I refer to your article yesterday, 'Lawyers defend right to hold EGM on judicial promotions'. This article quoted Bar Council chairperson Kuthubul Zaman Bukhari and former Bar Council chairperson Param Cumaraswamy saying that the EGM call to discuss the recent promotions of judges as not contemptuous.
I am shocked and puzzled as to the level of comprehension shown by these two leaders of the Bar on the law of contempt.
Additionally I am bewildered as to their interpretation and understanding of the High Court decision which was subsequently affirmed by the Court of Appeal and the Federal Court in the case of Raja Segaran (where leave was refused to the Bar in that case).
The terms of the interim order for injunction and the thrust of the judgment clearly holds that the Bar does not have the power under the Legal Profession Act to discuss matters concerning and/or relating to the judiciary. It is a creature of the statute and therefore must act within the confines of the provisions of the Act.
I challenge these two persons to point out particular provision in the Legal Profession Act that empowers them to conduct such a discussion.
As a matter of fact the Court of Appeal ruled that, where the Bar strays away from the provisions of the Legal Profession Act, it is committing an illegality.
Clearly, anyone can make a general statement but statements that emanate from a body like the Bar must be rational, mature and sound in law and principle.
A mere statement not backed by any clear authorities seems to be the order of the day with members of Bar these days. One cannot help but blame their leaders for setting such bad precedents.
I am more inclined to agree with Joseph as he has succinctly stated his arguments in a letter to malaysiakini that the Bar is acting ultra vires the Legal Profession Act and in so doing, is acting in contempt of court and also committing sedition.
Besides the above, my limited research also reveals that some of the matters arising out of the Raja Segaran's case are still pending and awaiting either trial, appeal or decision.
Have the Bar or its learned members ever heard of the subjudice rule? I am also told that the Bar has a contempt of court committee and I wonder what their thoughts are on these issues!
It appears that the Bar will go to extreme lengths to achieve its agenda even if it means side- stepping the Federal Constitution. The Bar is duty bound to protect the sanctity of the Federal Constitution, which it has clearly failed to do.
If the Bar is concerned about the process of appointment of judges as envisaged by the Federal Constitution and wishes to have a say in the process, then perhaps it should apply to register as a political party and win the mandate of the people to form government.
Perhaps then it can appoint its own judges and set up its own courts. Perhaps then it can give an appearance of 'independence and transparence' to the general public.
Until such a day dawns, the Bar must accept and acknowledge its limited role and powers and act accordingly. It must also acknowledge and accept that the noises that it makes does not rattle the giant that is there.
The Bar has many shortcomings that it has yet to put right. One such instance is that of a very junior member holding the position of treasurer. Why didn't seniority prevail here? Please, practise what you preach.
I am pretty sure the Bar is insidiously attempting to circumvent the interlocutory injunction order granted in the Raja Segaran case . The Bar and its solicitors must surely be aware that the terms of an order of the court cannot be read literally, but in tandem with the spirit of the order.
That order clearly ruled that matters concerning judges and/or the judiciary cannot be discussed in any fora, forum or platform save as stipulated in the Federal Constitution.
Until and unless that case is overruled by an Appellate court that is the law of the land and everyone must obey it. This is the most basic principle taught in foundation law courses lest members of the Bar have lost grip of their basics.
