Sept 29, 2000 

Peter Goldsmith

LONDON: I first met Zainur Zakaria some five years ago. He came to London, as an officer of the Malaysian Bar Council (of which he was later to be chairman) to discuss the education of young Malaysian lawyers. A slight, courteous and softly spoken man, he would not have struck anyone as a rebellious firebrand. 

Yet this month, the Court of Appeal of Malaysia confirmed a three-month prison sentence on him for contempt of court. The circumstances speak volumes about the crisis in the justice system in Malaysia and the grave concerns about that system expressed by international commentators over the years and recently in the joint report of four international legal organisations, Justice in Jeopardy: Malaysia in 2000.

The sentence arises from the high-profile trial of former deputy prime minister Anwar Ibrahim. Zainur was one of the defence counsel. He applied to the court to have two deputy public prosecutors disqualified. The application was made on Anwar's instructions and was backed by his affidavit complaining that their conduct showed them to be personally interested to secure his conviction by questionable means. 

It was also supported by a statutory declaration of another lawyer, Manjeet Singh Dhillon, who acted for the defendant in a different trial, S Nallakaruppan, an associate of Anwar. Nallakaruppan was charged with a firearms offence which carried the death penalty. 

The prosecutors, according to Manjeet, had offered to prefer a lesser non-capital charge if Nallakaruppan gave evidence against Anwar. Manjeet's view, confirmed in his statutory declaration and never countered with any contradicting affidavit, was that the prosecutors suggested Nallakaruppan should fabricate that evidence. 

Clearly these were serious allegations which, one might have thought, required careful investigation. But when the application came before Justice Augustine Paul, he took great exception to its being made at all, describing it as baseless and unsupported by the documents, and threatened to cite Zainur for contempt unless he made an unconditional apology to the court, to the Attorney-General and the prosecutors involved. 

Zainur was given 30 minutes to decide. He decided he could not apologise without jeopardising the interests of his client and was summarily dealt with for contempt. Justice Paul refused an application for an adjournment, refused to allow Zainur to call any witnesses and imposed the three-month sentence. Only the intervention of the Court of Appeal prevented Zainur from going at once to jail. 

'Scandalising the court'

To any English lawyer or judge this seems extraordinary. The offence of "scandalising the court", the basis for the contempt sentence on Zainur, has not been prosecuted successfully in England for 60 years. To prevent lawyers from presenting applications or argument, even disagreeable, on the instructions of clients where there is evidence to support it contravenes the very basis of a fair trial. 

Indeed, it is not clear in what way the application made by Zainur fitted the definition of "scandalising the court". This was not an attack on the court, but on the conduct of two of the prosecutors. 

Justice Paul said that the application "had the tendency to deflect the court from a strict and unhesitating application of the letter of the law and from determining the issues exclusively by reference to the evidence". 

It is not apparent why; either the application was a bad one and unsupported ultimately by evidence - in which case it would have been rejected; or it was well founded, in which case the court should have wanted to root out misconduct and any tainted evidence. 

But the concern is not of one doubtful decision in a high-profile case where emotions run high; rather that it is symptomatic of a lack of support for freedom of expression and for fair trials. Sadly the incident is not isolated: other lawyers acting for Anwar have alleged harassment. The lead lawyer, the distinguished Karpal Singh, is to stand trial for sedition for remarks in court defending Anwar. 

Another lawyer and Bar Council official was sentenced to six months' jail for contempt for remarks he made distancing himself from a settlement in defamation proceedings arising from allegations of lack of judicial independence in Malaysia and in which he was a defendant. One judge has even granted an injunction restraining the Bar Council from debating a motion criticising the state of the administration of justice. 

Risking jail

It is therefore especially disturbing that the Court of Appeal in the Zainur case went out of its way to sound a warning to all lawyers of the risk of jail if they step out of line in court. Proper conduct in court is important but contempt applications should be used sparingly and never to stifle legitimate applications or arguments in court. 

The history of the Malaysian justice system is a sorry one: the dismissal of the most senior judge and the prosecution for sedition of Param Cumaraswamy, then deputy chairman of the Bar Council, now a UN special rapporteur, for example, have been well documented elsewhere. 

Radical reforms are needed: it is time for the Malaysian Government to act to increase confidence nationally and internationally in its administration of justice. 

Meanwhile, Zainur Zakaria waits on bail for a final appeal to see if he is to spend three months in jail for his efforts in trying to represent his client. 

LORD GOLDSMITH, QC is the co-chairman of the Human Rights Institute of the International Bar Association, one of the four bodies responsible for the report Justice in Jeopardy, full copies of which are available from the IBA: www.ibanet.org. The above article first appeared in The Times, London, on Sept 19, 2000