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Bars EGM is to defend the independence of the judiciary

In a well-timed opinion piece prominently published on page 12 of the New Sunday Times , En Zaid Ibrahim criticised the Bar Council for calling an extraordinary general meeting (EGM) to discuss the process of appointment and promotion of judges.

Zaid's principal argument is that, while he agrees that the subject matter (of appointment and promotion of judges) is an important issue of public interest, he maintains that any "public remonstration" (such as, in his view, an EGM) would be "misconceived, childish, un-Asian and certainly counterproductive"; because being "confrontational" with those in power will get one nowhere. The right way to recommend any change in society, according to Zaid, is to approach those in power in a "professional, polite, non-confrontational and rational" manner; and hope to persuade them to make the change.

The reasoning, stripped bare, is that one should not publicly criticise those in power, for that will make them look bad. They will then be upset and angry with you, and are unlikely to make the changes you desire.

Made in 21st century Malaysia, I find this argument shockingly outdated and retrogressive. It is true (and rather natural) that nobody enjoys being criticised, even in private. Being embarrassed publicly is much less palatable. But the feature of public critique is an essential part of democracy. If one chooses to hold public office and enjoy the seat of power, one has to endure open criticisms (along with the receipt of praises). It is part of the job.

One is embarrassed only if things are not right. Otherwise it is the critic who gets embarrassed. That being the case, there is no reason to worry about embarrassment if things have been rightly done.

Even where an error has occurred, embarrassment can be avoided or quickly overcome if the wrong is put right, or if improvements are promptly made for the future. In a maturing society, nobody expects a perfect leader. A leader who acknowledges a shortcoming and takes immediate steps to improve matters will receive respect, not ridicule.

If Zaid's argument is right, Martin Luther King would have done his country a disservice by publicly proclaiming his dream. He ought instead to have made an appointment with his Congressman to privately share his vision. If Zaid's argument is right, Nelson Mandela would have to be called a stubborn fool who thought he could change his country through confrontational means. Again, if Zaid's argument is right, Aung San Su Kyi should apologise for speaking publicly all over her country instead of confining herself to quiet engagement with the powers-that-be.

There is nothing wrong with quiet diplomacy per se. It can sometimes work. What I do not accept is the notion that diplomatic engagements is the only legitimate way. In addition, Zaid has proceeded on the assumption that quiet engagement has not been tried by the Bar. This is a wrong assumption.

Not long ago, Zaid took the Kelantan state government to court over the constitutionality or validity of certain state legislation. The matter received wide publicity. In my view, Zaid had every right to have done so. I would not argue that he ought to have resorted to untiring engagement with the state government in a "polite" or "non-confrontational" way. He is perfectly entitled to publicly state his comments and objections. I would not call that an "outburst of emotions", nor a "combative approach".

Zaid attempts to make two other minor points. He says that the Bar lacks "credibility to suggest changes" to other institutions (such as the judiciary), because its own house is not in order. He is entitled to his opinion on the credibility of the Bar. Fortunately, he is not the lone judge on this issue. The Bar will, as it has always done, let the public judge its credibility. Secondly, his argument that one is not competent to make suggestions of another, unless one is flawless, is neither logical nor realistic.

At another juncture, Zaid argues, like some politicians have done, that once a government is democratically elected, then it must be allowed to do what it deems fit free from censure. The right of the citizens to comment censure is only at the ballot box. The absurdity of this reasoning is immediately obvious. It is strange why this argument was not raised when Malaysia applauded millions of American citizens who publicly opposed their democratically elected government's decision to invade Iraq?

One of the most cherished features of a true democracy is its permission of diverse opinions. I look forward to En Zaid Ibrahim attending the EGM and putting forward his views.

Lastly, Zaid seems to think that the Bar is holding the EGM "to ridicule judges". On the contrary, this EGM is being held, much like the celebrated EGM's of 1988 to defend the idea that the integrity and independence of the judiciary is paramount.

Sivarasa Rasiah

Advocate and solicitor, vice-president Parti Keadilan Rakyat

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