AG RETURNING FAVOUR TO JUDGE
PAUL?
19.01.2002
Strange things happen in Malaysian courts. The newly appointed Attorney
General (AG) (Gani Patail) made history by acting as defence counsel for a judge
(Augustine Paul) who faced legal action (contempt proceeding) from a
lawyer (Christopher Fernando). This strange event is unprecedented in
Malaysian history, and probably unprecedented in any democracy.
What makes this case so fascinating is that the same judge had earlier acted in
equally strange manner to jump convict Fernando’s co-defender (Zainur Zakaria)
in the Anwar case (former Deputy Prime Minister) for contempt of court. In
fact, Paul’s behaviour was so overtly one-sided that it prompted the Federal
Court (the highest court) to make the unprecedented rebuke that Paul had acted
more like the defence counsel for the prosecution (Gani Patail among them, now
promoted to AG), when Paul’s “contempt” conviction was quashed with
devastating criticism (on 28.06.01).
It is important to note that Paul convicted Zainur Zakaria for ¡§contempt¡¨
because Zakaria attempted to expose then Prosecutor Gani Patail’s alleged
attempt to fabricate evidence against Anwar by threatening Anwar’s pal (Nallakarupan)
with a death penalty. (Federal Court had taken Gani to task for not
answering this serious accusation. Gani has not done so to date.)
So Paul had protected Gani from potentially disastrous disclosure of a criminal
act, for which Paul stuck his neck so far out that he incurred the wrath of the
highest court. Now, it is Paul’s turn to be in the hot soup, for being
over-enthusiastic in slamming Anwar’s lawyer (Fernando) down with abusive
language; shouldn’t it be natural for Gani to return Paul’s earlier favour
by jumping to the latter’s defence, particularly when both of them were
alluded to be traveling in the same boat by the Federal Court?
But the trouble is, these two personages are not acting in their private
capacities as pals in this case, and paddling in the same boat again may land
them in deep waters. One is the chief legal officer of the Executive, and
the other is a judge in the Judiciary, which is an institution that is supposed
to be completely independent from the Executive. The latter’s complete
independence is of the utmost importance, for the duty of the Judiciary under
our democratic Constitution is that of an umpire, to ensure that all parties,
including the Executive are compliant with the Constitution and laws as enacted
by Parliament.
When a presiding judge is charged for committing a personal misconduct during a
trial, as in this case, can the AG act as the judge’s defence counsel?
The complainant said no, saying the AG has no discretion to act in this
capacity, and that the independence of the Judiciary would be comprised
otherwise.
However, AG Chamber is emphatic that it can do so. Its main arguments are
quoted from the press as follows:
I do not think the AG’s above arguments hold water, and my analysis is as follows:
1. Whether a person is appointed by the King is irrelevant in this issue. Any King’s appointee found breaking the law is liable to be convicted. And the AG is certainly not given the discretion to defend any law-breaker, purely on the ground that the latter is appointed by the King.
2. Charging a judge for personal misconduct is not synonymous with attacking the
judiciary. Otherwise, citing a lawyer for "contempt" can also be
construed as an affront on the Bar Association. In fact, AG himself will
be guilty of misconduct if he confuses himself over the issue and jumps to the
judge’s defence.
3. The AG is empowered under Article 145 of the Constitution with the discretion
to prosecute any one for breach of law. However, he is not similarly
empowered to defend any one at his discretion against legal action.
Specifically, an AG’s duty is to advise the Cabinet and perform legal duties
as may be assigned by the Cabinet. And that certainly includes defending
an officer under the Executive, if he is deemed to deserve AG’s defence.
However, this service does not cover the judges, as they are deemed to be
totally independent of the Executive, and should under no circumstances be under
the legal umbrella of the latter. To do otherwise is to violate the
fundamental principles of our Constitution of separation of powers among the
three pillars of our democratic system: Parliament, Executive and Judiciary,
each providing checks and balances against the others.
4. AG’s argument that since he can prosecute any one for contempt, he must
have been similarly empowered to defend any judge against contempt proceeding is
misconceived. Contempt proceeding relates to personal conduct, and is not
an attack on a system, and if the judge is not guilty of misconduct, he is
certainly capable of defending himself with or without his personal lawyer, who
by no stretch of imagination can include the AG.
Kim Quek