The appointment of senior lawyer Muhammad Shafee Abdullah, who is in private practice, to lead the prosecution in the appeal of Anwar Ibrahim's sodomy acquittal is unprecedented to say the least.
The appeal which was to begin hearing at the Court of Appeal last Monday was adjourned by a three-member bench led by Justice Ramly Ali because lead defence counsel Karpal Singh was indisposed.
However, it was not Karpal's indisposition that was the news; the appointment of Shafee as lead prosecution counsel and the speculation about his disposition towards the defendant Anwar Ibrahim hogged the limelight.
It is not unusual for a lawyer in private practice to be appointed to lead the prosecution's case.
True, it's not the done thing. In extraordinary circumstances, however, the Attorney-General's Chambers can resort to the special expertise of a private counsel to put their case before the bench.
It's hard to see what expertise Shafee (left) could bring to the government's appeal of High Court judge Mohd Zabidin Diah's acquittal of Anwar in a case that occupied a span of more than two years and became an international cause celebre.
Though in remarks he made immediately after news of his appointment got out Shafee had argued that he had the smarts to weigh in on the case, it's difficult to see how he can disturb the findings of fact which an appellate court is loath to allow.
Appellate courts are primarily concerned with points of law and with the inferences a High Court judge drew from findings of fact.
From the comments he made after his appointment as the lead prosecutor, Shafee indicated that his approach to the appeal would be to exhume the evidentiary record to demonstrate that a conclusion that the process by which Anwar's DNA sample was taken and tested was tainted was insupportable by the facts that had been adduced in the course of the trial.
If this can be demonstrated, it's hard to see how the smarts for it are beyond the capabilities of the lawyers presently in the employ of the AG's Chambers such that it has to resort to the expertise of private practitioner Shafee.
Umno-friendly lawyer
Now that the AG's Chambers have served notice of such recourse, the question of Shafee's disposition to the defendant becomes a matter of no small concern.
Shafee has appeared for several Umno leaders and for clients allied to the party who are embroiled in court cases brought against them or that they have caused to bring against the party's adversaries.
Although Shafee has said he has not been a member of Umno, his appointment as lead prosecutor in the appeal of Anwar's acquittal on the charge of sodomy is as untenable as was Wan Ahmad Wan Omar's position as deputy chief of the Election Commission when it was said that Wan Omar was a member of Umno.
In the first instance, the role of the prosecutor has to be assayed by a disinterested party concerned only to further the cause of justice.
He has to be above the fray just as one who superintends the Election Commission must be above the welter of political partisanship.
Can a lawyer whose frequent advocacy of legal matters on behalf to Umno or clients linked to Umno be regarded as above the fray?
As well believe Shahrizat Abdul Jalil's tenuous contention that her role as wife and mother of individuals involved in the running of the RM250 million cattle breeding project that became a scandal had nothing to do with her status as Wanita Umno chief.
The whole concept of the separation of powers which is the philosophic core of democratic governance is founded on the implausibility of such dichotomies in role playing.
Also, the maxim that justice must not only be done but seen to be done is enfeebled when the feasibility of implausible dichotomies is allowed to gain credence in the legal realm.
Fair becomes foul and foul becomes fair when the necessitous distinctions between roles in constitutional governance are blurred for reasons of expediency.
The appeal which was to begin hearing at the Court of Appeal last Monday was adjourned by a three-member bench led by Justice Ramly Ali because lead defence counsel Karpal Singh was indisposed.
However, it was not Karpal's indisposition that was the news; the appointment of Shafee as lead prosecution counsel and the speculation about his disposition towards the defendant Anwar Ibrahim hogged the limelight.
It is not unusual for a lawyer in private practice to be appointed to lead the prosecution's case.
True, it's not the done thing. In extraordinary circumstances, however, the Attorney-General's Chambers can resort to the special expertise of a private counsel to put their case before the bench.It's hard to see what expertise Shafee (left) could bring to the government's appeal of High Court judge Mohd Zabidin Diah's acquittal of Anwar in a case that occupied a span of more than two years and became an international cause celebre.
Though in remarks he made immediately after news of his appointment got out Shafee had argued that he had the smarts to weigh in on the case, it's difficult to see how he can disturb the findings of fact which an appellate court is loath to allow.
Appellate courts are primarily concerned with points of law and with the inferences a High Court judge drew from findings of fact.
From the comments he made after his appointment as the lead prosecutor, Shafee indicated that his approach to the appeal would be to exhume the evidentiary record to demonstrate that a conclusion that the process by which Anwar's DNA sample was taken and tested was tainted was insupportable by the facts that had been adduced in the course of the trial.
If this can be demonstrated, it's hard to see how the smarts for it are beyond the capabilities of the lawyers presently in the employ of the AG's Chambers such that it has to resort to the expertise of private practitioner Shafee.
Umno-friendly lawyer
Now that the AG's Chambers have served notice of such recourse, the question of Shafee's disposition to the defendant becomes a matter of no small concern.
Shafee has appeared for several Umno leaders and for clients allied to the party who are embroiled in court cases brought against them or that they have caused to bring against the party's adversaries.
Although Shafee has said he has not been a member of Umno, his appointment as lead prosecutor in the appeal of Anwar's acquittal on the charge of sodomy is as untenable as was Wan Ahmad Wan Omar's position as deputy chief of the Election Commission when it was said that Wan Omar was a member of Umno.
In the first instance, the role of the prosecutor has to be assayed by a disinterested party concerned only to further the cause of justice.
He has to be above the fray just as one who superintends the Election Commission must be above the welter of political partisanship.
Can a lawyer whose frequent advocacy of legal matters on behalf to Umno or clients linked to Umno be regarded as above the fray?
As well believe Shahrizat Abdul Jalil's tenuous contention that her role as wife and mother of individuals involved in the running of the RM250 million cattle breeding project that became a scandal had nothing to do with her status as Wanita Umno chief.
The whole concept of the separation of powers which is the philosophic core of democratic governance is founded on the implausibility of such dichotomies in role playing.
Also, the maxim that justice must not only be done but seen to be done is enfeebled when the feasibility of implausible dichotomies is allowed to gain credence in the legal realm.
Fair becomes foul and foul becomes fair when the necessitous distinctions between roles in constitutional governance are blurred for reasons of expediency.
TERENCE NETTO has been a journalist for four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them.
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