The Bar Council today defended its proposal for an independent judicial services commission to handle future appointments of judges in the wake of Prime Minister Dr Mahathir Mohamad's acrid criticism of the idea.

Describing the proposal to be debated at tomorrow's Bar extraordinary general meeting as "unnecessary", Mahathir was quoted by Bernama as saying that even an ombudsman would not be totally independent as a result of personal judgment and thinking.

The prime minister added that appointments made by such a commission may leave judges feeling indebted to the Bar.

Contacted for an immediate response, Bar Council chairperson Kuthubul Zaman Bukhari said the Mahathir's fear was "misplaced".

"In the structure proposed by the Bar Council, only two out of eight members of the commission will be from the Bar."

The council, which represents more than 11,500 lawyers in the country, has proposed for the chief justice, the attorney-general, at least two senior judges, two senior legal practitioners nominated by the council and two members of the public to sit as members of the commission.

Kuthubul said Mahathir's logic that judges are indebted to those who appoint them implied that the current crop of judges would now be "afraid" of or indebted to the chief justice and prime minister, both of whom play a major role in their appointments.

Moreover, he said that an increasing number of Commonwealth countries are adopting the idea to ensure greater transparency in the appointment and promotion of judges.

"A commission is definitely better than a single person (an ombudsman)," he said.

He said the proposal was made in the belief that it can only enhance the independence of the judiciary in the interest of the country.

"This call is in tandem with the international trend of the establishment of similar commissions, such as in Canada, New Zealand and England."

Openly critical

Lawyers have been openly critical of the recent spate of promotions, which saw several junior judges being elevated to the Court of Appeal and Federal Court.

Chief Justice Ahmad Fairuz Sheikh Abdul Halim defended the appointments - particularly those of three judges Pajan Singh Gill, Arifin Jaka and Augustine Paul who were involved in ex-deputy premier Anwar Ibrahim's trials - as a decision based on ability, integrity and experience.

Joining the fray was de facto law minister Dr Rais Yatim, who was reported in today's New Straits Times chiding the council's open criticism of the recent judicial appointments as "purely political in nature".

Kuthubul charged that Rais' remarks were "wholly untenable".

"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."

The minister also accused the Bar of unprofessional conduct and said the lawyers had insulted and disrespected the King by challenging the recent appointments.

Judges are appointed by the King on the advice of the prime minister after consulting with the chief justice.

However, the Bar Council chairperson said going by Rais' argument, no legislation may be openly discussed and criticised because all statues are enacted with royal consent.

Rais also said the lawyers' show of respect in court when they appear before the judges later was "hypocritical", and asked those who criticised the promotions to cease from appearing before the said judges.

Kuthubul retorted: "The Bar has repeatedly stressed that the current discussion 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."

Quality and integrity

Meanwhile, DAP chairperson Lim Kit Siang said the government should not perceive the critical comments by the Bar Council as an attack against the King or the judiciary.

Saying that it is more of an effort to ensure a more transparent system of judicial promotions, he pointed out that the creation of a judicial services commission was a "world-wide phenomenon".

The United Kingdom, he said, adopted a new system of judicial appointment as it recognised the utmost importance of gaining the confidence of both the public and the legal profession in an independent judiciary.

"It has accordingly placed great importance on maintaining the quality and integrity of the judiciary by introducing a system that is open to public scrutiny," he said in a press statement today.

Lim, who is a politician-cum-lawyer, said it was time for Malaysia to have a more transparent judicial appointment process to restore public confidence in the judiciary.

"There can be differences in opinion as to whether the commission proposed by the council is the best way, but the government should encourage such proposals instead of castigating them."

Quoting Mahathir on claims that the judiciary's independence has been maintained through the existing promotions system, he said what the outgoing premier failed to mention was that the two instances cited were before his time.

Among Mahathir's claims are that judges, despite being appointed by the government, had still made rulings against the government such as sentencing a cabinet minister to death and jailing a menteri besar for corruption.

According to Lim, the two cases were before Mahathir became prime minister.

"During his 22-year tenure from July 1981 till now, there has not been a single case of a Barisan Nasional cabinet minister, menteri besar or chief minister being arrested and prosecuted in court, let alone convicted and sentenced," said the opposition politician.