I refer the letter by Gerard Lourdesamy, 'The Bar has the right to speak out', containing both dubious and controversial arguments.

His opinion, with its ringing phrases and picturesque language, is more rhetoric than a mature and considered opinion. Indeed, it refers little to examples of precedent or authority.

Many of his arguments were based on misconceived notions and false premises. For instance, the statement of the Court of Appeal in the Raja Segaran case to the effect that "the court would be loathe to conclude that the Bar did not have the right to discuss the conduct of judges" was not the real issue before the court.

The court was only concerned with the plaintiff's right to discontinue his suit in the High Court and if he had such a right, whether the trial judge was correct in exercising discretion to allow the plaintiff to do so. Other statements or matters were alien to these issues before the court.

Thus that statement relied upon by Gerard did not and cannot be the ratio of the case, and for a practising lawyer to scrape the bottom of the barrel to rely on such a statement to justify the Bar's right to call for an EGM on judicial appointments, speaks volumes of his ability to advance any arguments of substance.

It must also be remembered that the Court of Appeal in Raja Segaran's case, whilst considering the proper effects of Articles 125 and 127 adopted in toto the judgment of K Ramaswamy J in the Indian Supreme Court case of C Ravichandran Iyer and remarked :

"...the excerpt is clearly in line with logic. What is the point of providing articles 121 and 124(4) [125(2) and (3) and 127 Federal Constitution] if the discussions of the judge's conduct can still be held by other forum/fora? To us, it is repugnant to common sense to say that despite the two articles, other people other than the parliament can still discuss conduct of judges."

The effect of these statements must be considered in context. They are not confined to merely discussions on conduct of judges but are of wider impact. If there exist express provisions in the Federal Constitution, then it is of paramount importance that procedure be followed.

No one including the executive or legislature (much less the Bar) has the power to sidestep or whittle down what is expressly provided for, or envisaged by, the Federal Constitution. Any act which constitutes a deviation from the express procedure laid down in the Federal Constitution is clearly illegal and unconstitutional as it renders the said Article ineffective and illusory. (See the Supreme Court case of Dewan Undangan Negeri Kelantan and Anor v Nordin bin Salleh & Anor )

Insofar as the appointment of judges to the High Court, Court of Appeal and the Federal Court are concerned, the procedure is clearly laid down in Article 122B(1) of the Federal Constitution. That provision reads :

"The Chief Judge of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and the High Court shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers"

And Article 122B(2) reads :

"Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Judge of the Federal Court, the Prime Minister shall consult the Chief Justice"

The purport of Article 122B(1) has been succinctly explained in the Court of Appeal decision of un the matter of ' An Oral Application by Dato' Seri Anwar b. Ibrahim to Disqualify a Judge of the Court of Appeal (2000) 2 MLJ 481'. The Court of Appeal held that once the appointment of a judge has been made, "it can no more be the subject of further argument".

A close scrutiny of these provisions will evince that the matter of appointment of judges involving only the Yang di-Pertuan Agong, prime minister, the chief justice, and the conference of rulers with the Yang di-Pertuan Agong, having the ultimate appointing authority.

Nowhere in this Article can there be found a role for the Bar to play. By seeking a greater role or say in the appointment of judges, the Bar is clearly transgressing into a domain which it clearly has no role to play. This move by the Bar is an utter disregard to the clear provisions of Article 122B(1) and (2).

The Bar has a bounden duty to uphold the Federal Constitution as being the supreme law of the country. On this score, the Bar is clearly misguided and has failed to adhere to its fundamental obligation of upholding the sanctity of the Federal Constitution.

The Bar has also levelled allegations that junior judges have been promoted over more senior colleagues. Again this allegation is a fallacy and clearly demonstrates a lack of understanding of the qualifications of appointment of judges.

Article 123 stipulates that for a judge to be appointed to the Federal Court or the Court of Appeal, he must fulfill two criteria and they are :

1. He is a citizen; and

2. For the 10 years proceeding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the federation or of the legal service of a State, or sometimes one and sometimes another.

This Article does not include 'seniority' as one of the criterias for appointment. So long as these two criteria are met, any person can be appointed as a judge of the Court of Appeal or the Federal Court.

The Bar by harping on the issue of seniority, is attempting to add criteria of its own making to the Federal Constitution, hoodwink the public at large and sow the seeds of disaffection against the judiciary.

This is indeed a dangerous trend and if allowed to persist will necessarily undermine the public's confidence in the judiciary. The Bar is definitely misinforming or misleading the public.

And more importantly, an issue which Gerard has conveniently evaded, is the power of the Bar to undertake this "so called onerous mission". It has been pointed out by Chriss F , Rohani Ariffin and the Raja Segaran case that the Bar, being a creature of statute, is circumscribed in terms of what it can do.

Section 42(1) of the Legal Profession Act provides for the objects and powers of the Bar and is on equal footing like a memorandum of association of a limited company. The Bar has no right to overstep its boundaries and must undertake only matters that are expressly spelt out in that section.

The Bar cannot in its attempt to find a justification for its "uncalled for cause" stretch the express wording of that section. This appears to be what the Bar is doing, obviously, with colourable and tainted motives.

The Court of Appeal in the Raja Segaran case expressly declared that "this act of the Bar in trying to convene the EGM to discuss that proposed resolution is in fact an illegality" - a point with which Gerard again did not take issue.

The Bar of course was refused leave to appeal to the Federal Court. Clearly, what the Bar is seeking to do now is to again commit its members in illegal activities or ultra vires acts.

On the case of Almon, it is pertinent to point out that this case withstood the test of time and is still good law. I will go one step further and point out that the specie of contempt envisaged by Wilmont J has come to be known as "scandalising the court".

The rational for this branch of contempt lies in the idea that without well regulated laws a civilised community cannot survive.

It is therefore thought important to maintain the respect and dignity of the court and its officers, whose task is to uphold and enforce the law, because without such respect, public faith in the administration of justice would be undermined and the law itself would fall into disrepute.

Richmond P put the matter more succinctly when he said in the New Zealand case, Solicitor General v Radio Avon Ltd .:

"The justification for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined".

The doctrine propounded by Wilmont J was applied by Mr Justice Darling in R v Gray and the type of contempt envisaged by Wilmont J continues to exist in other jurisdictions, Solicitor General v Radio Avon Ltd and Re Wiseman (New Zealand); Gallagher v Durack and Fitzgibbon v Barker (Australia); AG v Wain (Singapore); S v Van Niekerk (South Africa); and R v Kopyto (Canada).

And more recently the Court of Appeal gave express endorsement to this species of contempt in Murray Hiebert v Chandra Sri Ram . Hence it is wrong in the light of these cases to suggest that the doctrine as espoused by Wilmont J in Almon is obsolete.

The Bar in calling for the EGM to discuss the promotion of judges is scandalising the courts and is clearly acting in contempt of court. It is absurd and irrational to suggest that the Bar is attempting to preserve the integrity and independence of the judiciary.

Quite to the contrary the Bar, by doing this, is undermining and exciting in the minds of the public a general disaffection. And whenever the public's allegiance is so fundamentally shaken, it is the most fatal and most dangerous kind of obstruction of justice and calls for immediate redress than any other obstruction whatsoever.

It must also be borne in mind that judges, by virtue of their office and position, are defenceless. They do not have a forum to voice or ventilate their grievances or opinion. They cannot descend to the forum to air their views or problems unlike the Bar. The Bar in purporting to claim that they are seeking to uphold the rule of law is again entangled in a web of confusion.

One of the basic features of Dicey's Rule of Law as very often highlighted by Gopal Sri Ram JCA is procedural fairness - i.e to accord any person the right to be heard. So fundamental a principle is this that it needs no reminding.

The Bar has not accorded this very right to the judiciary. Did any of the Council members approach the judiciary, namely, the Chief Justice formally or otherwise to express their views on the manner of appointment and selection of judges or on what criteria candidates should be selected before appointment. (If at all they have such a right!)

Did the Bar make an attempt to seek the views of the judiciary on its call for the EGM? Has the Bar undertaken a comprehensive study on the selection and appointment process of judges and presented the said report to the judiciary or executive for its consideration?

I am of the view that it is good practice and a matter of basic courtesy for the sake of maintaining healthy ties between the Bench and the Bar to seek the views of the judiciary prior to taking any drastic actions.

If the Bar has not done this, then its motives are clearly questionable. It seems to be on a war path against certain members of the judiciary and is clearly not interested to reform the process of selection and appointment of judges.

Again I wish to point out that if the Bar's real concern is to reform the process of selection and appointment of judges so that it too can have a say, then it should approach the executive and not vent its anger on the judiciary. The Bar should not bark up the wrong tree.

I am personally of the view that the moment a judge has been appointed, the matter ends there. Inherent in the appointment of a judge is the necessary qualification and competence which cannot be questioned. As a matter of fact, all the judges appointed to the respective courts are suitable and eminently qualified and no aspersions can be cast on these grounds as to do so will be scandalous.

I would also venture to say that of those judges recently appointed, one of them possess formidable qualities that no parallel can be found at least in this country. He has developed the adjectival law of evidence in this country and has earned himself the title 'Local Sarkar'.

His contributions in this area of the law cannot be disputed by anyone and has been widely accepted as a standard practitioners' text. Equally true are the numerous judgments he has written which more often than not develops the law in that area to greater heights.

The Bar also seems to be fond of hiding behind the veil of freedom of speech, a right which it claims to be absolute and overrides everything else. This is a fallacy. The right to freedom of speech is not an unbridled right and is not without restrictions.

It does not give the Bar a right to condemn and criticise the judiciary or others with impunity. It is conditioned upon other principles and is restrictive in its ambit.

Lastly on the claim that the Bar has a right to speak up for the public, this again demonstrates its lack of understanding of the basic principles. In Re The Evening News Newspaper , Sir James Martin CJ said :

"What are such courts but the embodied force of the community whose rights they are appointed to protect ? They are not associations of a few individuals claiming on their personal account special privileges and peculiar dignity by reason of their position. A Supreme Court like this, whatever may be thought of the separate members composing it, is the acceptable and recognised tribunal for the maintenance of the collective authority of the entire community it derives its force from the knowledge that it has the whole power of the community at its back. This is a power unseen but it is efficacious and irresistible and on its maintenance depends the security of the public."

Hence , the Bar cannot claim to be the public custodian of justice. It never and will not have such a right. The Bar do not occupy any privileged or higher position than ordinary citizens.

I would also like to find out the basis of Gerard stating that "public perception of the judiciary has declined tremendously since 1988". Has he or the Bar conducted an opinion poll to establish this? I am shocked that a practising lawyer like Gerard can make such sweeping and unsubstantiated statements. What the Bar need really be concerned are only matters enumerated in section 42(1) of the Legal Profession Act, 1976.

The Bar should look into ways to improve the standards of advocacy and practice among its members and the provision of better and efficient services to the public. And more importantly it should not overlook the welfare of its members.

The amount of RM75,000 which will be incurred in calling for the EGM can be better spent on other deserving matters. The calling of the EGM is a waste of members funds and also exposes members to potential claims for costs.

I am told that Raja Segaran's case will result in the Bar having to pay costs which may run into thousands of ringgit in the event that the Plaintiff succeeds in his civil suit. Can the Bar or its members really stomach this?