The International Bar Association (IBA) and the ICJ deplore the dismissal of lawyer Zainur Zakaria’s appeal against a 3-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 ICJ’s Centre for the Independence of Judges and Lawyers 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 ICJ’s Centre for the Independence of Judges and Lawyers 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.
Note: «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