Monday, January 18, 2010

Shame On You

About my brother judge Augustine Paul

When the infamous Judge Jeffreys died ignominiously in 1689 at the age of 41 in the Tower of London where he was imprisoned, no one in freedom loving England mourned his death.

augustine paulJudge Jeffreys died in obscurity as a judge. But his name will forever be remembered in infamy for his part as the judge in the Bloody Assize. Likewise, the name of judge Augustine Paul (left) will remain in obscurity as a judge, but his name will be remembered as a bad and evil judge because of his monstrous behaviour on the bench when he tried former deputy premier Anwar Ibrahim.

This obnoxious man never gave Anwar a fair trial. William Shakespeare once wrote in one of his plays, "The evil that men do lives after them": Julius Caesar, Act 3, scene 2.

There is another quotation which tells us that an unjust judge is unfit to be called a judge. The quotation fits Augustine to a T. It reads, "When the judge is unjust, he is no longer a judge but a transgressor": Giosue` Borsi in 'A Soldier's Confidence with God', The Macmillan Treasury of Relevant Quotations.

anwar ibrahim 1998 sodomy trial court case the bed mattress staI remember that when Augustine tried Anwar in the infamous "mattress" case - up to this day, we still do not understand why the mattress was carried in and out of court daily during the long trial - the judge was surrounded by bodyguards. He must have known that he had done wrong for him to fear for his life.

During the days of the Emergency - I was a schoolboy then - many communists were tried before stern but fair-minded colonial judges for armed insurgency and they dealt out the death sentence to those whom they convicted almost routinely. Yet the judges were not protected. The judges had no bodyguards and their home and family were unprotected..

The communists killed Sir Henry Gurney and many expatriate police officers. But they never touched a single judge. No judge was ever threatened nor harmed by the insurgents. But a coward like Augustine needed protection.

There was a time when Sheikh Daud Ismail and I were the High Court judges who were hearing criminal cases in Kuala Lumpur . One morning, the late Mohtar Abdullah, who was then the head of criminal prosecutions in the Attorney-General's Chambers, telephoned me to offer me a police bodyguard for my protection because two prisoners who had been severely punished by me for armed robbery had escaped from prison and he had reason to believe that one of them was looking for me.

I turned down the offer because I have never acted unjustly or unfairly as a judge so that there was no reason for me to fear reprisal from those who had been punished by me. In my 21 years as a judge until I retired in the year 2000, I was never harmed nor threatened by those criminals who had received harsh sentences from me.

Once in a while, those who had been punished by me have accosted me. They meant me no harm. They just wanted to tell me that they have served their term and to shake my hand. They wanted to show to their family members that they could approach a judge to speak to him cordially.

I could not recognise any of them, of course - so many had passed through my hand. But the ex-convicts bore no grudge against me even though I had imposed the harshest sentences on them because they knew that they had been given a fair hearing.

Now you know that an unjust judge is not a judge but a transgressor. Augustine was a transgressor and so was Judge Jeffreys before him. This is what I wrote in the Preface to the second edition of my book, 'How to Judge the Judges'

"The epitome of justice is a fair trial and for the presiding judge to do justice according to law. These are the twin pillars of justice. One would never tire of stressing this point; this is what the rule of law is all about.

For there to be a fair trial the presiding judge must be fair-minded and he must administer justice according to law. If the judge does not do that, then justice has failed. There will be injustice. The judge must be impartial himself and in his court he must manifest an appearance of impartiality - for justice must not only be done, it must be seen to be done."

With that definition of justice, the common man can judge the judges. It is so easy to be a judge. All that you need to be one is to be fair-minded yourself and to show by your conduct and behaviour in court that you deal out impartial justice - for justice must not only be done, it must be seen to be done. The other attribute of a judge is to administer justice according to law.

It is so easy to be a judge, yet this country, since chief justice Abdul Hamid Omar, has not been able to appoint judges with such simple attributes. There are exceptions, of course - there are a few good judges left but they are few and far between as can be seen by the antics of the main body of judges in the cases of the Perak crisis.

Like two peas in a pod

At page 8 of my book, ibid
, I wrote:

"The first Anwar Ibrahim trial (Public Prosecutor v Anwar bin Ibrahim [1999] 2 AMR 2017): the so-called "corruption trial" had attracted much adverse worldwide attention. It was not the judgment that was criticised (it could even be impeccable) but the way the trial was conducted which attracted so much adverse comment and disapproval from television broadcast abroad and from the international press.

The remarks and behaviour from the bench: like when the lawyers for the defence were threatened with contempt of court, in fact one of the defence lawyers was actually charged with the offence, and with the judge being difficult with the witnesses and counsel for the defence at almost every turn of the trial, gave the impression to the media and to those who were there that the judge was one-sided. It did not matter that the judge thought he was not.

As Lord Devlin observed, "The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all" Patrick Devlin, The Judge, p 3). Mr Justice Augustine Paul, like the infamous Judge Jeffreys before him, by the manner in which he had conducted the trial and his behaviour on the bench, brought ignominy and embarrassment to the reputation of the courts of this country. The decision could be set aside for apparent bias: see Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL(E))."

The perpetuation of injustice by him while on the bench was Augustine's besetting sin. This is how I put it at page 7 of my book:

"The judge who does not appear to be fair; who does not appear to be impartial, is useless to the judicial process. Even though he has given the right judgment, the judge who does not appear to be fair at the hearing leaves behind a sense of injustice to the losing party who will feel that he has been singled out by the judge's show of partiality. Such a judge is useless to the judicial process and gives a bad name to the courts of his country."

Like two peas in a pod, Augustine's reflection - his mirror image - was the infamous Judge Jeffreys before him. Both men were unjust and their besetting sin was the perpetration of injustice.

The nemesis of Judge Jeffreys was the trial of Alice Lisle. Just as the nemesis of judge Augustine was the trial of Anwar. On page 10 of my book, I wrote, "...the trial of Dame Alice Lisle and Judge Jeffreys' infamous conduct of pressuring an unwilling jury to convict her brought infamy to his name down through the centuries to this day."

In the book 'What Next in the Law', Butterworths, London , 1982, pp. 40, 41, Lord Denning tells this story:

"I was surprised to find how few, even in my county of Hampshire , had heard of Alice Lisle. Everyone has heard of Judge Jeffreys and the Bloody Assize. But they seem to be unaware of the way in which he browbeat the jury consisting, we are told, of the "best quality of the country".

All that the little old lady had done was to let a man called Hicks - a non-conformist minister - have a night's lodging in her house near Fordingbridge. She did not know that he had been in the rebellion on the side of the Duke of Monmouth. He only stayed one night and left the next day. But she was charged with high treason.

Now there was in law no case against her. And Jeffreys should have known it: because Hicks had not been tried, nor had he been convicted of treason. She took the legal objection herself that the principal traitor ought first to have been convicted "because, peradventure, he might afterwards be acquitted as innocent after she had been condemned for harbouring him."

But Jeffreys would have none of it. He summed up furiously against her. The jury retired. It is said by almost all the contemporary authorities that:

"Thrice did the jury refuse to find a verdict of guilty and thrice did Lord Chief Justice Jeffreys send them back to reconsider their verdict."

The jury remained long in consultation. He then sent a messenger to tell them that, if they did not instantly return, he would adjourn the court and lock them up all night. So they came back. But not to find Alice Lisle guilty. They said that they doubted whether the charge was made out. Then Jeffreys said:

Jeffreys: The circumstances and management of the thing is as full proof as can be. I wonder what it is you doubt of.

Lisle: My Lord, I hope...

Jeffreys: You must not speak now.

So she was not allowed to speak anymore. The jury laid their heads together for near a quarter of an hour. I am sorry to say that they gave in. They did not hold out as good men of Hampshire should have done. They found her guilty. Trial by jury had failed because of an unjust judge. Jeffreys then pronounced sentence on her that she be burnt alive."

According to 'Macaulay History of England ', Vol 1, p 314, the clergy of Winchester Cathedral remonstrated with the chief justice and her sentence was commuted. She was put to death on a scaffold.

NH CHAN is a former Court of Appeal judge famous for his 'All is not well in the House of Denmark ' comment regarding judicial corruption. He was referring to the Kuala Lumpur High Court's commercial division located in Wisma Denmark . The quote is based on Shakespeare's 'Something is rotten in the state of Denmark '. He now lives in Ipoh . This is an edited version of his article.