This is in reference to the controversial remarks made by retired High Court judge, Datuk Muhammad Kamil Awang in his June 8 judgment on the Likas election petition.

The judicial decision made against the political establishment, and the judge's courage to make it should be praised because it evinced judicial independence and courage.

Whilst the decision is laudable, I agree that the remarks made by the judge in respect of the alleged direction from former Chief Justice Tun Eusoff Chin and the difficulties confronted by his children's application for temporary work permit and scholarship for post-graduate course are unfortunate and inappropriate as criticised by Prime Minister Dr Mahathir Mohamad and minister in Prime Minister's Department Dr Rais Yatim.

This is because these remarks are entirely extraneous to the legal and factual issues pertaining to the judgment in the sense that the judicial decision could have been made with the same outcome without reference to and support of these remarks.

Professionally, lawyers and judges look to precedent judgments like that rendered by Judge Muhammad Kamil for guidance as to law in either deciding or arguing their cases based on the facts before them. They are not interested in these extraneous remarks having no bearing on the law as applied to the facts.

The fact that these remarks had been made might give rise to suspicion that the judge might have been biased against the establishment that account for the outcome of the decision. There is an old adage - justice must not only be done but seen to be done. How could it be seen to be done if the judge had personal grouses against the authorities for rejecting his children's various applications? How can we be sure that these considerations did not affect his judgment?

What happens if this case becomes a precedent for any other judge in future cases to express in his judicial decision (that happened to be against the establishment) personal grouses that he is not happy with his remuneration, lack of leave and heavy workload due to unfair distribution of workload, etc.?

Can the integrity of such judgments stand?

It is also unfortunate that Judge Muhammad Kamil's remarks alone would give the party aggrieved by the decision (Datuk Yong Teck Lee) a basis to appeal on the procedural ground of possibility of bias (caused by the judge's unhappiness with the authorities) that might eventually lead to the decision being overruled on appeal even though on law and facts it was probably correct.

Being a judge, he should realise at the outset that in public life and the court, evidence is that which counts. (To say that the conscience is clear in terms of having done duty to God, Islam and the country will not suffice because the other side would claim his innocence based on same reasons, and unless we are God, we will still have to rely on evidence.) So what is the point of raising allegations based on telephone direction when the conversation was not taped as evidence?

Not only is the true culprit (if there was one) not ascertainable with conclusiveness of evidence (for which no public good is done) but indeed much harm would befall the institution of judiciary and administration of justice when public confidence of it is undermined by such allegations. Strictly, anyone who alleges a judge of interfering and obstructing justice and cannot prove it, is himself liable to be accused of contempt of court or sedition for undermining public confidence in the administration of justice.

To the detractors of the present administration who are fed up with the way Anwar Ibrahim's trials were conducted, whatever Justice Muhammad Kamil said would, whether supportable by evidence or not, be true. Still the demand for evidence for Anwar's case should in a civilised society be applied with equal passion in respect to Justice Muhammad Kamil's allegations.

If one is inclined to argue that as much as Anwar's guilt was determined without evidence, so in this case the validity of what Judge Kamil alleged is public knowledge and need not be proved, then there is no more basis to proceed with further rational discussion on this issue. There is simply no compass whereby one can determine direction to the truth if evidence is not important any more because of preconceived notions about judicial independence or lack thereof.

Justice Muhammad Kamil's explanation that his remarks were obiter dicta is not convincing.

The legal dictionary defines that legal and Latin expression as a judge's saying or observation by the way that, though may be inspired by the case, is not however directly bearing upon the issue of law or facts before him requiring a decision, and in respect to which the actual decision for the case may be rendered without reference to or affected by that broadside and by the way of observation.

Invariably, obiter dicta refers to corollary questions of law as applied to given facts and not personal grouses or sentiments about matters extraneous to the decision of the case.

In the enthusiasm to support judicial independence, Malaysians should not lose sight of objectivity to defend the indefensible remarks of Justice Muhammad Kamil.