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The Judiciary and Human Rights 252525 Tion for Contempt of Court PP3739/12/2001 ISSN 0127 - 5127 / RM3.00 / 2001:21(6) WILL THETHEWILL REALREALREAL JUDICIARYJUDICIARY PLEASEPLEASEPLEASE STANDSTAND UPUP Aliran Monthly 21(6) Page 1 COVER STORY Restoring Logic And Reason The Zainur Zakaria affair: an analysis of judicial independence by Raja Aziz Addruse & Malik Imtiaz Sarwar alaysians had, in the last MM decade or so, come to see MMM the Judiciary as an ex- tension of the Executive, if not in fact, then in appearance. This was hardly surprising when in the last decade or so, a series of events had unfolded which all too sadly seemed to point that way. Commencing with the removal of Tun Salleh from office to, more re- cently: • the conviction of Zainur Zakaria for contempt for hav- ing made the mistake of filing an application in court on the instructions of a client in a cause celebre, • the ruling by the Court of Ap- peal that no person, body or institution could discuss the conduct of a judge, good or bad, except parliament (even in the face of serious allegations of impropriety against a current Made an application to disqualify two I will not hesitate to flex every inch Chief Justice), and, prosecutors of my judicial muscle • a retirement address by the out- going President of the Court of Appeal, in which he talked of long fruitful years (as a judge) of service to the government, these events had insidiously shaped the mind-set of the aver- age Malaysian to a point where public confidence in the judiciary was at an all time low. Alleged interference in his judicial Time to clean up and reform the In a speech he made in September functions Judiciary Aliran Monthly 21(6) Page 2 EDITOR'S NOTE Will The Real Judiciary Stand Up? CONTENTS This isn’t a cheeky question to ask of our judiciary. For too long, judicial independence has either been relegated to a memory or destined to remain a dream. COVER STORY Some recent cases give hope that we may yet break ••• Restoring Logic and Reason 222 the soporific spell that had been cast by a conserva- tive judiciary, a weak legislature and a manipula- ••• The Zainur Zakaria Story 777 tive excecutive since 1988. ••• In Defence Of Justice Muhammad 131313 ••• Phantoms On The Roll In Sabah 151515 Raja Aziz Addruse and Malek Imtiaz Sarwar ana- ••• Name Justice Muhammad's Caller 242424 lyse judicial independence by reviewing the case of •• Name Justice Muhammad's Caller 2424 Zainur Zakaria. It has taken Zainur, a member of Anwar Ibrahim’s first team of defense lawyers, three FEATURES years to get the Federal Court to overturn his convic- ••• The Judiciary And Human Rights 252525 tion for contempt of court. At the heart of the Zainur ••• When Darkness Fears The Light 282828 case were uninvestigated allegations that public •• When Darkness Fears The Light 2828 prosecutors tried to ‘create evidence’ against Anwar. ••• When Two's A Crowd 303030 We re-enact the ‘Zainur Zakaria story’ from official ••• A Lifelong Commitment To The Poor 33 documents so that you, dear readers, all members of ••• Zero Tolerance For Domestic the Court of Public Opinion can judge the conduct ViolenceViolenceViolence 363636 of the parties in this case. ••• The UEM Takeover 404040 Tommy Thomas reminds us that our system of gov- ernment is based on the supremacy of the Constitu- REGULARS tion, and not Parliament. He surveys critical cases ••• Thinking Allowed 191919 since Merdeka to show that the meaningful protec- •• Thinking Allowed 1919 tion of human rights requires the judiciary to de- ••• Current Concerns 323232 fend fundamental liberties enshrined in our Consti- tution against legislative and executive assault. OTHERSOTHERSOTHERS ••• Subscription Form 383838 Many Malaysians believe the judiciary has arrived •• Subscription Form 3838 once more at a crossroad. But how will the judiciary proceed?. Will the judiciary progress towards an independent, assertive and creative stance in sup- port of human rights and the rule of law? Or will it slide into the straitjacketed mould that left citizens at the mercy of the state’s hateful rule by law? Hence: Will the real judiciary please stand up? Published by Aliran Kesedaran Negara (ALIRAN) 103, Medan Penaga, 11600 Jelutong, ALIRANALIRANALIRAN is a Reform Movement dedicated to Penang, Malaysia. Justice, Freedom & Solidarity and listed on the Tel : (04) 658 5251 Fax : (04) 658 5197 roster of the Economic and Social Council of the United Nations. Founded in 1977, Aliran welcomes Homepage : http://www.malaysia.net/aliran all Malaysians above 21 to be members. Contact the Hon. Secretary or visit our webpage. Printed by Angkatan Edaran Enterprise Sdn. Bhd. Lot 6, Jalan Tukang 16/4, Seksyen 16, 40000 Shah Alam, Selangor Darul Ehsan. Aliran Monthly 21(6) Page 3 1999, at the opening of the Com- to approach it with the laissez faire cation to the Court to disqualify monwealth Law Conference held attitude of true ‘Malaysia boleh’ the two prosecutors from continu- in Kuala Lumpur, Mr.R.R. spirit. This is a truly dangerous ing to be part of the prosecution Chelvarajah, the then chairman of development for without the ques- team . He instructed his lawyers the Bar Council of Malaysia, said - tioning minds of discerning citi- accordingly. zens, there cannot be said to be “…In this era of electronic com- true democracy. The application and the docu- munication, where every case of ments in support of it were filed great interest receives world-wide It cannot be said enough: in a de- by Zainur’s firm on Saturday, 28 attention (with every piece of evi- mocracy, the check and balance November 1998. Almost immedi- dence adduced and statement essential for proper government ately after the application was made in court, reported), it is not can only exist if the judiciary is filed, the hearing was fixed for just the lawyers, judges and the truly independent. The evolution Monday, 30 November 1998. law teachers and students who of a society allows for the luxury are competent to make an in- of taking certain things for Significantly, when the court sat formed judgment as to the inde- granted. We must however never on Monday, the judge, instead of pendence of a judiciary or the lack delude ourselves into believing dealing with Anwar’s applica- of it. The lay public are equally in that the existence of one feature tion, called Zainur up and began as good a position to make their presumes the existence of the to question him on the contents of own judgment. Where decisions other. Reviewing the paths that the Statutory Declaration and the handed down, even if not always, have been taken and reminding letter. The judge’s opening remark but too often, challenge logic and ourselves of where we stand is to Zainur was, “This notice of reason, or result in injustice, con- therefore essential. In this context, motion has been filed by you and fidence in the judiciary is bound the Zainur Zakaria affair will you have to assume full responsi- to be undermined. stand as a testament to how close bility for it”. to the brink we were. Of late, a number of decisions of His questions to Zainur were put Malaysian courts, given in a The Zainur in such a manner as to call for number of high-profile cases, Zakaria Case specific answers and to confirm have been adversely commented views he appeared to have al- on both locally and internation- Zainur, a former president of the ready formed. When he had fin- ally. These comments should not Malaysian Bar, was one of the de- ished questioning Zainur, the be brushed aside or ignored by fence lawyers of Dato’ Seri Anwar judge made the following state- castigating those who make them Ibrahim who, at the material time, ment – as meddlers in internal affairs. was being tried on charges of cor- They should be seriously consid- rupt practice. “This application with its affida- ered with a view to taking such vit in support is an interference remedial measures as may be re- In the course of the trial, Anwar with the course of justice as it has quired. Nothing is more debilitat- and his lawyers came to know of no basis. It therefore amounts to a ing to a nation than to have a ju- a Statutory Declaration made by pre-emptive step to undermine diciary which does not command a very senior lawyer. In a letter the integrity of a trial in progress. the respect and confidence of the written to the Attorney-General, The object is to project an impres- public.” which was annexed to the Statu- sion that the prosecution is an- tory Declaration, the lawyer had chored on fabricated evidence. What has been equally worrisome alleged that two of the deputy This is a serious contempt and I is that with the constant bombard- public prosecutors conducting have to act on it with all urgency ment of eyebrow raising judicial the prosecution had tried to fabri- to preserve the integrity of this events, the public has come to a cate evidence against Anwar. trial. As I said in the early stage of point where they have been al- this trial I will not hesitate to flex most completely de-sensitized On the basis of these allegations, every inch of my judicial muscle about the issue and have begun Anwar decided to make an appli- to ensure that this trial proceeds Aliran Monthly 21(6) Page 4 smoothly. It is my duty to guaran- “Court“Court“Court: You do not wish to tender think, and reason enough for tee that persons who are follow- an apology in the terms that I de- Zainur not to have been convicted.
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