updated version

The Federal Court's decision today to unanimously allow the appeal of lawyer Zainur Zakaria against contempt of court and quash his three-months jail sentence saw a rare moment when the packed public gallery at the courthouse gave the three judges a warm round of applause.

In delivering their judgements separately, the judges were of the opinion that High Court judge Augustine Paul had not followed the proper procedure in finding Zainur guilty of contempt and imposing the subsequent custodial sentence.

The panel consisted chairman - the Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong and Federal judges Abdul Malek Ahmad and Haidar Mohamed Noor. The justices read out their judgments separately.

In an immediate reaction, Zainur said he felt 'vindicated, happy but unsurprised' with the ruling.

"The Federal Court has affirmed that the decision I made when filing an application on behalf of Anwar (Ibrahim), and that I was not given an opportunity to defend myself then," he said.

Shim said Augustine Paul had not exercised his discretion judiciously in finding Zainur to be guilty of contempt.

"The judge should have also allowed Zainur a short adjournment to prepare his defence," said Justice Shim. (After Zainur was found guilty, an application for a short adjournment by Zainur's counsel before sentencing was dismissed by Paul.)

Fabricated evidence

Paul found Zainur to be in contempt on Nov 30, 1998, for failing to apologise to the court for filing an application on behalf of jailed former deputy prime minister Anwar Ibrahim to remove prosecutors Abdul Gani Patail and Azhar Mohamad.

Zainur was one of the lawyers in Anwar's abuse of power case in 1998 and had filed the application seeking the removal of the two prosecutors, claiming that they had 'pressured' Anwar's tennis partner S Nallakaruppan, who was detained then for illegal possession of firearms, to fabricate evidence of sexual misconduct against Anwar in exchange for lenient punishment.

Zainur's appeal was dismissed by the Court of Appeal on Sept 5 last year.

Justice Shim also noted that Paul had decided on the matter by solely relying on documentary evidence, without calling any witnesses.

"In my view, Abdul Gani could have provided some answers to the allegations on the fabrication of evidence but he did not even file an affidavit," said Justice Shim.

"I disagree with both the High Court and the Court of Appeal that Zainur had acted negligently and recklessly in filing the application. The filing was justified," he added.

Well-prepared

Justice Abdul Malek also ruled that Paul had acted wrongly in finding Zainur guilty of contempt of court.

He said he found Paul to have acted in the matter 'as though he was arguing on behalf of the two prosecutors'.

"The affidavit was filed on a Saturday and on Monday he decided to initiate the contempt charge on Zainur. The was only one day in between, which was a Sunday, but the judge seemed to be well prepared for the matter," he said.

On Paul's denial to grant the short adjournment, Justice Abdul Malek said this was a 'blatant disregard to the procedure', adding that Paul, 'should be the last person to deal with this issue'.

He also said that the three-month custodial sentence imposed by Paul was the 'icing on the cake'.

He said that there were no basis for Zainur to apologise to the court as he had not acted wrongly in filing the application.

"It was the conduct of the judge that had resulted in the contempt proceedings and I find Zainur not to be guilty. His appeal is allowed."

Rounds of applause

Justice Haidar said that Zainur was merely performing his role as a lawyer to Anwar by filing the application.

"I also think that this is the first time an application to disqualify prosecutors had landed a lawyer in trouble," said Haidar.

He said that Anwar had the right by law to seek the disqualification of prosecutors if such an application was justified.

"If it was justified, then there is no question of Zainur acting reckless, negligent and in bad faith, or undermining the authority of the court," he said.

In this matter, he added, the application was justified and allowed Zainur's appeal to set aside the jail sentence.

The three judges, after delivering their judgements, received a warm round of applause from those seated in the public gallery.

The gallery was filled with Keadilan members, including deputy president Dr Chandra Muzaffar, Youth leader Low Chee Chong and other lawyers. Zainur is a Keadilan vice-president and a former Bar Council office-bearer.

Good for judiciary

When met, Chandra said the decision was the third judgment in two months that had 'upheld the canons of justice'.

He was referring to the recent cases where two Internal Security Act (ISA) detainees were ordered to be freed by the Shah Alam High Court on grounds that the arrests were done in bad faith, and an election petition ruling that the Likas election in Sabah was illegal as the electoral roll consisted of phantom voters.

Chandra expressed hope that more judges will 'continue to stand up for what is right' and restore public confidence in the judiciary.