The recent war of words between Chief Justice Eusoff Chin and Minister in the Prime Minister's Department Dr Rais Yatim in the media has again placed the Malaysian judiciary in the spotlight, exposing the Bench to public scrutiny once more.

The controversy surrounding the CJ's holiday in New Zealand in 1994 in which Eusoff and his wife were photographed with lawyer V.K. Lingam and his wife could not have resurfaced at a more inopportune time for the judiciary.

To say that the Malaysian judicial system has suffered something akin to a public relations nightmare in the past few years is an understatement. Both international and local organisations have been unsparing in their criticisms of the judiciary following several key cases which have come up before the courts since the mid-1990s.

The criticisms recently levied at the judiciary by Rais and his suggestions for reform are not new.

In March last year, the Malaysian Bar called for an enquiry into "allegations of judicial improprieties, irregularities, indiscretions, misdemeanors, interference, judicial or other harassment and intimidation of lawyers by the use of contempt powers or otherwise, the criteria applied for judicial appointments, transfers and promotions, and allegations of unfair selective prosecutions".

This resolution, according to a Bar Council press statement dated March 25, was adopted at the height of the trial of former deputy prime minister Anwar Ibrahim on corruption charges following public disquiet about the way the wheels of justice were turning.

Subsequent to Anwar's conviction in April, the Bar Council along with local and international human rights groups criticised the manner in which the trial was handled. Then Bar Council chairman R.R. Chelvarajah stated that "the unusual manner in which the trial itself was conducted ... raised questions impinging on the administration of justice".

Chelvarajah cited examples such as the refusal of bail, the expunging of evidence given on oath, limiting the accused's defences, disallowing witness testimony and making rulings as to their relevance without hearing the testimony and the citing and threatening defence lawyers with contempt proceedings while in the exercise of their legal duties as raising questions of substantive law, practice and procedure infringing on the right to a fair trial.

The Bar Council was also concerned with the fact that a case of such importance and public interest was heard by a junior High Court judge. Justice S. Augustine Paul was promoted merely a few months prior to the trial and transferred to the Criminal Division of the Kuala Lumpur High Court from Malacca weeks before the start of the trial.

The Bar Council also expressed its concern over "the use of intemperate language by the judge" during the course of the trial.

The citing of Anwar's lawyer Zainur Zakaria for contempt of court in November 1998 was one of a string of controversial criminal contempt actions which were seen as attempts to muzzle criticism on the judiciary.

Zainur was sentenced to three months' imprisonment for filing an affidavit accusing the prosecution of attempting to tamper with evidence in the Anwar trial. A month later, lawyer Tommy Thomas was also sentenced to six months' jail for contempt for his statements made in The Star newspaper in 1996 pertaining to certain case judgments. Both Zainur and Thomas' sentences are suspended pending appeal.

Although it received a petition signed by 162 lawyers requesting an EGM to discuss the contempt cases, the Bar Council decided not to convene a meeting for fear of contravening the subjudice rules themselves.

In September last year, Canadian journalist Murray Hiebert's appeal against his conviction for contempt was dismissed but his sentence was reduced to a jail term of six weeks from three months.

This conviction was for statements made in his article about the civil suit brought by the wife of Justice Gopal Sri Ram against an international school published in the Far Eastern Economic Review in 1997. Hiebert had in the article noted that the lawsuit had progressed unusually fast in spite of a back-log of cases.

These contempt proceedings and custodial sentences have drawn international flak. Human Rights Watch called the Hiebert verdict an affront to the freedom of expression while the four international legal organisations involved in the "Justice in Jeopardy: Malaysia 2000" report criticised the use of contempt proceedings against lawyers as "a serious obstacle to the ability of lawyers to render their services freely".

According to a constitutional lawyer, who spoke to malaysiakini on conditions of annonymity, the rules of subjudice or contempt of court are restrictive because of its broad application. A person may be cited for contempt for any statement perceived to be an attack on the judiciary or the judicial system and is not limited to critique of cases pending before the court.

The "Justice in Jeopardy" report also voiced its concern over the increasing use of the law of defamation as a means of stifling criticism, in particular the defamation suit initiated against Param Cumaraswamy, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, based on his statements in the International Commercial Litigation magazine in 1995 alleging corporate interference in the judiciary.

The International Court of Justice has issued an advisory opinion upholding Param's right to immunity from legal proceedings in relation to acts carried out in the course of his duties as a UN rapporteur under the Convention on the Privileges and Immunities of the UN.

In spite of this, the Malaysian High Court, in October last year, denied Param's motion to dismiss the defamation suit and assessed him costs, stating that the World Court's decision was not binding authority. Param's case is now on appeal and judgment is expected to be delivered on July 3.

Taken in this light, minister Rais' call for a rejuvenation of the judicial system, including his suggestion for a reform of the system of judicial appointments, is timely. His remarks have reopened an avenue for debate on an issue which has remained dormant for some time for fear of running afoul of the law. This apprehension is reflected in the reluctance of lawyers to comment on the current controversy.

According to the lawyer interviewed by malaysiakini , fair comment is vital to maintaining a vibrant judiciary and such comment should not be inhibited by restrictive laws on contempt or threats of litigation for such remarks.

Restoring faith in the judiciary will not happen overnight but creating a space for constructive deliberations is certainly a step in the right direction.