Eric Paulsen
Dec 4, 07 11:49am
In our enthusiasm to campaign for an independent, impartial and
competent judiciary, perhaps we have missed out another essential
component in the administration of justice – the Attorney General's
Chambers that in principle is supposed to act as the legal arm of the
state (not to be confused with the government of the day) and advise
the government on legal issues and undertake criminal prosecution.
The AG's Chambers has certainly been incriminated in several scandals
especially while under the leadership of AG Mohtar Abdullah
(1994-2000) including some of the more obvious acts of selective
prosecution: the withdrawal of seven corruption charges against
Jeffrey Kitingan (who defected to BN) midway through the trial, the
withdrawal of unlawful assembly charge against Yong Teck Lee (chief
minister of Sabah), the non-prosecution of Rahim Tamby Cik (chief
minister of Melaka) for alleged corruption and statutory rape, and
Rafidah Aziz (minister for international trade and industry) for
corruption. Mohtar himself was also seen in a holiday photograph with
the "correct" lawyer of the hour VK Lingam.
The rot at the AG's Chambers started with Mohtar's predecessor, Abu
Talib Othman (1980-1993) who was the AG responsible for "May Day for
Justice" in 1988. The watershed event resulted in the unlawful
sacking of Tun Salleh Abas as the Lord President for alleged
"misconduct" and the suspension of five Supreme Court judges (Mohamed
Azmi, Abdoolcader and Wan Hamzah) and the eventual sacking of two of
them (Wan Sulaiman and George Seah).
He was also the AG responsible for Operation Lalang a year later,
which detained more than a 100 leading politicians and human rights
activists under the Internal Security Act (ISA) and repeatedly
defended the government's actions in and out of court. Like Rela, he
has recently been busy in re-branding himself as pro-human rights by
chairing Suhakam despite protestations from civil society. The
current AG Abdul Gani Patail although not as infamous as Mohtar or
Abu Talib, is not exactly a picture of righteousness, independence
and fairness. We only need to look at his conduct and extent his
arguments in the series of sham trials and appeals concerning Anwar
Ibrahim.
Mala fide arguments
Which brings us nicely to what prompted this diatribe – the landmark
Hindraf-organised demonstration attended by tens of thousands of
Malaysians (mainly Indians) on Nov 25 and the subsequent criminal
prosecution for "illegal assembly" of the arrested demonstrators. Of
course, the whole act of prosecution is itself wrong as Malaysia is
supposed to be a modern, civil and democratic state that sits at the
UN Human Rights Council and believes in human rights including the
freedom of speech, assembly and association.
But what really irked me was the manner in which the charging and
bail proceedings were conducted at the Kuala Lumpur Magistrates
Courts – which manifestly lacked fairness, compassion and what can
only be described as malicious intent to punish the demonstrators
even before they were tried in the court of law.
The team of Deputy Public Prosecutors (DPPs) led by Sarala Pillai
(Head of the Prosecution Department, Wilayah Persekutuan ) somehow
thought fit to argue for bail to be set at RM8,000 with two sureties
– and most outrageous of all – for the demonstrators to report to the
police every month as a condition of bail. In my few years of active
practice as a criminal lawyer, with the exception of the bail hearing
concerning Anwar Ibrahim, I have never seen such acts of mala fide
(bad faith) on the part of the prosecution on such a mundane issue
such as bail.
The offences charged were minor offences and bail is as of right. A
normal bail amount would have been between RM500 to RM1,000 and with
one surety although an issue can be raised as to whether bail
involving money should be normal practice. Instead, the prosecution
had argued extraordinarily and vehemently for these onerous
conditions – something not normally done for accused persons charged
with more heinous crimes like rape, robbery, cheating or corruption
and certainly not when the accused persons happened to be Datuks and
Tan Sris.
The magistrates involved dismissed most of the objections raised by
the lawyers and set the bail at between RM1,500 to RM3,000 with one
surety. As a result, some 15 persons were not able to post bail and
were sent to the Sungai Buloh prison. For those who managed to post
bail, a quick survey showed that many of them had borrowed money as
they mostly came from lower income backgrounds. Others had also
managed to post bail due to initiatives by the Bar Council's Legal
Aid Centre and others collected bail money from private individuals.
A few days later at the Selayang Sessions Court, the DPP again argued
for these onerous conditions, and the magistrate granted bail at
RM500 and for the demonstrators to report to the police each month.
The usual deference by magistrates to lean towards the prosecution
than to what is fair and just can perhaps be explained by the fact
that the prosecution service and the lower court judicial officers
fall under the same state agency – the Judicial and Legal Service –
and the staff are frequently transferred between the departments.
It is certainly undesirable that the prosecution and the arbiter are
pooled from the same source and interchangeable. The situation
becomes more apparent when a senior DPP appears before a junior
magistrate causing the appearance of deference by the magistrate
towards the DPP.
Not a new trend
So what prompted this malicious prosecution? Surely as clear as a
haze free day, the reasons were that government officials and the
police had shown their "displeasure" over the Hindraf rally which was
deemed an "illegal" assembly (no one has yet explained convincingly
why it was illegal) and that the defiant demonstrators should be made
to pay for daring to challenge the authorities' ban.
This of course is not a new trend. We have seen in the past how the
AG's Chambers has been used as a political instrument to punish
political opponents or those who challenge the authorities. Past
examples are not limited to opposition personalities like Anwar
Ibrahim, Lim Guan Eng, Irene Fernandez, Ezam Mohd Nor, Sivarasa
Rasiah or Tian Chua but also extend to members of the public and
ordinary opposition party members who had been charged for "illegal
assembly" as in the Reformasi days. At least the AG's Chambers has
remained constant in promoting "semangat muhibbah" by not excluding
any particular race from prosecution.
Congratulations must be extended to Klang Sessions Court judge
Zunaidah Mohd Idris who decided on the bail of Hindraf leaders P
Uthayakumar, P Warthamoorty and Ganapathi Rao who were charged with
sedition (a much more serious offence as far as the punishment goes)
on Friday, Nov 23.
The conduct of the prosecution was clearly tainted with mala fide
again – by charging the trio at late afternoon on Friday and arguing
for a large amount of bail at RM10,000. The DPP's train of thoughts
was clear: the accused persons will unlikely be able to raise the
bail amount, and even if they were able to do so, it would already be
too late to deposit the sums in newly opened bank accounts and submit
the bank books to the court as is normal practice.
They would then have to stay in prison and miss the Hindraf rally
over the weekend. The judge rose to the occasion and demonstrated her
sense of fairness, independence and compassion. She not only set bail
at RM800 but also ordered the court to accept the bail amount in hard
cash as it was already evening when the proceeding ended. A few days
later, she outdid herself when she rightly dismissed the sedition
charges as they stood against the accused persons due to defects in
the framing of the charges.
Which brings me to another important point – that in the absence of
an independent, impartial and competent AG's Chambers, we need an
independent, impartial and competent judiciary that are composed of
judges like Zunaidah and Hishamudin Mohd Yunus (who recently
delivered a landmark judgment on the ISA and awarded the tortured
survivor RM2.5 million). Their judgments must have annoyed and
alarmed the authorities. I fear for good judges like them, who
without the formation of a Judicial Commission on the Appointment and
Promotion of Judges, will unlikely be promoted while less senior and
competent judges will leap-frog (perhaps in this context leap-
kangaroo would be more appropriate) them – in the best tradition of
Malaysian style judiciary.
Eric Paulsen is a human rights activist and lawyer.
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