Two judicial rulings of ominous import

Two rulings by the appellate courts in a matter of a week have grave implications for the rule of law.

Both clear the way for the play of personal interest in roles that ought to be properly insulated from it.

The first ruling was last week’s Federal Court decision that retired judges can appear for a party in a matter that is before the appellate courts.

This ruling will erode the monastic ideal de rigueur for the gnomes on the bench which requires them to be otherworldly in order to be more judicial.

By allowing judges to practice law after they have retired from the bench, the Federal Court has cleared the path for those sitting on the bench to think about which law firm they will work for once they have stepped down.

This will detract from the Olympian detachment that judges should display when adjudicating between parties that come before the bench.

The second ruling with similarly distressing implications for the rule of law was yesterday’s Court of Appeal decision allowing a lawyer in private practice to prosecute the government’s case against Anwar Ibrahim on a charge of sodomy on which he was acquitted by the High Court.

This privatisation of a vital function that falls under the purview of the Attorney-General’s Chambers is seldom if ever resorted to in commonwealth jurisdictions.

There are good reasons for this.

Lawyers in private practice are not the disinterested practitioners that counsel in the AG’s Chambers are paid to be in the prosecution of cases.

The AG’s office is a constitutional arm of government whose impartiality must be above question.

Once the AG’s Chambers elects to resort to a private lawyer in the matter of the prosecution of a case, it is inviting aspersions to be cast on its capability.

This is not the done thing if the office desires to sustain public belief in its impartiality and its capability.

Once in the recent past, the AG resorted to use of a private lawyer in the matter of Teoh Beng Hock, a political aide who died in mysterious circumstances in 2009 while being investigated by our graft fighting agency, the Malaysian Anti-Corruption Commission (MACC).

A judicial inquest, not a court case
But there was a difference. Teo’s case was a judicial inquest, not a court case. The arenas are not the same such that the use of a private lawyer in the former instance is permissible but not when it is matter of a court case.

In resorting to private practitioner Muhammad Shafee Abdullah (right), the AG’s office is saying that they are short of the expertise to prosecute its appeal of Anwar’s January 2012 acquittal on a charge of sodomy.

Even former AG Abu Talib Othman has been on public record as frowning on this move and raising the pertinent point of what it implies about the deficiencies in the prosecution division of the AG’s chambers.

The Court of Appeal, in concurring with the move, has blithely chosen to ignore not only these points of grave pertinence but also Shafee’s presence, albeit peripheral, on the contours of the investigative process prior to the preferment of a charge of sodomy against Anwar.

Thereby imperiled has been the judicial maxim that justice must not only be done but must be seen to be done. The doing and the seemingly done are vital parts of the august panoply of the rule of law.

Seen in isolation, one apart from the other, the judicial rulings - allowing retired judges back into private practice and privatisation of a public prosecution - represent a stinging rebuke to the rule of law.

Viewed in tandem, they represent a continuum to the downdraft that followed hard upon the dastardly act of piracy visited on the head of the judiciary, Salleh Abbas, a quarter century ago when he was impeached by a panel that included as a member a direct beneficiary of the impeachment decision.

Rarely in judicial annals has a more ghoulish act occurred. With it as backdrop the two rulings of the past week constitute more lacerations to the notion of the rule of law.

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TERENCE NETTO has been a journalist for close on four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them.