Chief Justice Mohamed Dzaiddin Abdullah's call to the Bar Council to "refrain from treading in matters which are the prerogative of the Chief Justice from making any partisan call to initiate action" as reported in the media yesterday is, with respect, surprising and a little disturbing.

Independence of the judiciary is neither the right nor the privilege of the judiciary or its judges. The right to an independent court and an independent judge is the right of the citizens and in particular all the consumers of justice.

This is a fundamental human right protected under international law and constitutions of democratic states. Hence when this independence is threatened by any quarter, even by a judge, every concerned citizen has a right to comment and if necessary call the competent authority to take the appropriate action. It is his or her right which is violated. The legal profession has a particular interest in the protection of judicial independence.

Justice RK Nathan's remarks about Justice Gopal Sri Ram in the Penang High Court were not just an attack on the latter but in effect an attack on the Court of Appeal.

The ex-tempore judgment delivered by Justice Gopal was in fact the judgment of the Court of Appeal.

The concluding sentence in Justice Nathan's 'judgment', namely, "He must know that each time he makes a personal attack upon a judge in future a response will come swift and fast", could be perceived as a direct threat to the independence of the Court of Appeal.

Duty bound

In those circumstances the Bar Council was duty bound to speak up in defence of the independence of the judiciary and call for appropriate action to be taken. Paragraph 99(d) of the Draft Universal Declaration on the Independence of Justice (Singhvi Declaration) expressly provides that one of the functions of a Bar association is "to protect and defend the dignity and independence of the judiciary."

In any event the Bar Council's call in this instance was consistent with its past actions. In 1988 the Malaysian Bar won international admiration for its integrity and courage when it called for the removal of the then Chief Justice Hamid Omar over the Salleh Abas saga.

About two years ago the Bar Council called for action to be taken against Eusoff Chin over the New Zealand holiday saga.

The present controversy once again raises the need for an independent mechanism to receive complaints against judges. Though Malaysia has a constitutionally entrenched code of ethics for judges, breach of which could result in removal, yet there is not an independent mechanism to receive complaints, investigate and make appropriate recommendations to the competent authority.

Further, the present constitutional procedure provides only for removal of a judge, but there is no procedure to deal with misconduct falling short of the sanction of removal.

A code of ethics without an effective monitoring and enforcement mechanism will remain simply a set of pious platitudes.

PARAM CUMARASWAMY is the UN Special Rapporteur on the Independence of Judges and Lawyers.