I refer to Joseph P's rather robust defence of his position that the Bar does not have the right to discuss the recent appointment and promotion of judges to the Court of Appeal and Federal Court in his recent letter to malaysiakini.

Suffice to say, I do not wish to engage in a legal discourse with the writer about the offence of "scandalising the court" which is a species of criminal contempt of court. Nor am I interested to discuss the merits or otherwise of some of the judges who have been appointed or promoted to the senior judiciary.

Nevertheless, I am constrained to reply to some of the scurrilous attacks made against the Bar by the writer and his use of less than temperate language in accusing me of being unable to make any argument of substance.

The point that the writer seems to have lost is the fact that the Bar is calling for this extraordinary general meeting (EGM) in order to advocate greater transparency in the selection process for the appointment and promotion of judges. The EGM is not being called in order to discuss the conduct of certain judges who have been appointed or promoted nor is it intended to question the integrity, competence and impartiality of certain judges.

Misconception

The Bar is merely concerned about the manner in which the selection process is done and the criteria that is used to make such selections. The Bar Council has taken the view that some senior judges who are as professional and competent as their peers who were promoted have not been considered for appointment or promotion to the senior judiciary notwithstanding their impeccable record and well written judgments.

The writer is also under some misconception that the Bar is challenging the appointment procedure as laid down in Article 122B of the Federal Constitution or the requisite qualifications for appointment as stated in Article 123 of the Constitution. The Bar Council has never said that the recent appointments and promotions to the senior judiciary are ultra vires these provisions or illegal. Therefore, there is no allegation of unconstitutional or illegal conduct by the appointing authority here for the writer to take issue with.

The writer's reliance on the decision of the Supreme Court in the case of Dewan Undangan Negeri Kelantan & Anor. v Nordin bin Salleh & Anor. is somewhat misplaced. I will come back to this case later in the context of fundamental liberties guaranteed in Part II of the Constitution and its application to the case of Raja Segaran.

As far as the brief judgment of the Court of Appeal in the case of 'In the matter of an application by Dato' Seri Anwar Ibrahim to disqualify a Judge of the Court of Appeal made in the course of the hearing of his appeal', the learned president's comment that "the appointment can no more be the subject of further argument" should be confined to the facts of that case.

The learned president certainly did not intend those words to mean that the appointment of a judge can never be the subject of argument outside the confines of that case. In that case it must be remembered that the appellant made an allegation pertaining to one of the presiding judges arising from certain deliberations by the Conference of Rulers prior to the promotion of that judge to the Court of Appeal.

In any event as I stated earlier, the Bar is not disputing the constitutional basis of the recent appointments and promotions.

Indian precedence

With regard to the decision of the Court of Appeal in Raja Segaran's case pertaining to the effect of Articles 125 and 127 of the Constitution, it is unfortunate that the court placed such great reliance on the decision of the Supreme Court of India in the case of C Ravichandran Iyer.

In fact, the Indian Supreme Court in the case of Brahma Prakash Sharma & Ors v The State of Uttar Pradesh took a different position on the contempt of scandalising the court in the context of certain Bar resolutions, but more importantly it did not take any sort of position vis-a-vis Articles 121 and 124 (4) of the Indian Constitution (in pari materia with our Articles 125 and 127 of the Federal Constitution) in restricting the right of the Bar to discuss the conduct of judges.

In fact the Supreme Court of India in the cases of P N Duda v P Shiv Shankar & Ors (regarding an alleged contemptuous speech made by the minister for law, justice and company affairs to the Bar Council), Sheela Barse v Union of India & Ors and in Re Shri S Mulgaokar took a robust view of the public right to criticise the administration of justice and judges.

In P N Duda's case, the court said: "Administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath of their office, that is to defend and uphold the Constitution and the laws without fear or favour. This the judges must do in the light given to them to determine what is right".

It added: "In the free market place of ideas, criticism about the judicial system or judges should be welcomed as long as such criticisms do not impair or hamper the administration of justice".

In Sheela Barse's case, the apex court in very strong language said: "The concept of public accountability of the judicial system is, indeed, a matter of vital public-concern for debate and evaluation at a different plane".

It added: "This is not to deny the broader right to criticise the systemic inadequacies in the larger public interest. It is the privileged right of the Indian citizen to believe what he considers to be true and to speak-out his mind, though not, perhaps, always with the best of tastes; and speak perhaps, with greater courage then care for exactitude. Judiciary is not exempt from such criticism. Judicial institutions are, and should be made, of stronger stuff intended to endure and thrive even in such hardy climate".

Confined to facts

In the case of Shri S Mulgaokar, the court said: "To criticise a judge fairly albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it. The court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community's confidence in that great process".

The other reason why I said in my earlier letter that the decision of the Court of Appeal in Raja Segaran's case should be confined to the facts of that case is because the court was deciding on whether the conduct of judges could be discussed outside the provisions of Articles 125 and 127 of the Federal Constitution.

Conduct in essence means behaviour and the Bar on that occasion wished to discuss the alleged misconduct of a very senior judge. The decision in Raja Segaran's case is in fact a judicial restraint on the right to freedom of speech and expression as provided for in Article10 (1) of the Federal Constitution.

Although, Parliament has the right by law to impose restrictions on this freedom in order to prevent contempt of court [see Article 10 (2) (a)], no written law as such has been passed by Parliament to deal with contempt of court. Therefore, reliance is placed on the common law as expressly preserved in Article 126 of the Constitution in order to punish for contempt.

Recently, in the case of Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd, the Court of Appeal rightly held "that the fundamental liberties guaranteed under Part II of the Federal Constitution, including Article 8 (1) should receive a broad, liberal and purposive construction".

The court added: "If access to justice is to be a fundamental liberty then it must be accommodated within Article 8 (1) of the Federal Constitution. Article 8 (1) is a codification of Dicey's rule of law. Article 8 (1) emphasises that this is a country where government is according to the rule of law. There must be fairness of state action of any sort, legislative, executive or judicial. No one is above the law. In Malaysia, is not the law made by Parliament that is supreme, it is the Federal Constitution which is the supreme law. In Malaysia, the ultimate constraints upon legislative power are not political but legal, that is to say that any law passed by Parliament must meet the fairness test contained in Article 8 (1)".

The court in this case correctly followed the decision of the Federal Court in the case of Dato Menteri Othman bin Baginda v Dato Ombi Syed Alwi bin Syed Idrus where Lord President Raja Azlan Shah (as his royal highness then was) said: "In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way - 'with less rigidity and more generously than other Acts' (see Minister of Home Affairs v Fisher [1979] 3 All ER 21)".

Decision a fetter

The other case relied upon was that of Dewan Undangan Negeri Kelantan & Anor.(supra), where the Supreme Court rightly stated: "In testing the validity of state action with regard to fundamental rights, what a court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory".

It added: "A constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not forgetting that respect must be paid to the language which has been used".

The court went on to say: "In construing constitutional documents it is axiomatic that the highest of motives and the best of intentions are not enough to displace constitutional obstacles. Whenever legally permissible the presumption must be to incline the scales of justice on the side of the fundamental rights guaranteed by the Constitution, enjoying as they do, precedence and primacy".

Therefore, the decision in Raja Segaran leaves much to be desired. The Court of Appeal imposed a fetter on the fundamental right to free speech and expression by imposing a restriction that is not expressly or impliedly found or provided for in Article10 (1) and (2) of the Constitution, namely, that the conduct of judges cannot be the subject of public discussion save and except in the context of Articles 125 and 127.

In light of the cases that I referred to earlier, the decision in Raja Segaran if not per incuriam, should be confined to the facts of that case. It is wrong for the writer to now argue that this decision is of a wider impact and not just confined to discussions pertaining to the conduct of judges.

Such an unreasonable and improper extension of the ratio in that case would certainly make the exercise of such a fundamental right as freedom of speech ineffective and illusory. (continued)


GERARD LOURDESAMY is a partner in a law firm and has been in legal practise for some 10 years