Lawyer Zainur Zakaria was summarily convicted of ‘contempt in the face of the court’ on November 1998 and sentenced to 3 months in jail. As defense counsel for former Deputy Prime Minister, Anwar Ibrahim, he was bringing an application to have two of the prosecutors removed from the case on the grounds that they had been involved in attempting to fabricate evidence against Anwar Ibrahim and therefore would be called as witnesses. In support of the application was filed the affidavit of Anwar to which was attached the statutory declaration of the lawyer to whom the prosecutors were alleged to have made their proposals. Mr. Zakaria was convicted and sentenced after being given 30 minutes to apologize. In September 2000, the Malaysian Court of Appeal dismissed his appeal and in January 2001 the Federal Court heard his final appeal and judgment is reserved. Mr. Zakaria was free on bail pending appeals. Mr. Zakaria’s appeal was dismissed at the Court of Appeal level and in June 2001 the Federal Court, Malaysia’s highest court, set aside both Mr. Zakaria’s conviction for the contempt of scandalizing the court and the three-month custodial sentence. The appeal to the Federal Court was heard in January 2001 and judgment was reserved until June 2001. Zainur Zakaria is a prominent Malaysian lawyer, former Chairman of the Malaysian Bar Council (Malaysian lawyers governing body) and is on the Supreme Council of the opposition Keadilan Party. He ran for office in a Kuala Lumpur riding in November 1999 and was defeated by less than 200 votes in an election that the Canadian government concluded had “serious irregularities.” Until his conviction for contempt he was one of the defense lawyers for former Deputy Prime Minister Anwar Ibrahim.
LRWC was concerned that:
Zainur Zakaria’s conviction offended Malaysian national law, the common law that is part of Malaysian law and the minimum standards regarding rights to representation and rights to advocate that have been accepted as forming the foundation of both democracies and the rule of law.
the conviction of Zainur Zakaria was contrary to the Federal Constitution Articles 5(1), 7(1) and 10(1)(a). The citation for contempt contravened the rights to representation set out in the Basic Principles on the Role of Lawyers, Articles 1, 13, 14, and 15. The duty of governments and courts to ensure that lawyers are free to provide full representation without threat to their personal safety are further outlined in Articles 16 to 22.
Zainur Zakaria’s conviction also contravened the principles set out in the Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, (Declaration on Human Rights Defenders) Articles 5, 9(1), 9(3)(a) & (c), 11, 12, 17 and 18(2) Such use of contempt doesn’t only preclude fair trials by preventing full representation but also prevents a proper analysis of the law and prohibits meaningful discussion of cases before the court.
The resulting prejudice to fair trials is inevitable in criminal trials where the accused is always against the state, where the authorities that gather the evidence must be open to question as a part of the process of elucidation of the truth. Such a use of contempt powers tends to contribute to destroying belief in the law and legal system as an effective alternative to brute force.
the ambiguity of the offence of scandalizing the court allows judges to pursue their personal predilections thereby entrusting the limits of advocacy rights to the moment-to-moment judgment of the judge whose sensibilities have been offended by some behaviour of counsel.
LRWC ACTION
LRWC wrote letters to the Malaysian Human Rights Commission urging the Commission to uphold the various principles relating to lawyers’ advocacy rights by calling for an acquittal as an intervener. LRWC also wrote to the Attorney General of Malaysia asking him, as chief law officer of Malaysia to order an investigation of the allegations of evidence fabrication. The Malaysian Human Rights Commission saying that our concerns will be considered.
