MALAYSIA

Zainur Zakaria

former Chairman of the Malaysian Bar

lost his appeal on 5 September 2000, against a three-month jail sentence for contempt of court

The International Bar Association and the Centre for the Independence of Judges and Lawyers Denounce Legal Persecution of Lawyer in Malaysia

Zainur has been serving on the defence team of Anwar Ibrahim, Malaysia’s former Deputy Prime Minister, who was recently convicted of official corruption in a trial that sparked condemnation for unfairness. Anwar is currently being tried on sodomy charges in a second trial that has attracted international attention.

During the first Anwar trial, Zainur was convicted of contempt and sentenced to three months imprisonment after filing a motion accusing prosecutors of attempting to fabricate evidence. Many observers of the trial denounced the contempt charge because the judge offered Zainur no opportunity to prove his contention.

The high court sentenced Zainur in November 1998 when he was one of the lawyers defending Anwar in his first trial for abuse of power. Zainur was jailed after refusing to apologise to the court for filing Anwar’s application to remove two prosecutors, Abdul Gani Patail and Azahar Mohamed, from the case. Anwar, in the application, alleged that the two were involved in attempts to fabricate evidence of sexual offences against him.

Zainur is the second lawyer to fall foul of the law while defending Anwar. Karpal Singh was accused of sedition after alleging during Anwar’s second trial for sodomy that "people in high places" may have been behind an alleged plot to poison his client with arsenic. Karpal faces a fine or up to three years’ jail if convicted. Local lawyers have expressed deep dismay over his case, saying it is unprecedented to charge a lawyer for comments made in court.

The International Bar Association (IBA) and the Centre for the Independence of Judges and Lawyers (CIJL) of the International Commission of Jurists (ICJ) view with grave concern the Malaysian Court of Appeal’s judgement dismissing lawyer, Zakaria’s, appeal against a three-month jail sentence for "contempt of court". Mr Zakaria has been granted bail pending appeal to the Federal Court.

The Court of Appeal’s 31-page judgement delivered on 5 September 2000, affirmed the custodial sentence summarily imposed on Mr Zakaria, a former Chairman of the Malaysian Bar, and one of former Deputy Premier Anwar Ibrahim’s defence counsel for attempting to introduce claims of attempts to fabricate evidence against Mr. Ibrahim. In giving judgement the Court of Appeal drew attention to "an increase in contempt offences being committed by advocates and solicitors. As such we feel that the time is now ripe for imposition of custodial sentences in contempt offences".

The IBA and CIJL regard the upholding of an advocate’s duty to represent his client without fear as of great importance. Article 14 (a) of the International Covenant on Civil and Political Rights guarantees " a fair and public hearing by a competent, independent and impartial tribunal " in the determination of rights and obligations. IBA and ICJ concur with Andrew Nicol QC’s statement in "Justice in Jeopardy: Malaysia in 2000 " that "There can be no fair hearing and legal representation cannot be effective unless a party’s advocate is free to advance all arguments and lead admissible evidence which can reasonably be said to support the client’s case. It is the recognition that lawyers must have this freedom which lies behind the absolute privilege which they enjoy (in the common law system at least) against actions for defamation for anything said or done in court ".

The IBA and CIJL are particularly concerned that the remarks of the Court will be taken as a deterrent to other lawyers in Malaysia from defending their clients to the best of their abilities, and without fear.

Background: In November 1998, Zainur Zakaria was sentenced to three months’ imprisonment for "contempt of court" during the Anwar Ibrahim trial. He was sentenced after refusing to apologise to the Court for submitting an affidavit alleging that prosecutors attempted to fabricate evidence against Mr Anwar.

"Justice in Jeopardy: Malaysia in 2000 " examines the relationship between the Executive, legal profession and judiciary in Malaysia and discusses the issue of contempt of court. It is a joint report of four leading legal organisations. The report can be read and downloaded from www.ibanet.org.