Lawyer Christopher Fernando applied before the Kuala Lumpur High Court today to issue a warrant of arrest for Justice Augustine Paul after he failed to turn up for the second time in an contempt of court proceeding against him.

"His absence ought not to be taken lightly and he should be setting an example. He is the defendant in this case and he is disrespecting this court by not attending the hearing today," said Fernando's lawyer Karpal Singh.

Fernando had filed a contempt of court motion against Paul for allegedly uttering disparaging remarks about him during the corruption trial of jailed ex-deputy prime minister Anwar Ibrahim in April 1999.

In his affidavit, Fernando, Anwar's counsel then, had said Paul made the following remarks in his absence: "If the way of speaking is like an animal, we can't tolerate it. We should shoot him. He has to change."

Fernando said that although Paul qualified the remarks by saying he was not comparing him to an animal, "the qualification of the remarks did not remove the sting in them".

Paul was first served with a notice to appear in court for the case by Justice Hashim Yusof on Dec 13 but he failed to appear.

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

'Tarnished the image'

Newly appointed Attorney-General Abdul Gani Patail applied on Wednesday to represent Paul while Senior Federal Counsel Abdul Aziz Abdul Rahim and deputy public prosecutors Syed Marzidy Syed Marzuki and Majid Tun Hamzah appeared for the judge today.

In arguments before Justice Hashim today, Karpal contended that Gani does not have the legal standing to represent Paul.

"If the AG represents him then it contravenes the separation of powers. By virtue of the Federal Constitution the AG is the legal adviser to the government and the government is the executive in this context.

"In no way must there be the perception that the judiciary is obligated to the executive," Karpal said.

He added that legal counsel from the AG's chambers can only be given to officers in government service.

"The Federal Constitution refers to officers as those being from the subordinate courts and the AG's Chambers. Therefore judges are not public officers," he said.

In supporting this argument, Gobind Singh Deo said the AG should have supported the contempt motion against Paul and not act for him.

"The conduct of Paul has brought disrepute and tarnished the image of the judiciary. I submit that the AG has a duty to protect the image and the integrity of the judiciary," he said.

Further submissions

However, the senior federal counsel said the AG had ample powers to appear as legal counsel for Paul.

"If the AG can bring contempt procedures it also has the duty to stop any contempt proceedings which are not supported by facts," said Abdul Aziz.

"Under the Federal Constitution, a high court judge is legally appointed to represent the King and therefore if an attack is mounted against this high office, the AG must defend it," he said, adding he was not defending Paul per se but the constitution.

Justice Hashim ordered further submissions before deciding on a warrant of arrest against Paul and whether the AG could represent him. He fixed Feb 11 for further hearing.

Holding a watching brief for the Bar Council were chairperson Mah Weng Kwai and Gerald Allen Gomez.

Also present as observers were Mark Trowell from Australian NGO Lawasia and United Nations Special Rapporteur on the Independence of the Judiciary Param Cumaraswamy.