The 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.

Anyway, after 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.

Augustine 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.

Christopher 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 Augustine.

What makes 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.

Warrant of arrest applied against Augustine Paul

Karpal then 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 be done.

Karpal objected 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.

AG's Chambers Augustine Paul's personal law firm

Karpal then 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 involved?

But justice 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.

Karpal then 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 in court.

Augustine Paul's abuse of power

Karpal pointed 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.

Karpal pointed 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 the government.

Clearly Justice 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.

Justice Hashim 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.

Of course, 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.

Anyway, this 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 of justice.

Augustine Paul's verdict against Anwar Ibrahim invalid

If Justice 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.

The bottom 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.

The question 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 years?

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?

If Justice Dato Hashim is true to his profession then Justice Augustine would be sent to jail and Anwar sent home to his family.

RAJA PETRA KAMARUDIN