opinion The revelation by justice Muhammad Kamil Awang in his judgment in the Likas election petition that he did receive a directive over the phone that the petition should be struck out is a matter of serious concern for the independence of the Malaysian judiciary.

The words `directive and that he was determined "to truly act as a judge and not a 'yes man'" in the judgment imply that the call must have been from someone superior to him and the judge knew the identity of the caller.

I have in the past heard of similar directives being given to judges in other cases. This is the first time in recent years that a judge has exposed such interference in the course of a judgment.

While the judge's courage and independence in the matter are highly commendable yet the judge should, in public interest to promote and protect judicial independence, report the incident and disclose the name of the caller to the competent authorities for full investigations.

Similarly, other judges who received similar directives in the past, including those who complied with such directives, should also come forward and disclose the instances to the competent authorities.

The Chief Justice himself could initiate such an investigation and thereafter call in the relevant competent authorities, if necessary. Such an initiative will not be seen as an interference in the independence of judges.

Interference in the independence of the judiciary as an institution or the independence of individual judges is a serious matter. It undermines the very essence of the rule of law. In some countries the punishment is severe for such interference. In one country the Constitution provides for loss of public office, if the interference is from a public official.

Principles 1 and 2 of the United Nations (UN) Basic Principles on the Independence of the Judiciary provides:

1) The independence of the judiciary shall be guaranteed by the state enshrined in the Constitution or the laws of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2) The judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. (emphasis added)

Cannot interfere

Similarly Principle 3(a) of the Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia region provides (signed by 34 Chief Justices in the Asia Pacific region including the then Malaysia's chief justice Eusoff Chin) :

3(a) The judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source.

Principle 6 of the Beijing Principles further provides:

6. In the decision-making process, any hierarchical organisation of the judiciary and any difference in grade or rank shall in no way interfere with the duty of the judge exercising jurisdiction individually or judges acting collectively to pronounce judgment in accordance with article 3(a). The judiciary, on its part, individually and collectively, shall exercise its functions in accordance with the Constitution and the law. (emphasis added)

This means that even a chief justice cannot interfere in the adjudicative process of a cause before individual judges or judges adjudicating collectively in the appellate courts.

In the light of the above principles and to restore the full confidence of the public in the Malaysian judiciary it is imperative that Justice Muhammad Kamil Awang's revelation be fully investigated and the public be informed of the outcome.

PARAM CUMARASWAMY is the United Nations Special Rapporteur on the Independence of Judges and Lawyers.