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The Bar Council respectfully disagrees with Chief Justice Tun Mohamad Dzaiddin’s call to the Bar Council on 6 August 2002 'to refrain from treading in matters which are the prerogative of the Chief Justice, and from making any partisan call to initiate action'.

The Malaysian Bar has a statutory duty under the Legal Profession Act 1976 to assist the public in matters relating to law and the administration of justice. As the independence of the judiciary is very much a part of the administration of justice, the Bar Council as the representative body of the Malaysian Bar is clearly obliged to uphold the same. It cannot remain silent or do otherwise.

In addition, the independence of the judiciary, seen as fundamental to the proper administration of justice, is not the right or privilege of judges but the right of all citizens. Apart from being duty-bound to express its concerns, the Bar Council is therefore exercising its inalienable right under Article 10 of the Federal Constitution, available to all citizens in a democratic society, to express its views. It must be remembered that while being clearly an issue of public concern, the current debacle within the judiciary was thrust into the public domain, not by the Council, but by a member of the judiciary itself.

In any event, the stand of the Bar Council is not unprecedented. It is consistent with its past actions in defending the independence of the judiciary, as evidenced by its integrity and courage in calling for the removal of the then Chief Justice Tun Hamid Omar over the case concerning Tun Salleh Abas in 1988. The Council also called for action to be taken against the former Chief Judge Tun Eusoff Chin for the impropriety arising from his holiday saga with a lawyer. These actions of the Bar Council have been
endorsed by other international administrations of justice.

The Bar Council reiterates its statement dated 3 August 2002 that public confidence in the judiciary has been eroded and undermined by Justice Nathan’s conduct. The Bar Council has called for action to be taken as an expression of its allegiance to the cause of justice and fairness, uninfluenced by personalities.

The Bar Council further is of the view that the statement by Justice R K Nathan that each time a personal attack is made by a judge upon another judge in future, 'a response will come swift and fast' could be interpreted as a direct threat to the independence of the Court of Appeal.

The Honourable Chief Justice, despite having come to an apparent conclusion that Justice Nathan has in fact acted improperly, has dismissed all possibilities of a tribunal. Presently however, there is no halfway or alternative measure under the Federal Constitution on how to address the issue of judicial misconduct - it is for a tribunal, and a tribunal only, to decide what to do.

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