Malaysia today faces a crisis of public confidence of whether legal justice may be procured.

According to Jeff Ooi's blog , one in four lawyers are potential cheats, based on the number of disciplinary cases before the Bar Council. Let us not aggravate the crisis further in the administration of justice by controversial promotions of judges.

In this connection, Chief Justice Ahmad Fairuz Sheikh Abdul Halim's rebuttal misses an important point: that central to the administration of justice is public confidence, no matter how objective or contrariwise prejudiced to submit to it.

Though promotion of judges is the chief justice's prerogative, it would be better to eschew promotion of judges whenever their promotion is reasonably likely to engender public controversy by reason of negative reaction from certain sections of the public sympathetic to former deputy premier Anwar Ibrahim and who, no matter what, will perceive such appointments as a 'reward' for convicting him.

The point here is not whether the negative perception of these sections of the public is unjustifiable and unreasonable or the contrary.

The chief justice pointed out that "a good judge must not only be good in reading the law - their social conduct and good image are equally important", and further that "apart from being good in law - his personal life, the way he mixes with people, what people say about him... All these are important too to really make a good judge."

But that is precisely the point isn't it - that the prerequisites of "good image" and "what people say about him" are not consistent with a "controversial image" by reason of association with the unpopular Anwar decisions?

The old adage that 'judges must not only be free from bias but also be seen and perceived to be free from bias' holds true and is central to confidence of the public, or certain sections of the public, in the judiciary necessary for them to submit their disputes to it.

"In line with Principle 13 of the United Nation's Basic Principle Independence of Judiciary, ability, integrity and experience, amongst others, are the most important factors to be considered in appointing judges," the chief justice said.

That's true. Equally true however is that perception of ability, integrity and experience is inherently subjective and becomes questionable, and even controversial, when contrary reservations are expressed by others not less competent - in the eyes of the public - to adjudge such subjective issues.

In this respect, the public, not being familiar with the Byzantine nature of laws, is entitled to look to the Bar Council and senior lawyers for reference and guidance, and this is where the public understands that "some members of the Bar Council felt that some of the five most senior judges are as competent as those promoted today" - a courteous if oblique way of disagreeing with the present promotion line-up by passing them.

The argument that other things - like competence - being equal, seniority should count and tilt the balance in favour of promotion is logical.

Surely, the five most senior judges bypassed in promotion cannot be 'dead woods' and whose occupation of the bench for all these years has been tolerated and acquiesced to, in spite of their being 'dead woods'.

The chief justice also commented that it was unfair not to promote competent judges merely because they "have heard Anwar Ibrahim's case" and that such "view is unfair to the judiciary who had also made some favourable decisions and cited the case of Keadilan Youth chief Mohd Ezam Mohd Nor whose bail application was allowed by the Shah Alam High Court".

With all due respect, it must be pointed out that the case of bail being granted to Mohd Ezam by the Shah Alam Court will not be a forceful rebuttal against allegedly 'unfair' criticisms because Justice K N Segara who presided the Shah Alam Court was not the judge promoted and whose promotion is now the subject of public controversy.

Let's keep to the point here - Justice Segara's perceived attribute of impartiality as a result of Mohd Ezam being granted bail application should not logically be attributed as a justification to the benefit of those others responsible for Anwar's incarceration.

Returning to the central point here. It has been reiterated the umpteenth time by respectable members of the judiciary, the bar and jurists, reinforced by legal tradition that judges and their appointments, promotion, standing and public image should be non-controversial.

And it matters not that the controversies are based on facts and justification or just a product of an over-stimulated and biased imagination on the part of the public or a significant sector of it. It matters also not that the judges whose promotion has been received with public skepticism are actually persons of sterling integrity, impartiality and brilliant legal scholarship.

It alone suffices as a disqualifying factor if certain sectors of the public disbelieve these attributes even if the chief justice, with greater wisdom, thought to the contrary and knew better!

This is because whilst the chief justice's confidence in the judges promoted is important, the confidence of the public or at least certain sectors of it is even more important as an overriding consideration by reason of the fact that it is the members of the public - not the chief justice or judges - who are the subject and constituency submitting themselves to the courts for the administration of justice.

If their confidence is not secured, then they will simply not submit their disputes to the courts - no matter how qualified and fair the judges appointed in or promoted to the bench really are. These judges will simply have no work to show their fair decisions.

Worse still, on occasions when they do hand down a fair and brilliant judgment, certain sectors of the public will still stubbornly say the decision is unfair and ill-thought through.

This is no good. Whilst judges cannot afford to be bias or prejudiced, public prejudice and bias on the other hand is an accepted factor discounted, and for administration of justice to proceed smoothly, it has to work around this prejudice rather than resist, fight, chastise or ignore it.

The public is ultimately consumers seeking the purchase of the service of justice. The judge serving it must be perceived as unbiased according to the consumers' taste and prejudices.

The service would not sell if the consumers think otherwise no matter how impartial the person serving it. It defeats the fundamental premise of the justice business if consumers just don't buy on account of their prejudices. That's the bottom line of why controversial appointments or promotion should not be made.