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Thursday, June 28, 2001

Federal Court quashes contempt conviction against lawyer

By Shaila Koshy

KUALA LUMPUR: The Federal Court freed lawyer Zainur Zakaria of a contempt conviction yesterday.

The three-man panel overturned the conviction and three months' jail sentence imposed on Zainur by the High Court during the hearing of the Datuk Seri Anwar Ibrahim's corruption trial.

The three Federal Court judges wrote separate judgments in allowing Zainur's appeal.

Chief Judge of Sabah and Sarawak Justice Steve Shim and Federal Court Justices Abdul Malek Ahmad and Haidar Mohd Noor had reserved judgment on the appeal on Jan 31.

There were cheers and applause from the packed public gallery after each judgment was read.

At the end of the proceedings, Zainur's wife Lily Hanem Ahmad, friends and other lawyers rushed to congratulate him as he walked out of the dock.

Said Zainur: "I thank Allah for the clear vindication of the stand I took. I also thank my counsel, supporters and the judges for discharging their duty."

On Nov 30, 1998, Justice S. Augustine Paul convicted Zainur of contempt after ruling that Anwar's application to disqualify two senior DPPs in the corruption trial was baseless.

The application was based on a statutory declaration made by lawyer Manjeet Singh Dhillon dated Nov 9, 1998, and a letter he wrote to the Attorney-General dated Oct 12 accusing Senior DPPs Datuk Abdul Gani Patail and Datuk Azahar Mohamad of threatening his client Datuk S. Nallakaruppan--who was facing the death penalty if convicted of unlawful possession of 127 bullets--to fabricate evidence on Anwar's involvement with five women.

Justice Shim said in his 24-page judgment the summary procedure invoked by Justice Paul in citing Zainur resulted "in injustice to Zainur."

"To merely rely on documents, without more, would be an injudicious discretion.

"It is unthinkable for a person to be sent to prison unless he has been given the opportunity of answering the charge against him."

Justice Shim also held that Anwar was justified in complaining of Abdul Gani's attempt to get Nallakaruppan to fabricate evidence against him.

"There was no abuse of the process of the court having the effect of undermining the authority and/or integrity of the trial in progress."

"Looking squarely at the picture from his standpoint and given the fact that at the material time, he had not as yet been charged with any sexual involvement with other women (other than the allegation by Ummi Hafilda Ali that Anwar had an affair with her sister-in-law Shamsidar Taharin), I would think that his complaint was prima facie justified," said Justice Shim.

He said a close scrutiny of Ummi's letter only disclosed Nallakaruppan's involvement in the alleged relationship between Anwar and Shamsidar.

Justice Shim said that Abdul Gani could have answered the question of why Nallakaruppan was asked to give evidence of Anwar's alleged involvement with the women but he was neither called as a witness nor did he file an affidavit in response to Anwar's supporting affidavit.

He added that even Manjeet Singh was not called to give evidence on his conclusions about the two senior DPPs.

Justice Shim also said the trial judge had failed to consider that Zainur could not "alert Manjeet Singh as to the folly of his conclusions" based on Ummi's allegation when Anwar, in the course of his trial, had denied that he had extramarital affairs.

He said there was no explanation as to why Abdul Gani had thought it fit to seek the co-operation of Nallakaruppan, adding: "As this was not done, we are left with an unenviable position of questioning the motive or motives of Abdul Gani."

In view of the circumstances, Justice Paul's view--that Abdul Gani's request for information was a lawful exercise with no undertones of impropriety--was clearly misconceived, he said.

He added that the Court of Appeal's endorsement of that view on Sept 5 last year was "tainted with the same misconception."