Monday, 07-Jan-2002 10:58 AM
hunter is now the hunted
A very interesting
case is going to be heard in the Kuala Lumpur High Court some time
in early 2002. The date has not been confirmed yet but it is certainly
a case to look out for and should not be missed.
On 13 December
2001, Christopher Fernando, one of the counsels for Anwar Ibrahim,
appeared before the Kuala Lumpur High Court. The reason – Christopher
had filed contempt of court proceedings against Justice Dato Augustine
Paul, the judge who sent Anwar to jail for six years on what many
believe are trumped-up corruption charges. The petition was filed
in early 1999 and it took more than two years for the case to finally
come up. Maybe the court had never heard the saying that justice
delayed is justice denied.
a long wait, the case was finally heard and they brought a judge
from outside Kuala Lumpur to hear the case. The judge they brought
down was Justice Dato Hashim Dato Yusoff from the Seremban High
Court - coincidentally an old boy of the Malay College Kuala Kangsar,
Anwar Ibrahim’s alma mater. The lead counsel representing Christopher
was Karpal Singh who was assisted by the entire panel of lawyers
involved in Anwar’s trials.
Paul insults Christopher Fernando
In the first
Anwar trial – the corruption trial – Justice Augustine had made
a disparaging remark against Christopher, totally unbecoming of
a High Court Judge. I cannot remember the exact words he used as
it was some time ago but it was something to the effect that Christopher
was acting like an animal that should be shot.
objected to this remark and Justice Augustine replied that “if I
have upset Christopher Fernando then I tender my apology".
It was not what Christopher regarded as a sincere apology seeing
that it was a qualified apology. Christopher then filed for contempt
against Justice Augustine.
As Karpal pointed
out in his argument before Justice Hashim, there have been many
instances where judges were held for contempt in their own court.
Karpal then went through the list of cases to prove his point. Karpal
cited cases where the judges concerned had been found to be in contempt
whereas their crimes were not as serious as that committed by Justice
this case even more interesting is the fact that Augustine Paul
was absent from court that day. The trial was supposed to have started
at 9.00am but by 9.45am Justice Augustine had still not turned up
so the case had to proceed without him.
of arrest applied against Augustine Paul
applied for a warrant of arrest to be issued against Justice Augustine.
Karpal insisted that the court issue the warrant of arrest and get
the police to drag Justice Augustine to court immediately so that
the case could proceed without any further delay.
You could see
that Justice Hashim was flabbergasted and did not quite know how
to react. However, before he could respond, one of the representatives
from the Attorney General’s Chambers stood up to ask for a postponement
to allow them time to study the case. Issuing a warrant of arrest
for a High Court Judge is serious business and not normally done
so they need time to study this case further to see what should
to this application for postponement as the case had been filed
since early 1999 - more than two years ago - so they had plenty
of time to “study this case further”. No further delay should be
allowed. But the three representatives from the AG’s Chambers insisted
on the postponement.
The truth is,
they did not know what to do. In fact, from the conversation I picked
up outside court earlier, they did not even know what they were
doing there. They were just told to be present in court and they
had no inkling what they were supposed to do once they get there.
Augustine Paul's personal law firm
pointed out that this was a case against Justice Augustine in his
personal capacity. There was no reason for anyone from the AG’s
Chambers to be present in court let alone to be standing up objecting
to anything or making any application. If Justice Augustine required
legal representation then let him engage a lawyer like everyone
else who may be facing criminal charges. This was not a case against
the government but against an individual so why was the AG’s Chambers
in Malaysia - or rather the lack of it - being what it is, the AG’s
Chambers, though they had no locus standi, was allowed to argue
on behalf of Justice Augustine as if it was his personal law firm.
asked why was Justice Augustine absent? He had been served the papers
and knew the case was up for hearing that day. Why was he not in
court? He had, in fact, sent two of his staff to attend court “to
spy”. They were quietly sitting in the public gallery watching and
listening, probably to report back to their boss later what happened
Paul's abuse of power
out that this was an abuse of authority. This was a case against
Justice Augustine in his personal capacity. However, Justice Augustine
was using his staff – government employees – to do his personal
work. This was a crime under Ordinance 22. Anwar had been charged
for abuse of power under the very same Ordinance and was sent to
jail for six years. Justice Augustine was now committing the same
crime that he sent Anwar to jail for.
to Justice Augustine’s two staff members who were now looking very
sheepish and said that they should not be in court wasting the tax
payers’ money but should be back in their own office working for
Augustine was not only in contempt of court but was also committing
a crime - abuse of power. As a High Court Judge, Justice Augustine
should be setting a good example by appearing in court rather than
demonstrating his arrogance by ignoring the court.
must have realised that he was now in the deep end. He ruled that
Justice Augustine must be given the benefit of the doubt that maybe
he was not aware he was supposed to be present in court that day.
After all, the papers served on him only stated that contempt proceedings
would be initiated against him. The papers never said he was supposed
to be present in court as well.
everyone found this hard to believe. Justice Augustine is, after
all, a High Court Judge and he should know the rules of the game.
He was being cited for contempt. Surely he knows he must be present
in court to face the charges.
is not yet the most interesting aspect of this case. As Christopher
pointed out, Justice Augustine never denied his contemptuous act.
He had, in fact, apologised, albeit a qualified apology at that.
Without a doubt, Justice Augustine had uttered the disparaging remark.
The court transcripts would have records of this and there is no
way Justice Augustine can deny this. And Justice Augustine never
attempted to deny it knowing he would never get away with a denial.
The Kuala Lumpur High Court would have no choice but to find Justice
Augustine in contempt – unless, of course, the court wishes a travesty
Paul's verdict against Anwar Ibrahim invalid
Augustine were found to be in contempt, then he should have been
disqualified from hearing Anwar’s case. This, therefore, makes whatever
ruling he made in the case invalid.
line is, this is not just a case about Justice Augustine. It is
not just about issuing a warrant of arrest against a High Court
Judge and getting the police to drag him to court. It is not just
about charging a High Court Judge for abuse of power under Ordinance
22 and sending him to jail for six years like what this same Judge
did to Anwar. It is about whether Justice Augustine was qualified
or unqualified in hearing Anwar’s case – in which case his judgement
would automatically become invalid and Anwar would have to be released
from Sungai Buloh Prison.
here would be, is Justice Dato Hashim Dato Yusoff strong enough
to do the right thing? He knows Justice Augustine is guilty as hell.
Would he be brave enough to say so and set the clock back three
I would put
it another way. Would Justice Dato Hashim show the world that a
Malay College education was not wasted on him by doing the only
thing he should do? That is, find Justice Augustine guilty of contempt
and allow justice to go its natural course?
Dato Hashim is true to his profession then Justice Augustine would
be sent to jail and Anwar sent home to his family.