As usual, I am sometimes confounded by the logic - or lack thereof - on the part of our prime minister, Dr Mahathir Mohamad, when he lambasted the proposed resolution of the Malaysian Bar to set up an independent Judicial Services Commission for the appointment of judges on grounds that judges would then be afraid of lawyers because lawyers could determine their appointment and promotion through the commission. Hence, these judges, being beholden to lawyers, would lose their judicial independence.

There is a twist of facts here because the Judicial Services Commission is not supposed to be constituted of only lawyers but also judges and laymen who have distinguished themselves in public life and renowned for integrity.

In arguing that judges can be beholden to lawyers responsible for their appointment and promotion is to indirectly admit that they can be beholden to any person or body that appoints and promote them, which will include the prime minister himself whose advice currently has to be followed by the constitutional monarch making the appointment or promotion.

By any norm, legal or international, the expectation is the same - that there are less chances or possibilities of interference if decisions on appointment and promotion are made by an independent body of different interests and expertise (themselves appointed based on repute, character and public record) having no extraneous interest in the judges appointment rather than one man, the prime minister, no matter how wise or supposedly impartial he is reputed to be but who may or may not have an interest in the outcome of a case with political implications. This is common sense.

Here Mahathir distinguishes the government from the lawyers. He said that judges interfaced with trial lawyers daily, unlike the government, which made the appointment and then left it to judges to continue with their work.

Most time I am sure the government would not be bothered with the daily disputes of the rakyat (citizens) adjudicated through the courts. But what about cases of political implications that do not occur daily but once in a while, such as the case against ex-deputy premier Anwar Ibrahim, election petition case against Wee Choo Keong in 1995, cases on ISA detainees, allegations of police abuses as well as corruption of well-connected businessman? Can't the politician affected find time off from his or her busy schedule to do a little interference?

Judges may interface with trail lawyers everyday but for lawyers to want to influence judges to benefit them as a class, the assumption has to be that lawyers are united and identified with common interest that they seek to advance through influencing judges.

Lawyers ply their work through courts that their clients and the public will have recourse to only if they believe in an impartial and fair judiciary. So, as a class, yes, lawyers have a common interest in judiciary independence without which their clients will not go to court and there is no work engagement. Other than independence of judiciary, lawyers have no other common interest when they fight everyday like adversaries in court and compete over a common pool of fee-paying clients.

Section 42 of the Legal Profession Act specifically calls on the Malaysian Bar to express its views on all matters affecting the administration and practice of law, which implies the corollary duty to uphold the cause of justice, it is entirely appropriate that the Bar responds to this call of duty to move and deliberate on the proposed resolution touching on judicial appointments. It cannot be the bastion of independence if it shirks on this issue.

In contrast, there is no law or regulation that calls on the prime minister representing the executive to do likewise (to carry the burden of ensuring legal justice). This, notwithstanding, the least he could do is not to impute bad intention on others like the Malaysian Bar that unlike the prime minister, has to carry that burden of ensuring an independent judiciary to stand in as a bulwark between the government (and the prime minister) and the citizenry to safeguard the latter's rights in accordance to the dictates of Legal Profession Act, democratic tradition and Malaysian public expectation. .

I dare not, of course, make any allegation that either judges or the prime minister is susceptible to bias on any occasion past or present, but the institution of an independent Judicial Services Commission will lessen the public perception of possibility of bias and exculpate as well as shield the honourable judges and prime minister from being alleged of bias in the future when they are not biased. Isn't this an obvious 'win win' benefit to all?

This is where an independent Judicial Services Commission to bolster the image of judiciary as independent becomes beneficial to both the citizenry and government alike.

And as the prime minister makes his exit this month, we thank him for his contributions, wish him luck and invite him to reflect that whilst the country has so far thrived according to his tremendous energy and will, it is about time he lays the groundwork, after his exit, that it should be managed by institutions in check and balance - as there is no promise that there will be another clone or replica of Dr Mahathir who could micromanage the country by sheer will and personality independent of institutional check and balance.