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Comments published in today's (3/10/03) newspapers show that critics of the Bar Council's proposal of an independent Judicial Commission have not appreciated the true nature of the proposal.

The concern expressed by the Prime Minister is that judges will become "afraid" of or indebted to lawyers if appointments and promotions are to be decided by a Judicial Commission. This fear is misplaced, for many reasons. Firstly, in the structure proposed by the Bar Council, only 2 out of 8 members of the Commission will be from the Bar, clearly a minority. Secondly, if despite being a minority the aforesaid fear can be said to exist, then by the same token judges will be even more "afraid" of or indebted to other members of the Commission such as the Chief Justice, the Attorney General and senior judges. By the same token too, judges would now be "afraid" of or indebted to the Chief Justice and the Prime Minister. Thirdly, the composition proposed by the Bar Council has precisely provided for a balanced form of representations so that no single sector may dominate the process. Fourthly, the proposal is made by the Bar Council in the belief that it can only enhance the independence of the judiciary in the interest of the nation. This call is in fact in tandem with the international trend of the establishment of similar Commissions, such as in Canada, New Zealand and England.

Datuk Seri Rais Yatim's remark that the Bar's open discussion of issues relating to appointments and promotions in the judiciary is "purely  political", and amounts to "insulting the King", is wholly untenable. The reason offered by the Minister is that judicial appointments and  promotions are made by the King and therefore an open discussion or criticism would not be proper as that would be "questioning the action and decisions" of the King. This reasoning  clearly cannot be right, for, if it is right, then no legislation may be openly discussed or criticized because statutes are enacted with royal consent (which is no less an act of, or a decision by, His Majesty). The other remark of the Bar being "political" deserves no further rebuttal except to point out that political agenda do not nurture within a process of transparent debate among a body of thousands of persons of dissimilar and diverse political views, such as is clearly the case with the Bar. In fact it is the very strength of the Bar that open debate and diverse opinions are allowed and encouraged; and that no single person may force his views upon the others.

A third remark by the same Minister that judicial appointments and promotions are "a purely internal and judicial matter" is a most puzzling observation which ignores the role of the judiciary in a growing democracy such as Malaysia, and is a gross underestimation of the Malaysian public's concern and awareness of matters of public interest. All Malaysians today understand that the judiciary is a crucial national asset.

The Minister's recommendation that any lawyer who has reservations on the recent judicial promotion should cease appearing before those promoted judges will not be taken up by the Bar. That recommendation is akin to suggesting that any Kelantanese who disagrees with the PAS government should cease to reside in that State. Moreover, the Bar has repeatedly stressed that the current discussions at the Bar are not targeted at those judges who have been recently promoted, but rather are calling into question the process which saw so many senior judges being bypassed en bloc.

Dated 3rd October 2003

Hj Kuthubul Zaman Bukhari
Chairman
Bar Council