The Attorney-General may represent judge Augustine Paul in contempt proceedings brought against him by lawyer Christopher Fernando, the Kuala Lumpur High Court ruled today.

Fernando had filed a contempt of court motion against Paul for uttering disparaging remarks directed at him during the corruption trial of now jailed ex-deputy premier Anwar Ibrahim in April 1999.

Paul allegedly had referred to Fernando as an animal who should be shot in the latters absence during the trial.

Counsel for Fernando, Karpal Singh had before this submitted that representation by the AG would conflict with the doctrine of the separation of powers since the AG is the legal adviser to the government.

However, Justice Hashim Yusoff disagreed with Karpal and held in his eight-page decision today that it would be proper for the AG ... to step in and defend the judge not as a private individual but in the protection of such office.

Senior Federal Counsel Abdul Aziz Abdul Rahim, on behalf of Paul, then asked for a deferment of the hearing until an application by Paul to strike out the case on its merits is heard first.

Far reaching consequences

He cited Order 52 of the Rules of the High Court (RHC) which provides that leave should first be obtained from the court before a contempt proceeding may be brought, unless the contempt was in the face of the court.

Aziz argued that the nature of the contempt proceedings in this instance was not in the face of the court.

Karpal, however, said by saying the RHC did not apply here as the matter was one of a criminal nature, would mean the RHC only applied to civil matters.

Justice Hashim held that Order 52 be complied with as the alleged contempt was not taken up by the AG but at the instance of the applicant (Fernando).

The AGs application to strike out must be heard first, he said.

At this juncture, Karpal submitted that since Order 52 would apply as a civil matter, he had the right to appeal against the courts decision (of allowing the AG to represent Paul).

He added that if Paul was indeed found guilty of contempt, the decision would have far-reaching consequences.

The decision against Anwar Ibrahim over which Paul had presided in 1999, would be null and void, as any judge guilty of contempt cannot lay down a judgement.

Fernando should be allowed to exhaust all his rights, and should be allowed to appeal to the Court of Appeal. Moreover, public interest demands the authority of a higher court, he said.

Criminal proceeding

Karpal then asked the court for a stay in proceedings to allow him to file an appeal.

Aziz disagreed and said there could be no stay for an appeal on a procedural ruling and that therefore it should not be allowed, pointing out that this would result in further delay.

The court cannot expeditiously dispose of a case without abiding by the law, Karpal replied.

When the judge agreed with Aziz and refused to grant a stay, Karpal requested the court be stood down as he wanted to seek the intervention of the President of the Court of Appeal.

The President was, however, unavailable, at which point the judge proceeded to hear the AGs submissions to strike out.

Events took a confusing turn when Aziz said that this was in fact a criminal prosecution. Karpal then asked the judge if the proceedings were, in fact, criminal.

If it is criminal (in nature), you cannot resort to civil procedure (referring to Order 52 of RHC). Otherwise, we are neither here nor there, he added.

Finally, after a slight discourse, the judge agreed that it is a criminal proceeding.

Not demi-gods

Aziz nonetheless made reference to Order 52 and asserted that the requirement for leave was to safeguard and examine if there was in actual fact a case for contempt, and that the omission to obtain leave amounted to procedural failure.

He laid down the test for contempt - the contemptuous words must have obstructed or interfered with the conduct of proceedings in the course of the administration of justice- and went on to say that there was no such obstruction.

Aziz added that even if contempt proceedings were to be carried out, the doctrine of Immunity of Judges would apply in the circumstances.

Otherwise, judges will lose the independence to control the proceedings in his own court for fear of being cited for contempt, he added.

Karpal rebutted by saying that immunity could not apply here as Section 14 of the Courts of Judicature Act (CJA) 1964 only granted judges immunity for acts done, and not for utterances. Judges are not demi-gods, he said.

To the submission by Aziz that the words said did not amount to contempt, Karpal argued that the unprovoked attack on counsel in his absence in fact did obstruct the administration of justice.

It was a cold-blooded attempt to destroy Fernando professionally, he added.

Karpal to appeal

Justice Hashim then adjourned the hearing to March 21.

Meanwhile, Karpal expressed his intention to appeal to the Court of Appeal by next Monday on the decision by Hashim to allow the AG to represent Paul.

Fernando is also represented by Gobind Singh Deo, Ram Karpal Singh, SN Nair, Pawancheek Merican and Gurbachan Singh.

Senior Federal Counsel Abdul Aziz, Deputy Public Prosecutors Syed Marzidy Syed Marzuki and Majid Tun Hamzah appeared for Paul today.

Malik Imtiaz Sarwar held a watching brief on behalf of the Bar Council.