The case of lawyer Zainur Zakaria, who was found guilty of contempt of court in the course of executing his duty, is akin to "shooting the messenger", his counsel Sulaiman Abdullah today told the Federal Court which sat in Penang to hear his appeal.

Sulaiman also said that if anyone were guilty in this case, it would be he himself and fellow counsel for former deputy prime minister Anwar Ibrahim, Raja Aziz Addruse, since they were the ones who had asked Zainur to file an application on Anwar's behalf.

"This is a clear case of shooting the messenger," said Sulaiman, adding that Zainur merely did the paper work and was just a "postman".

Zainur's appeal against his three-month jail sentence, which was upheld by the Court of Appeal, was heard by a three-member panel comprising justices Haidar Mohd Noor, Abdul Malik Ahmad and Steve Shim Lip Kiong.

Appeal Court judge Ahmad Fairuz Sheik Abdul Halim read the judgment dismissing Zainur's appeal to overturn the High Court decision on Nov 30, 1998.

The decision found Zainur to be in contempt for failing to apologise to the court for filing an application on behalf of Anwar to remove prosecutors Abdul Gani Patail and Azhar Mohamad.

In an earlier submission, Raja Aziz maintained that the act of filing the application to remove the two prosecutors on behalf of Anwar does not make Zainur guilty of contempt of court.

He said Anwar had complained that the two were allegedly involved in a move to fabricate evidence of sexual misconduct against him by extracting evidence from S Nallakaruppan, who was detained for illegal possession of firearms.

He said the two had made an effort to implicate Nalla as an accomplice to Anwar's sexual misconduct offences and offered to lessen Nalla's sentence if he gave evidence against Anwar.

Right to complain

Raja Aziz argued that Anwar had the right to make such complaints and the High Court judge, Justice Augustine Paul, should have looked into the facts of the complaints instead of dismissing the application.

"Justice Paul dismissed Anwar's application and accused Zainur of being reckless and negligent, that he had erred in law and acted in bad faith.

"Justice Paul had also found the application to be an interference into the administration of justice, that it undermined the integrity of the prosecutors and was an abuse of the court process," he added.

Raja Aziz maintained that other than having the right to make complaints, Anwar relied on affidavits and statutory declarations to support his application, therefore the question of baseless allegations put forward by Justice Paul does not arise.

He said that the "learned judge had been overly protective over the two prosecutors although he should have acted independently, impartially and not take sides".

Supporting Raja Aziz, Sulaiman said it was wrong for Justice Paul to equate the integrity of the court with that of public prosecutors.

"Which is more important - to shut the application and prolong the suspicion of the public that indeed there was something in Anwar's application, or allow the application and show that it has no merit?" asked Sulaiman.

"There is a total misunderstanding and misapprehension of the role of the lawyers here," he added, referring to Zainur's case.

Whose 'mens rea' involved?

Raja Aziz also maintained that since contempt of court is criminal in nature, the court must examine the mens rea (guilty mind) of the appellate and whether the contempt had been carried out beyond reasonable doubt.

"But since the application was made by Anwar, whose mens rea should we examine - Anwar's or Zainur's?" asked Raja Aziz.

The other defence counsel for Zainur are Christopher Yong and Ambiga Sreenivasagam. Bar Council secretary Roy Rajasingam was also present in court today.

Zainur, who is also Keadilan vice-president, was one of Anwar's lawyers in his corruption case.

The hearing continues tomorrow when public prosecutors Mohd Yusof Zainal Abidin, K Muniandy and Bahari Baharuddin will argue their case.