities in our region. It must be so. And while there may be scope for disagreement and contestation over the precise content of the rule of law, most would agree that it must include a shared societal commitment to the belief that the law as the embodiment of justice should rule.⁽¹¹⁾ It is this shared societal commitment to its core values that brings the rule of law to life. This commitment, in turn, rests on the substratum of public confidence and trust in the justice system.⁽¹²⁾ But public confidence and trust is not secured only by striving for excellence and sophistication in our legal systems; it must also be protected by ensuring that those legal systems can be reached by those who need to avail them.⁽¹³⁾ 

7. In reality, however, and contrary to the fundamental principle that all are equal before the law, socio-economic inequalities often place the justice system and its benefits beyond the reach of those who may need it the most. In 2019, the World Justice Project estimated that 5.1 billion people around the world – which is approximately two-thirds of the world’s population – had “unmet justice needs”,⁽¹⁴⁾ mainly because they faced obstacles⁽¹⁵⁾ that stood in the way of their obtaining just remedies for their everyday civil, administrative, or criminal justice problems, or because they lacked the legal tools⁽¹⁶⁾ that would allow them to protect their assets and access the opportunities and services that the law provides and facilitates. And that was even before the onset of the COVID-19 pandemic, which has evidently intensified the “access to justice crisis”.⁽¹⁷⁾ For those who are cut off from the benefits offered by the justice system, the rule of law can easily seem more like an elusive ideal than something in which they can truly believe.

8. This is why I have advocated the adoption of a broader vision of the rule of law that places significant weight on securing access to justice as a key priority, especially for judiciaries today.⁽¹⁸⁾ Tun Malanjum’s tremendous contributions in this regard should continue to serve as a source of immense inspiration for all of us who are passionate about ensuring that the law serves as a force for good in our communities. Indeed, what is particularly striking about the mobile courts initiative is that it did not depend on the adoption of cutting-edge or fancy technologies, or sweeping reforms to the justice system – the mobile courts themselves were quite humble and unadorned, but the outcomes they achieved were truly impressive, and their impact profound.⁽¹⁹⁾ 

9. After his retirement from the Malaysian judiciary, Tun Malanjum’s contributions to the rule of law have continued on the international plane, in his capacity as the Ombudsperson to the ISIL and Al-Qaida Sanctions Committee of the UN Security Council. As Ombudsperson, he makes recommendations to the Sanctions Committee on requests from individuals and entities to be removed from the UN’s Sanctions List. It is this work that forms the subject of his lecture this evening. I was privileged to catch up with Tun Malanjum over lunch in New York in May last year and to gain a first-hand account of his work and the unusual dangers he has been exposed to in its course, and I hope he will tell us about some of them in his lecture. Our world today faces serious threats to international peace and security, but even as these challenges require robust responses, these responses must operate within the framework of our rules-based international order, with its respect for due process and the rule of law. For instance, one of the four pillars of the UN’s Global Counter-Terrorism Strategy is the taking of measures to ensure respect for human rights for all, with the rule of law as the foundational basis of the fight against terrorism.⁽²⁰⁾ Given the potentially far-reaching ramifications of being placed on the UN’s Sanctions List,⁽²¹⁾ it is important that there be a viable and accessible mechanism for de-listing requests to be properly considered, and the Ombudsperson plays a key role in this regard. Indeed, of the 100 cases that have been concluded through this process, 70 de-listing requests have been granted by the Sanctions Committee, as a result of which 65 individuals and 28 entities have been removed from the Sanctions List.⁽²²⁾  This is important and challenging work, and we are privileged to be hearing Tun Malanjum’s perspectives and insights on these matters.

10. I want finally to thank Jones Day for their generous endowment of this Visiting Professorship, and for making today’s event possible. I would especially like to acknowledge the vision of my good friend and former Managing Partner of the firm, Steve Brogan, whose commitment to advancing the rule of law in Asia was instrumental in securing this endowment. Events like this provide invaluable opportunities for law students and faculty alike, as well as the broader legal fraternity, to hear first-hand from eminent individuals like Tun Malanjum who have made the rule of law their life’s work. I would especially like to express my deep gratitude to Tun Malanjum for taking this time to speak to us. Please join me in welcoming Tun Malanjum.

^{(1) Ida Lim, Malay Mail, “Richard Malanjum’s epic journey from Tuaran in Sabah to Palace of Justice in Putrajaya” (13 April 2019) (“Richard Malanjum’s Epic Journey”): https://www.malaymail.com/news/malaysia/2019/04/13/richard-malanjums-epic-journey-from-tuaran-in-sabah-to-palace-of-justice-in/1742903; Ida Lim, Malay Mail, “Malanjum: Malaysia’s CJ with shortest tenure, but long on reforms” (12 April 2019): https://www.malaymail.com/news/malaysia/2019/04/12/malanjum-malaysias-cj-with-shortest-tenure-but-long-on-reforms/1742610.
(2) Malay Mail, “Agong confers ‘Tun’ title to ex-CJ Malanjum and former Felda chairman Raja Muhammad Alias” (13 November 2021): https://www.malaymail.com/news/malaysia/2021/11/13/agong-confers-tun-title-to-ex-cj-malanjum-and-former-felda-chairman-raja-mu/2020602. 
(3) Ida Lim, Malay Mail, “UN appoints Malaysia’s former top judge Richard Malanjum as ombudsman to Security Council” (1 March 2022): https://www.malaymail.com/news/malaysia/2022/03/01/un-appoints-malaysias-former-top-judge-richard-malanjum-as-ombudsman-t/2044754. 
(4) Judge Zainun Ali, “Malaysia's Mobile Court - Judging in the Still of the Forest”: https://www.unodc.org/dohadeclaration/en/news/2019/12/malaysias-mobile-court---judging-in-the-still-of-the-forest.html (“Judging in the Still of the Forest”). 
(5) Sundaresh Menon CJ, “Technology and the Changing Face of Justice”, keynote lecture at the Negotiation and Conflict Management Group Alternative Dispute Resolution Conference 2019 (“NCMG Lecture”) at para 2; Judging in the Still of the Forest; Richard Malanjum’s Epic Journey; and Philip Golingai, The Star Online, “Mobile court to the rescue” (15 November 2014): https://www.thestar.com.my/opinion/columnists/one-mans-meat/2014/11/15/mobile-court-to-the-rescue.
(6) NCMG Lecture at para 11; see also Sundaresh Menon CJ, “Securing Trust: The Project of Judicial Leadership”, welcome address at the opening of the Court Week of the inaugural Judicial Executive Programme (21 November 2022) at para 10. 
(7) NCMG Lecture at paras 3–4; Daily Express, “How the Mobile Court Works” (3 December 2017): https://www.dailyexpress.com.my/news.cfm?NewsID=121469.  
(8) Richard Malanjum’s Epic Journey. 
(9) Judging in the Still of the Forest. 
(10) Tan Seet Eng v Attorney-General and another matter [2016] 1 SLR 779 at [1]; Sundaresh Menon CJ, opening address at the Singapore Academy of Law Annual Lecture 2023 (8 September 2023) at para 9.
(11) Sundaresh Menon CJ, opening remarks at the World Justice Project’s Asian Launch of the Rule of Law Index 2021 (28 October 2021)(“WJP Opening Remarks”) at para 2.
(12) WJP Opening Remarks at para 7.
(13) Sundaresh Menon CJ, “International Mediation and the Role of the Courts”, speech to the Indonesian Judiciary (7 November 2023) (“Speech to the Indonesian Judiciary”) at para 7; Sundaresh Menon CJ, “The Role of the Courts in Our Society – Safeguarding Society”, opening address at the Singapore Courts’ Conversations with the Community (21 September 2023) at paras 31–32; and WJP Opening Remarks at para 9.
(14) World Justice Project, Measuring the Justice Gap: A People-Centered Assessment of Unmet Justice Needs Around the World (2019): https://worldjusticeproject.org/our-work/research-and-data/access-justice/measuring-justice-gap (“Measuring the Justice Gap”).
(15) For example, low levels of legal capability; problems accessing appropriate help; poor dispute resolution processes; geographical distance from courts or other resolution mechanisms; the cost of legal fees; and language barriers, among other issues: Measuring the Justice Gap at p 7. 
(16) For example, identity documents, land or housing tenure, and formal work arrangements: Measuring the Justice Gap at p 8.
(17) World Justice Project, Grasping the Justice Gap (2021) at p 5: https://worldjusticeproject.org/our-work/publications/working-papers/grasping-justice-gap. 
(18) Speech to the Indonesian Judiciary at para 7.
(19) NCMG Lecture at paras 67–68.
(20) UN Office of Counter-Terrorism, UN Global Counter-Terrorism Strategy (accessed on 17 December 2023): https://www.un.org/counterterrorism/un-global-counter-terrorism-strategy_gl=1*ynpzta*_ga*MTEwOTg2MjAzMC4xNjk5ODc1NTY4*_ga_TK9BQL5X7Z*MTcwMjEwMzA5NC4yLjAuMTcwMjEwMzA5NC4wLjAuMA..*_ga_S5EKZKSB78*MTcwMjEwMzA5NC4xLjEuMTcwMjEwMzI0Mi40Ny4wLjA.. 
(21) Such as the freezing of assets and bans on travel: see para 1 of UN Security Council Resolution 2610 (2021) (adopted on 17 December 2021).  
(22) UN Security Council, Office of the Ombudsperson, Status of Cases (accessed on 17 December 2023): https://www.un.org/securitycouncil/sc/ombudsperson/status-of-cases?_gl=1*p8tg9v*_ga*MTEwOTg2MjAzMC4xNjk5ODc1NTY4*_ga_TK9BQL5X7Z*MTcwMjEwMzA5NC4yLjEuMTcwMjEwNDAyMC4wLjAuMA.}