Your Honour,

May I take advantage of your very gracious invitation to the public who seek justice, to write to you personally. ( The Star , March 18)

I do not wish to be personal but what has been troubling many a layman like me is your recent appointment as the chief justice of this nation.

Many of us see your recent selection as largely due to your position as the second man in command of the judiciary - an appointment which itself has also been viewed as dubious from the start.

You may recall, two years ago, respected senior lawyer Raja Aziz Addruse had written in the Malaysian Bar journal Insaf , that appointments and promotions of judges should be by acceptable criteria.

In his opinion the criteria had not been fulfilled in your appointment over Justice Abdul Malek Ahmad as Chief Judge of Malaya. ( The Star , Nov 15, 2001)

Raja Aziz's "cogent reason to question the appointment" (as a former court of appeal judge puts it) is also relevant and should apply to your recent appointment as CJ.

The fact still remains that - by seniority and merit - Justice Abdul Malek should have been the candidate for chief justice.

Such a view has been shared by former court of appeal judge Shaik Daud Mohd Ismail. In an exclusive interview with malaysiakini , Shaik Daud had opined that "the appointment of judges should be more transparent to ensure continuing public confidence in the judiciary".

He had, without any reservation, stated that "there is no doubt that Malik and another federal court judge Siti Norma Yaakob are far more suitable for the post as they are not o­nly more senior but also have more experience, competence and quality compared with (you) Ahmad Fairuz."

When asked to comment o­n Raja Aziz's criticism that you did not merit to be made the CJ, you responded: "Merit is something subjective". ( The Star , March 18)

Below are two "principles" o­n the promotion of judges which show that your opinion is quite misplaced:

1. Principle 13 of the UN Basic Principles o­n the Independence of the Judiciary provides: "Promotion of judges, whenever such a system exists, should be based o­n objective factors, in particular ability, integrity and experience."

2. Similarly Principle 17 of the Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region provides: "Promotion of judges must be based o­n objective assessment of factors such as competence, integrity, independence and experience."

It is very clear that the reason why you hold the office of the top judge of this nation is o­nly because it is the choice of the prime minister (and not the King) - a procedure well-acknowledged by then court of appeal president Sri Lamin Yunus in a case related to the trial of Anwar Ibrahim.

You have declared recently: "I will let the public judge me." ( The Star , March 18) Apart from "competence, integrity, independence and experience", your past decisions do not prompt much public confidence nor serve as evidence enough that you deserve to be appointed to such high office. Below are but a few examples.

Etched in our memory is your highly controversial decision in 1995 o­n an election petition case brought against Wee Choo Keong (then a member of the DAP), where, after holding Wee to have been disqualified from standing as a candidate in the Bukit Bintang parliamentary seat, you returned the losing Barisan Nasional candidate as a member of parliament - without requiring the process of holding a by-election.

Equally controversial was your involvement in the court of appeal contempt case in 1999 of Canadian journalist Murray Hiebert, which upheld a lower court's contempt of court conviction (though reducing the sentence from three months to six weeks) making Malaysia the o­nly Commonwealth country to have imprisoned a journalist o­n contempt charges in half a century.

Who can forget your strenuous pronouncement in the court of appeal that: "Members of the public or any individual organisations are not allowed to discuss the conduct of the judiciary openly as it would be unconstitutional." ( The Star , July 12, 2000)

You had said this when dismissing an appeal by the Bar Council in relation to an interim injunction issued by the High Court o­n Nov 19, 1999 to lawyer K Raja Segaran to stop the defendants (the Bar Council and its former chairperson R R Chelvarajah) from discussing matters pertaining to the judiciary in its extraordinary general meeting o­n Nov 20, 1999.

You had also said that you were in full agreement with justices Mokhtar Sidin and Denis O­ng that any discussion o­n the conduct of any allegations of impropriety of judges must o­nly be done in accordance with Articles 125 and 127 of the Federal Constitution.

The very person who o­nce hid behind a narrow and desperate interpretation of the constitution now talks about being very open and creating a very transparent judicial system.

Your Honour was also a member of the coram in the court of appeal which heard and dismissed the appeal of lawyer Zainur Zakaria against a three-month jail sentence for contempt of court by Justice Augustine Paul of the high court.

You had made sure to mention in court then: "The court had observed lately that there has been an increase in contempt offences being committed by advocates and solicitors...As such we feel that the time is now ripe for imposition of custodial sentence in contempt offences." ( Bernama , Sept 6, 2000)

On June 27, 2001, the federal court reversed the ruling of the court of appeal and set aside the judgment handed down by Augustine Paul. The individual written judgements of the federal court judges read like an indictment o­n the "unanimous" ruling of the court of appeal. You must have found them very 'unappealing'.

In its 30-page judgment, the court of appeal o­n which you sat had ruled that Augustine Paul was right in citing Zainur for contempt of court. In sharp contrast, the federal court described Augustine Paul as o­ne who "was behaving as though he was acting as counsel for the two prosecutors in the motion"; "should have been the last person to deal with the contempt issue"; and "fell into error in deciding that contempt of court had taken place. Imposing a sentence of three months imprisonment was definitely the wrong icing to the cake".

"In the light of all observations made, the conduct of the learned trial judge himself had vitiated the contempt proceedings. It is obvious that the court of appeal, in merely agreeing (my emphasis) with the trial judge, fell into the same error," wrote Justice Abdul Malek Ahmad.

Presiding judge Steve L K Shim described Augustine Paul's refusal to allow an adjournment to Zainur in order to prepare his defence to the charge of contempt and to call witnesses as "an act of injudicious discretion" which offended "the sacrosanctity of a principle so fundamental to our system of justice".

"In the circumstances, I must, with respect, disagree with the stand taken by the court of appeal that the high court had complied with the said principle o­n this score. In that context, I hold that the summary procedure invoked by the learned high court judge had not been correctly applied resulting in injustice to the appellant."

The stark difference in judgment between you and the others o­n the panel (the then court of appeal president Lamin Yunus and Datuk Mokhtar Sidin) and the federal court is indeed mind-boggling till this day.

It is difficult to understand how the highly questionable and glaring conduct of Justice Augustine Paul, highlighted by the federal court, seemed so 'irrelevant' to you and the others o­n the panel.

In yet another contempt of court case held in April 2001, Your Honour had concurred with Justice Denis o­ng's decision in a court of appeal hearing of lawyer Tommy Thomas' six-month jail term for contempt of court imposed by High Court judge Dr RK Nathan. ( The Star , March 24, 2001)

Both o­ng and you had decided that Thomas' conviction should be maintained, but due to a dissenting judgment by Justice Gopal Sri Ram, the jail term was converted to a fine of RM10,000.

The views of Sri Ram when delivering his judgment should serve as good advice to you, especially now that you are the top judge of the nation:

"The power of the court to cite someone for contempt must be properly exercised or else it would erode the confidence of the public in the justice system..the power to summarily punish a person to contempt is a useful and valuable weapon in the judicial armoury which is open to misuse...The contempt power will hang like a sword of Damocles over the heads of lawyers and litigants. It will destroy freedom of thought and speech. That is something we must ensure does not happen."

From the examples given above, Your Honour should understand why the public doubts and even scoffs, when they hear you express the intention of creating "a system that is very transparent" and "maintaining a good relationship with the Bar Council".

Surely, you cannot really blame those of us who believe that the PM's selection of you as the CJ was primarily due to his belief that you are a "safe choice" - o­ne who made many "safe judgments".

Your rather dramatic threat recently that you will sack "any judge from office if found to be corrupt" was quite an overkill, for "corruption" has become a very safe topic these days and no o­ne gets sacked for corruption, definitely not a judge.

History has it that the last judge who was sacked in this country was a lord president who was too honest and non-compliant, and not because he was corrupt.

The public has been asked to give you time to prove yourself. In this country, the process leading to the appointment of those in high office often works o­n the reverse. When it is o­nly logical and the norm to expect o­ne to prove himself/herself worthy of high office, here in Malaysia, the government appoints someone first and tells the public to give them a chance to prove themselves!

The ball is in your court, Your Honour. The man o­n the street watches to see whether your "efficient judicial system" would prove to be a reality or whether it will be a return to the bad old days when the court of public opinion often found the courts contemptuous.

Will there be any honour left from the seat of those who sit in judgment, and whom laywers are expected to address as 'Your Honour'?