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KQ: AG Returning Favour To Judge Paul?
By Kim Quek
19/1/2002 10:31 pm Sat
AG RETURNING FAVOUR TO JUDGE PAUL?
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
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
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: