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.