I also take issue with the writer's contention that freedom of speech does not give the Bar the right to condemn the judiciary or others with impunity. The Bar has never criticised or condemned any one without basis or foundation.

It is the right of the Bar to take any position that it deems fit in upholding the cause of justice without fear or favour, unpalatable as it may be to certain quarters.

The writer has also alleged that the proposed EGM would be ultra vires the Legal Profession Act 1976. That position was taken by the Court of Appeal in Raja Segaran's case in light of its finding that discussions about the conduct of judges is beyond the purview of the Bar and more importantly, the public.

From a cursory reading of section 42 (1) of the 1976 Act, the Bar has more than ample powers under sub-sections (a), (d) and (g) to call for this EGM.

The Act, unfortunately, does not define such stirring words like "uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour" or "to express its views on matters affecting legislation and the administration and practice of the law in Malaysia" or "to protect and assist the public in all matters touching, ancillary or incidental to the law", for the benefit of pedantic persons.

In fact I doubt that it was the intention of Parliament to give any specific definition to these words in the Act. In order to avoid any further criticism from the writer, sub-section (d) to section 42 (1) of the Act, is prefixed with the words "where requested to do so," - to express its view on matters affecting legislation and the administration and practice of the law in Malaysia.

However, relying on the authority of the Supreme Court in the case of Dato Mohamed Hashim Shamsuddin v Attorney-General, Hong Kong and the case of PP v Chu Beow Hin , the use of the punctuation is significant in that even where the Bar is not requested to do so, it can still express its views on the administration and practice of law in Malaysia.

Therefore, I am of the view that there is nothing illegal in the Bar Council calling for an EGM to discuss the appointment and promotion of judges as this is part and parcel of the administration of justice.

Furthermore, it is of benefit to the public and in the public interest that the best judges in terms of integrity, experience, competence and conduct are appointed to the bench. It is further imperative that in upholding the cause of justice, judges dispense justice without fear or favour and without interference from any quarter.

Public scrutiny

While is true that the Bar has no role to play in the context of Article 122B of the Federal Constitution, that does not mean that the Bar is precluded from calling for reform of the system of selection and appointment of judges to the superior courts.

The appointment and promotion of judges should be transparent and the subject of public scrutiny. In this respect, the writer and others should read the three consultation papers published by Lord Falconer of Thoroton, the UK Secretary of State for Constitutional Affairs on 14th July 2003 which calls for the creation of an independent legal appointments commission for England and Wales that will recommend judges for appointment and promotion with the freedom if it wishes to set equality targets to open the judiciary to more women, ethnic minorities and younger people.

What is most interesting in these proposals is that the judicial appointments commission will choose the judges up to and including the Court of Appeal. The British Government favours a commission of five judges, five lawyers and five lay people.

For the High Court and below, the commission will put forward one name to the constitutional affairs secretary and under the "severely circumscribed ministerial discretion" model favoured by the government, the minister will make the appointments on the recommendation of the commission but will have the right to reject the name and ask for another.

In order to ensure accountability, rejections and reasons for them would be spelled out in an annual report. For promotions to the Court of Appeal and for senior "heads of division" appointments, the minister will be able to consult senior judges as well as taking the commission's advice.

The reforms are designed to enhance the way the judiciary is kept separate from the state. The reforms also propose to put the constitutional affairs secretary under a statutory duty to safe guard the independence of judges.

The writer also went to great lengths to defend the decision in the case of R v Almon . In fact, the High Court of Australia in the case of The King v Nicholls declined to follow R v. Almon and Griffith C.J. said "It is said by Mr Weigall that they suggest a want of impartiality, but we do not find that in them, and I am not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessary a contempt of court.

Similar protection

On the contrary, I think that if any judge of this court or any other court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors, or any class of suitors in the impartiality of the court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would so far from being a contempt of court, be for the public benefit, and would be entitled to similar protection to that to which comment upon matters of public interest entitled under the law of libel".

In the case of Baradakanta Mishra v The Registrar of Orissa High Court & Anr ., the Indian Supreme Court also expressed its doubts about the case of R v Almon in colourful language where it said "It is a moot point whether we should still be bound to the regal moorings of Rex v Almon ".

In fact there is grave doubt as to whether this species of contempt of court, namely, scandalising the court should still be resorted to in this day and age given the importance of fundamental constitutional freedoms like freedom of speech and expression, and freedom of the press in any democratic society.

In fact in the case of MacLeod v. St Aubyn , Lord Morris observed that "committals for contempt by scandalising the court itself have become obsolete in this country.

Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them".

Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice. If a judge is defamed in such a way as not to effect the administration of justice, he has the ordinary remedies for defamation if he should feel impelled to use them.

It seems, therefore, that there are two primary considerations which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by scandalising the court itself.

Path of criticism

In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice.

It is not by stifling criticism that confidence in courts can be created. The path of criticism is a public way per Ambard v Attorney-General for Trinidad & Tobago .

This view was reflected again in the obiter of the Court of Appeal in the case of Majlis Peguam Malaysia & Ors. v. Raja Segaran a/l S Krishnan , where Gopal Sri Ram JCA, in language of great clarity that his Lordship is well known for said "Suffice to say that the defendants were exercising their bona fide constitutional right.

The writer took me to task for relying on this obiter as if it were the ratio of that case. Permit me to say that today's obiter can become tomorrow's ratio. This has been borne out many a time in the past when dissenting judgments and obiter pronouncements have become the ratio of a later decision by the courts.

Therefore, it is premature for the writer to speculate as to how the Court of Appeal will decide on this issue of fundamental importance to the independence of the Bar, until the Bar files an appeal against the substantive judgment in Raja Segaran's case that has yet to be delivered by the learned High Court judge in question.

The writer also referred to the New Zealand case of Solicitor-General v. Radio Avon Ltd . but failed to mention that the Court of Appeal also said "The courts of New Zealand, as in the United Kingdom, completely recognise the importance of freedom of speech in relation to their work provided the criticism is put forward fairly and honestly for a legitimate purpose and not the purpose of injuring our system of justice".

The writer has failed to show how the proposed EGM is going to undermine the administration of justice or injure the system of justice in Malaysia.

The writer has made sweeping statements to the effect that the Bar is hoodwinking the public; seeking to sow the seeds of disaffection against the judiciary; misinforming and misleading the public; is scandalising the court and is in contempt of court.

I fail to see how any of these bare assertions, allegations and catastrophic consequences can flow from a harmless discussion among members of the Bar about the selection criteria and processes involved in the appointment and promotion of judges.

Not casting aspersions

The Bar is not calling for the removal or demotion of certain judges; nor is it alleging any misconduct on the part of some of the judges who were appointed or promoted; nor is it casting any aspersions on any of the judges appointed or promoted; nor is it challenging the legality or otherwise of the appointment and promotion exercise.

Therefore, I fail to see how the Bar is inciting disaffection against the judiciary. If that were the case, the Public Prosecutor would have filed charges against the Bar Council under sections 3 and 4 of the Sedition Act 1948 by now.

The same applies to the alleged contempt of court. The Attorney-General could have moved the Court by now or the Court itself could have moved of its own motion if it felt that the Bar Council had committed an ex facie contempt of court by calling for the EGM.

The Bar has until now refrained from taking a formal position on the appointment and promotion of judges for the simple reason that after stating its views on previous occasions in public and private, it was hoped that the entire system would become more transparent and accountable.

Alas, that has not happened. Therefore, the Bar Council has now rightly decided that the Bar should take a formal position on this matter and make recommendations to the government and the judiciary on the need for an independent judicial appointments system that is transparent and accountable.

I do not see any reason for the Council to approach the Chief Justice or any body else to discuss this issue before the general body has taken a stand on it. After the EGM, the Council can perhaps prepare a consultation paper for discussion with the judiciary and the government on the proposed reforms.

The writer is wrong to say that judges are not being heard on this issue and they are not being allowed to ventilate their views and opinions. The judges through the senior judiciary have access to the Bar Council. They can state their position if they so desire and the Council can put forward its views.

But, the EGM is essentially for members of the Bar to take a position on the need for reform in the appointment and promotion of judges. It would be a grave injustice and fundamentally wrong to prevent the Bar from discussing this issue on the pretext of some imagined slight to certain judges or the judiciary in general.

Servant of justice

The Bar has never claimed to be the custodian of justice. Instead, it has always taken the position that it is a servant of justice. It has a statutory duty to uphold the cause of justice; to preserve the independence of the judiciary and endeavour to create an efficient and effective system for the administration of justice for the benefit of the public.

I concede that the Bar has other duties as well namely to enhance the professional standards and conduct of its members but that does not mean that the Bar should be relegated to the role of some social club or association and remain silent when the rule of law is undermined and diminished to the extent of making our constitutional rights and freedoms an illusion.

The courts play an important role in any democratic society...As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned...But the courts are not fragile flowers that will wither in the hot heat of controversy".

Judges as persons, or courts as institutions are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are indentified with interests of justice they may forget their common frailties and fallabilities.

There have sometimes been martinetts upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity.

Therefore, judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however, blunt...Courts and judges must take their share of the gains and pains of discussion which is unfettered except by the laws of libel, by self-restraint, and by good taste.

Cannot reply

Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms.

We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done".

This ratio of Lord Denning was approved by the Supreme Court in the case of Lim Kit Siang v. Dato Seri Dr. Mahathir Mohamad where it was held at first instance by Harun J, that "The right of every individual (including the Prime Minister) to freedom of speech in this country has been consistently upheld by the Courts subject only to any restrictions that are prescribed by the Constitution itself.

There is no reason to deny that right to the respondent in the instant case. The Court should not be over sensitive to criticism".

The arguments speak for themselves. The Bar should not be fettered in its right to hold this EGM for the sake of political correctness for what is at stake here is freedom of speech itself and nothing else.

As for public perception of the judiciary, res ipsa loquitor, the writer only need to refer to the reports by the UN Human Rights Commission, the International Bar Association, the Commonwealth Lawyers Association, the US State Department, the EU Commission and last but not least Amnesty International to reach his own conclusions.

Bar EGM: The real motive (Part 1)

GERARD LOURDESAMY is a partner in a law firm and has been in legal practice for some 10 years.