The Human Rights Commission of Malaysia (Suhakam) is disappointed that the Federal Court chose to uphold a decision muzzling the public from constructive discussions on the impropriety of judges.

Suhakam secretary Ahmad Yusuf Ngah said that an opportunity was lost to debate and decide constitutional issues affecting the freedom of speech.

He was responding to the court's decision on Tuesday to dismiss the Bar Council's application for leave to appeal against the decision

"With such a dismissal the apex and most important court of the country lost an opportunity of importance and public advantage to deliberate and decide for the first time a grave constitutional issue..." he said in a statement today.

He said there appears to be an apparent conflict between Article 127 of the Federal Constitution (providing non-interference by Parliament with the judiciary), Article 125 (which provides the removal of a judge by a tribunal of judges and non interference by the Executive) and Article 10 on freedom of speech for everybody.

This is because the decision - upheld by the court - used Articles 127 and 125 of the constitution to deem discussions on serious impropriety allegations against judges as "contemptuous" and "seditious".

"Freedom of civil society to voice out constructive criticisms and to discuss important issues is consonant with democratic principles of good governance and accountability," said Ahmad Yusuf Ngah.

"The judiciary is a public institution, accountable to the people and as such, it should not shrink from legitimate criticism as it is a 'means of ensuring accountability'," he added.

Novel points

On Tuesday, Federal Court judges Pajan Singh Gill, Alauddin Mohd Sheriff and Nik Hashim Nik Ab Rahman dismissed the Bar's application leave, stating that "there was no novel points where further arguments would be an advantage".

The Bar wanted to challenge a Court of Appeal's decision which held, among other points, that the Bar Council and the Malaysian Bar decision to convene an EGM (extraordinary general meeting) to discuss allegations of impropriety against then chief justice Eusoff Chin was not within the ambit of the Legal Profession Act 1978 (LPA).

The court had rejected that Bar's explanation that the proposed EGM would uphold the cause of justice or protect the public in matters touching or incidental to the law.

It was of the view that the net effect would be to "censure the judiciary" while permitting discussion of the conduct of judges in flagrant disregard of Articles 125 and 127 of the constitution.

Meanwhile, Ahmad Yusuf also said that "criminal law and contempt proceeding" are not appropriate mechanisms for restricting legitimate criticisms of the courts.

He added that it was inconceivable that such discussion by the Malaysian Bar should and can attract punishment for contempt or be considered seditious.

"The court being the third pillar of a democratic society needs to uphold human rights and the rule of law and essential to this responsibility is accountability to society. This accountability should be judges by the conscience and the oath to defend and uphold laws without fear or favour."

He said constructive discussions of the judiciary and of any public institution should be accepted as part of the democratic system of governance and the public should not be muzzled from discussing the errant behaviour of judges