19.01.2002

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 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:

• 'A high court judge is appointed by the King, and therefore if an attack is mounted on this high office (the judiciary), it is the duty of the AG to defend the system of justice.'
  
  

• 'Since the AG could initiate any contempt proceeding to protect the Judiciary, he could also come to court to protect it if there is any action against it.'

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 seperation 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.