The criminal intimidation case against lawyer P Uthayakumar for allegedly threatening a police officer has brought adverse international attention on Malaysian authorities for what has been billed as the "prosecution of lawyers."

The Geneva-based International Commission of Jurists (ICJ) issued a 10-page report yesterday condemning the charges against Uthayakumar, and his arrest and detention by the police over the offences.

"The Malaysian legal system has been under international scrutiny for its prosecution of lawyers, particularly through the use of the contempt power.

"The arrest and prosecution of Mr Uthayakumar should thus be considered within the context of previous prosecutions against lawyers and previous reports that lawyers in Malaysia have been facing difficulties in carrying out their work freely and independently," said the ICJ's Centre for the Independence of Judges and Lawyers.

The ICJ was referring to three charges made against Uthayakumar in January, the first two under section 228 of the Penal Code for contempt of court and the third under section 506 for criminal intimidation of chief inspector G Ponniah.

The lawyer was alleged to have said "You watch out, I'll fix you, we will fix you" to Ponniah during an inquest by the Sepang magistrate's court on Sept 3 last year into the death of S Tharma Rajen ( photo ) while in police custody.

Uthayakumar, who was representing the family of the deceased, was also alleged to have insulted the magistrate for ignoring an order to desist from his line of questioning towards Ponniah.

Although the prosecution later withdrew the contempt case against Uthayakumar, it filed an appeal against the dismissal of the criminal intimidation case by the Shah Alam High Court in May.

The case is now pending an appeal hearing.

Unnecessary proceedings

According to the report, the ICJ had appointed an observer, Charles Briefel, a barrister of law from England, to observe and report on the Shah Alam proceedings on April 8 this year.

The commission lauded the ruling of Justice Suriyadi Halim Omar for the case to be dropped and for the parties involved to let goodwill prevail but expressed concern over other aspects of the case, particularly with the decision of the AG to proceed against the lawyer.

"Although the ICJ welcomes the eventual decision of the AG to withdraw the first two charges, it is disappointed that the AG nevertheless chose to proceed on the remaining criminal intimidation charge."

The ICJ said the authorities should be reminded "not to identify lawyers with their clients' causes and allow lawyers to perform their professional functions without intimidation, hindrance, harassment or prosecution."

Instead of initiating criminal proceedings, the commission said the prosecution should have referred any charge of alleged unprofessional conduct to the disciplinary board of the Bar Council.

In its conclusive passage, the ICJ also noted that the prosecution of Uthayakumar appeared to extend beyond the concurrent case to the lawyer's work over the past decade in a number of cases relating to abuse of police powers.

"It is therefore not without coincidence that this lawyer was arrested on the steps of a court where he was representing the family of a youth who died in police custody.

"This high profile arrest has attracted unfavourable attention onto the authorities as well as on the prosecution who sought to hinder, intimidate or harass Uthayakumar in his work as a human rights lawyer," the report added.

Training for police

Meanwhile, the ICJ also issued a cautionary note to judges to exercise "considerable care" before invoking contempt charges against lawyers.

"Since prosecution under section 228 or the use of the contempt power has a direct impact on the ability of lawyers to provide effective representation - a guarantee of the right to a fair trial - considerable case must be taken before charging and arresting lawyers for this offence," it said.

As an alternative, the commission recommended that judges invoke judicial caution without resorting to the penal code.

"The real purpose of sanctions such as the law on insulting a public servant during judicial proceedings, or contempt of court, is to prevent conduct which prejudices the right to a fair trial, and not actions which individual judges perceive offensive to their dignity."

Finally, the ICJ also recommended that police officers be fully instructed and trained regarding the role of lawyers.

"(The police) must refrain from any interference with, or put undue pressure on, lawyers when the latter are acting in their professional capacity. Guidelines should be established on police behaviour in relation to lawyers and introduced as part of police training," the commission added.

When contacted, Uthayakumar said the report was an "icing on the cake" for his cause in the pursuit of justice.

Commenting on the report, Uthayakumar said it was "fair and independent". "I am happy that the report upheld the independence of lawyers to discharge their duties without fear or favour."