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The Human Rights Commission of Malaysia (SUHAKAM) views with disquiet the decision of the Federal Court on 11 October 2005 dismissing the Malaysian Bar’s application for leave to appeal against the decision of the Court of Appeal. With such dismissal the apex and most important Court of the country has lost an opportunity of importance and public advantage to deliberate and decide for the first time a grave constitutional issue of apparent conflict between two articles of the Federal Constitution which relate to the non-interference by Parliament with the Judiciary (Article 127 of the Federal Constitution) and the non-interference by the Executive (Article 125 of Federal Constitution, which provides for the removal of a Judge by a tribunal of Judges) and Article 10 on the freedom of speech for everybody. The same right is entrenched in Article 19 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The Court of Appeal has used Articles 125 and 127 of the Federal Constitution as did the High Court to ground as contemptuous and seditious, the injunction against the Bar Council from discussing the serious allegations of impropriety made against certain Judges.

Freedom of civil society to voice out constructive criticisms and to discuss important issues is consonant with democratic principles of good governance and accountability. 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”. (Article V(1) of the Latimer House Guidelines)

SUHAKAM is of the view that “criminal law and contempt proceedings are not appropriate mechanisms for restricting legitimate criticisms of the courts.” (Article V(1) of the Latimer House Guidelines) It is inconceivable that such decision by the Malaysian Bar should and can attract punishment and contempt or be considered seditious. "Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even outspoken comments of ordinary men." (per Lord Atkin in Ambard v A-G for Trinidad and Tobago [1935] AC 322)

The Courts, being a third pillar in 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 judged "by the conscience and the oath to defend and uphold the laws without fear or favour". (Re D.C. Saxena AIR (1996) SC 2481 [Supreme Court of India]) This is particularly so when constitutional issues such as the correlation between freedom of speech and conduct of judges in Articles 10, 125 and 127 of the Federal Constitution will be argued for the first time in the apex court and are matters which clearly fall within the appellate jurisdiction of the Federal Court.

Constructive discussions of the Judiciary and of any public institution should be accepted as a part of a democratic system of governance and neither the public nor any body of persons should be muzzled from discussing the errant behaviour of Judges.

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