It is most unfortunate that High Court judge RK Nathan had allowed emotions to get the better of him when he devoted the final five pages of a 17-page written judgment in a completely unrelated, road-accident case to chastising Court of Appeal judge Gopal Sri Ram for "unwarranted personal attacks" on him.

This is because any judge, who is prepared to hold another for contempt of court, must equally realise that by so doing, he immediately places his own character and conduct as a judge under close scrutiny as an issue.

For the inevitable defence to a charge of impropriety towards administration of justice (contempt of court) must inevitably be that the judge is himself over-sensitive and over-reacting when he took offence.

Seen in this light, Justice Gopal's ex tempore comments that took a swipe at judges' "personal egos" and "vindictiveness" in open court against genuinely contrite and apologetic lawyers were arguably still very much within the parameters necessary for a legal decision on contempt for which he has no reason to be apologetic to anyone.

Indeed, Justice Gopal's refusal, so far, to be drawn into publicly defending himself against accusations leveled by his outraged 'brethren' is dignified. He also does not need to dignify such accusations with a public reply. Otherwise he would be committing the same mistake of descending into the arena of public controversy that he should, as a judge, remain above. Besides, his ex tempore comments on judges' "personal egos" and "vindictiveness" are already vindicated by the very same acrimonious criticisms of them.

Respecting the judge's chair is not synonymous with obsequiousness. As judges, like all human beings, are not infallible and can err, it will be a lawyer's first duty to vigorously stand up to the court when an overbearing exercise of judicial power threatens to trample his client's legal rights. This should not be blown out of proportion as to tantamount to contemptuous behaviour.

Now, the Malaysian judiciary has suffered considerably in its image in the wake of Salleh Abas' dismissal as judicial head in 1988, the holidaying by another subsequent other with a prominent lawyer in New Zealand, and the trauma of Anwar Ibrahim related cases.

Against this backdrop, it is the immediate task of our judiciary, under the stewardship of Chief Justice Mohamed Dzaiddin Abdullah, to restore public confidence and trust, that it can still play the independent role of a bulwark to protect citizenry from the encroachments of executive abuse of power.

It may then be asked: How could the judiciary check executive power wielders if it cannot even check judicial power wielders within its own ranks from being "contempt-happy"?

The assumption that respect for the judiciary can be won by shielding judges from criticisms by weapon of contempt proceedings is clearly out of sync with the mood of the times.

A curtailment of the lawyer's freedom of speech in court is an indirect curtailment of the citizen's constitutional right to counsel and such an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender more resentment than respect for the courts.

It will be construed by the public as just another form of tyranny — judicial tyranny — to add to the long litany of other tyrannies (executive, police etc.) by which Malaysians complain they are afflicted.

When the Court of Appeal on July 25 put a brake on Justice Nathan's contempt proceedings, it is because Justice Gopal correctly appraised the direction of Dzaiddin-led judiciary that in relation to public mood, confidence in the judiciary is faster recovered when democratic expression in the courts are encouraged than stifled by illiberal use of the "contempt weapon" in its judicial armory.

Justice Nathan obviously missed the point that, very often, criticism of and standing up to the conduct of a judge or palpably insufferable orders made by him, is not made with a view to diminishing the judiciary institution in public eyes but actually to enhance its prestige by criticising the erring judge or resisting his erroneous exercise of judicial power.

When Justice Nathan thus took offence, on a personal level, at Justice Gopal's remarks, and generated public controversy, he actually vindicated Justice Gopal's point that judges should not take criticisms too personally, and has now put himself in such an untenable position that the only honourable exit left might be to consider resignation.