Increasingly these days the Bar Council is feeling like a neglected wallflower.
It says it was not consulted on the amendments to the Prevention of Crime Act 1959 tabled in Parliament last week and scheduled for debate in this one. Further, the Bar was not asked for its views on the recent promotion of judges to the appellate courts.
Home Minister Ahmad Zahid Hamidi responded by telling the Bar that it was invited but did not attend a forum on the amendments to the PCA held in the immediate prelude to the tabling of the PCA bill, although it is not quite clear whether such attendance would have constituted consultation from the Bar's standpoint.
The response from Chief Justice Arifin Zakaria (right) to the Bar's expression of regret at not being consulted on judicial promotions was that there is nothing in the law requiring the judiciary to consult the Bar.
"Nothing in the law states that we have to consult the Bar. We only ask them informally," Ariffin was reported to have said.
It would be an inappropriate law if it compelled such consultations, for that would pave the way for the play of interest and ambition in the consultative process.
At one time, the norm in these matters was more nearly what Arifin, in his reported remarks, referred to as consultations in a "loose sense".
There was a time when judicial luminaries would discreetly talk to senior and respected members of the Bar on the merits of this or that lawyer for elevation to the bench.
Mutual respect
There was even an episode when Raja Azlan Shah was the top judge in the brief period (1982-84) before he was installed as Sultan of Perak wherein he had wanted to elevate to the bench a lawyer who was seen to be close to him, having accompanied the judge on shopping trips.
A reputable lawyer, with the concurrence of the Bar, took it upon himself to write a letter to Raja Azlan explaining why the elevation of the particular lawyer would be seen as inappropriate, given that the man was seen to have hobnobbed with the top judge.
Raja Azlan took the advice and desisted from going through with the intended elevation.
It says it was not consulted on the amendments to the Prevention of Crime Act 1959 tabled in Parliament last week and scheduled for debate in this one. Further, the Bar was not asked for its views on the recent promotion of judges to the appellate courts.
Home Minister Ahmad Zahid Hamidi responded by telling the Bar that it was invited but did not attend a forum on the amendments to the PCA held in the immediate prelude to the tabling of the PCA bill, although it is not quite clear whether such attendance would have constituted consultation from the Bar's standpoint.
The response from Chief Justice Arifin Zakaria (right) to the Bar's expression of regret at not being consulted on judicial promotions was that there is nothing in the law requiring the judiciary to consult the Bar."Nothing in the law states that we have to consult the Bar. We only ask them informally," Ariffin was reported to have said.
It would be an inappropriate law if it compelled such consultations, for that would pave the way for the play of interest and ambition in the consultative process.
At one time, the norm in these matters was more nearly what Arifin, in his reported remarks, referred to as consultations in a "loose sense".
There was a time when judicial luminaries would discreetly talk to senior and respected members of the Bar on the merits of this or that lawyer for elevation to the bench.
Mutual respect
There was even an episode when Raja Azlan Shah was the top judge in the brief period (1982-84) before he was installed as Sultan of Perak wherein he had wanted to elevate to the bench a lawyer who was seen to be close to him, having accompanied the judge on shopping trips.
A reputable lawyer, with the concurrence of the Bar, took it upon himself to write a letter to Raja Azlan explaining why the elevation of the particular lawyer would be seen as inappropriate, given that the man was seen to have hobnobbed with the top judge.
Raja Azlan took the advice and desisted from going through with the intended elevation.
The episode underscored the cordiality that then prevailed between Bench and Bar and the mutual respect in which both parties were held.
This esteem was part of the panoply of what is understood by the concept of the rule of law, governed by a code of conduct more presumed than prescribed but no less flinty for being unwritten.
All this of course was poisoned by the impeachment of the then Lord President Salleh Abas in 1988 - the reverberations from that ghoulish episode being felt till this day.
In the era of the impeached Salleh's successors, Abdul Hamid Omar and Eusoff Chin, in the top berth of the judiciary, the relationship between Bench and Bar deteriorated until it reached its nadir at the revelation of judge-fixing in the VK Lingam videotape episode that was subject of a royal commission inquiry in early 2008.
RCI recommendations mothballed
Though the relationship between Bench and Bar recovered somewhat under the chief justiceships of Dzaiddin Abdullah and Zaki Azmi, the full restoration of mutuality of esteem would have been aided if action had been taken on the royal commission's findings on the Lingam videotape.
But the findings that had recommended legal action against a slew of responsible individuals were mothballed and the Bench-Bar healing process, initiated under the premiership of Abdullah Ahmad Badawi (2003-06), was prevented from reaching its desired end which was restoration of the status quo of the pre-Salleh impeachment era.
Recent decisions by the judiciary to allow retired judges to return to law practice and the allowing of the public prosecutor's function of the Attorney-General's Chambers to be privatised, to wit private practitioner Muhammad Shafee Abdullah's recruitment for the purpose of arguing the appeal of Anwar Ibrahim's sodomy acquittal, are actions not calculated to restore mutual esteem between Bench and Bar.
The philosophical underpinnings of the rule of law, the sacrosanct mantle in which it is draped, the quest to free the pursuit of justice from its potential quavers in ambition and interest - were not aided by those decisions.
Seen against this backdrop, the Bar Council's laments on the failure to consult it in the making of laws and judicial appointments are forlorn though not gratuitous.
This esteem was part of the panoply of what is understood by the concept of the rule of law, governed by a code of conduct more presumed than prescribed but no less flinty for being unwritten.
All this of course was poisoned by the impeachment of the then Lord President Salleh Abas in 1988 - the reverberations from that ghoulish episode being felt till this day.
In the era of the impeached Salleh's successors, Abdul Hamid Omar and Eusoff Chin, in the top berth of the judiciary, the relationship between Bench and Bar deteriorated until it reached its nadir at the revelation of judge-fixing in the VK Lingam videotape episode that was subject of a royal commission inquiry in early 2008.
RCI recommendations mothballed
Though the relationship between Bench and Bar recovered somewhat under the chief justiceships of Dzaiddin Abdullah and Zaki Azmi, the full restoration of mutuality of esteem would have been aided if action had been taken on the royal commission's findings on the Lingam videotape.
But the findings that had recommended legal action against a slew of responsible individuals were mothballed and the Bench-Bar healing process, initiated under the premiership of Abdullah Ahmad Badawi (2003-06), was prevented from reaching its desired end which was restoration of the status quo of the pre-Salleh impeachment era.
Recent decisions by the judiciary to allow retired judges to return to law practice and the allowing of the public prosecutor's function of the Attorney-General's Chambers to be privatised, to wit private practitioner Muhammad Shafee Abdullah's recruitment for the purpose of arguing the appeal of Anwar Ibrahim's sodomy acquittal, are actions not calculated to restore mutual esteem between Bench and Bar.
The philosophical underpinnings of the rule of law, the sacrosanct mantle in which it is draped, the quest to free the pursuit of justice from its potential quavers in ambition and interest - were not aided by those decisions.
Seen against this backdrop, the Bar Council's laments on the failure to consult it in the making of laws and judicial appointments are forlorn though not gratuitous.
TERENCE NETTO has been a journalist for close on four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them.
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