The decision by the Bar Council to call an extraordinary general meeting on Oct 4 to discuss judicial independence and the attendant issue of the promotion of judges to our higher courts has resulted in a lot of people getting hot under the collar.

Some writers feel that it is beyond the powers of the Malaysian Bar to discuss the matter while others choose to differ - some even quoting the Legal Profession Act 1976 to justify their position, forgetting that any provision of any statute is always subject to differing interpretations as to scope, width, depth and other related aspects.

Obviously, all these interpretations are subject to a judicial decision. At the outset, let me just preface what I have to say by reiterating this cogent fact: the law is a profession. Being a profession, it is therefore self-regulatory. The Act is a stark recognition of this basic fact and provides for the self-regulation of the profession.

If anything stymies the self-regulation of the profession in that Act, then any responsive government will amend the Act to redress the situation. Indeed, it is in the interest of the country to do so.

Any responsible government will not set up any hindrance for the profession. An instance of such hindrance is the amendment to Section 46 made by a previous regime disallowing lawyers under seven years of practice to take an active part in the committee of the Bar Council.

Now, let me highlight just four points: the EGM decision of the Bar Council per se, the freedom of the Press, the freedom of expression, and the concept of judicial independence.

Firstly, on the EGM decision of the Bar Council. If the decision by the powers-that-be has been made on the right principles, then there is no need even for a meeting to discuss the matter. In fact, in that scenario, the decision will be lauded instead and not criticised, as is the case here.

That the Bar Council after, I am sure, protracted deliberations on the matter has chosen to call an EGM clearly reflects that something is amiss.

And something is certainly wrong when senior judges were bypassed to make way for their juniors to rise in the hierarchy, especially when the performance of these juniors are littered with a litany of mendacity that leaves so much to be desired.

With respect, the fact is that there appears to be a display of arrogance and/or contempt for public opinion on the part of the Chief Justice Ahmad Fairuz Sheikh Abdul Halim in the recent promotion exercise, because the Bar Council had clearly forewarned him of the dangers of a negative perception of the judiciary, both domestically and internationally.

The forewarning was not taken. The worst fears of the Bar Council were confirmed when the judicial promotions produced the virtual reality, if not the reality, of a system of rewards existing in the judicial service.

Indeed, here is a classic instance of the head of the judiciary shooting the institution in the leg, so to speak. It is an injury to the pack that is inflicted by none other than the leader of the pack, despite being amply forewarned!

As a youth studying in Penang, I used to admire judges such as the Ong brothers of Taiping (HT and HS) and Chang Min Tat, often going to the High Court after school to hear cases without even knowing how to make the requisite bow but knowing at least to maintain silence.

I also admired, from afar, judges such as Tun Suffian, Raja Azlan Shah, and even Eusoffe Abdoolcader. Like Chong Siew Fai, they were consistently good judges at whatever level they were in service. Alas, all of these good judges are dead, except Chang Min Tat, Raja Azlan Shah and Chong Siew Fai.

In fact, an overall evaluation of Malaysian judicial history since Independence in 1957 seems to reinforce the view that the Malaysian judiciary has been generally blessed with good judges, judges who may not be as pro-active as Lord Denning, but nevertheless judges who can make good, coherent and sustainable judgments that were generally accepted by the people and lauded by the media in the exercise of press freedom, my second point.

The concept of press or media freedom is a basic concept in a democracy. It is one of the checks and balances against the excesses that invariably envelope the exercise of power. Indeed, an economic wit once said that no one has ever been starved to death in a country where the press is free. Herein lies the importance of press freedom. Where the press is free, there is a tendency for all the democratic institutions or centres of power to carry out their functions within the parameters of the law.

The glare of adverse publicity that comes with any excesses suffices to act as a deterrent against such misconduct on the part of any power centre in a democracy. In fact, a favourite question among lawyers is: Who is to guard the guards?

I remember as a boy reading about a pre-Merdeka journalist, Henry Spencer Hall a.k.a. Sim Boon Chye from The Straits Echo in Penang, who wrote on a possible miscarriage of justice involving an accused who had been sentenced to hang. His analytical piece prompted a retrial for the accused who was subsequently set free!

Yes, the times, they are a-changing! Dare we, after more than 45 years of Merdeka, expect the same inquiry, the same analysis and the same expansiveness, from our press today? Or to frame the question another way: Do we have journalists today made in the same mould of Mr Ball?

And if so, do we have courageous editors who will publish these analytical pieces and be damned?

The experience of The Sun in December 2001 seems to point to positive answers for both questions. But the consequences appear to discourage the practice as I am aware that some of the editors who were laid off have still not found employment despite the noble objectives of Bernama which supposedly exists to cater for such contingencies.

Thirdly, the view that the Bar cannot discuss the concept of judicial independence because it is beyond its purview is puerile at best and mischievous at worst. In any democratic country, freedom of expression is upheld as a fundamental right, as a virtue in itself and as an end in itself.

This freedom is inalienable. This right cannot be given as licence by the state exercisable only as a privilege by the few who are so licensed. This freedom is only limited by the law of defamation.

As a wit once said in a figurative sense, my freedom to stretch myself only ends when my hand touches my neighbour's cheek. Viewed in that light, the freedom of expression is a very wide freedom indeed.

If readers will only recall, Voltaire once said that "I may disagree with what you have to say, but I shall defend to my death your right to say it." To Voltaire, the philosopher that fired the imagination for the French Revolution of 1789, this was not a mere exercise in rhetoric.

It follows that the Bar not only has a right to discuss the issue of judicial independence, but every Malaysian worth his salt has a right to do just that and much more if we Malaysians have a higher self-esteem as a human being and as a nation.

As for why Malaysians must do just that, we shall move to the fourth point of this article: the concept of judicial independence itself. Judicial independence is a concept that is related directly to the liberty of the individual vis--vis vast powers of the state.

It is also related to the concept of the rule of law in that the law, which must be taken to be speaking all the time, must always observe generality (of statutes to be passed in a correct manner), equality (for all within its jurisdiction) and neutrality (since it cannot be used to target any one person or group of persons).

The law is an instrument used by the powers-that-be to exercise social control and such control can only be legitimately exercised when it is properly used to pursue the objective of maintaining peace and securing justice for one and all so that the country will enjoy the stability to make economic progress.

Haven't we Malaysians heard of Martin Luther King Jr? In his inspirational letter from a Birmingham jail, he said that "injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly."

I shudder to think of the law being so prostituted that the people's faith in it is so eroded that they will not obey it. Then we will definitely have to contend with the Hobbesian fear of endless warfare between and among human beings.

I end by urging all Malaysian law-makers parliamentarians, state assemblymen, our learned judges and even our lawyers to ensure that our laws must be so designed on the strong foundation of serving the needs of the people since people were never intended to serve the needs of the law or the needs of politicians who succumb to the temptation of using the law to serve their motives.

Let the discussions on judicial independence and the promotion of judges be conducted in an atmosphere of human freedom and dignity.