these events had insidiously shaped the mind-set of the average Malaysian to a point where public confidence in the judiciary was at an all time low.

In a speech he made in September 1999, at the opening of the Commonwealth Law Conference held in Kuala Lumpur, Mr.R.R. Chelvarajah, the then chairman of the Bar Council of Malaysia, said -

��In this era of electronic communication, where every case of great interest receives world-wide attention (with every piece of evidence adduced and statement made in court, reported), it is not just the lawyers, judges and the law teachers and students who are competent to make an informed judgment as to the independence of a judiciary or the lack of it. The lay public are equally in as good a position to make their own judgment. Where decisions handed down, even if not always, but too often, challenge logic and reason, or result in injustice, confidence in the judiciary is bound to be undermined.

Of late, a number of decisions of Malaysian courts, given in a number of high-profile cases, have been adversely commented on both locally and internationally. These comments should not be brushed aside or ignored by castigating those who make them as meddlers in internal affairs. They should be seriously considered with a view to taking such remedial measures as may be required. Nothing is more debilitating to a nation than to have a judiciary which does not command the respect and confidence of the public.�

What has been equally worrisome is that with the constant bombardment of eyebrow raising judicial events, the public has come to a point where they have been almost completely de-sensitized about the issue and have begun to approach it with the laissez faire attitude of true �Malaysia boleh� spirit. This is a truly dangerous development for without the questioning minds of discerning citizens, there cannot be said to be true democracy.

It cannot be said enough: in a democracy, the check and balance essential for proper government can only exist if the judiciary is truly independent. The evolution of a society allows for the luxury of taking certain things for granted. We must however never delude ourselves into believing that the existence of one feature presumes the existence of the other. Reviewing the paths that have been taken and reminding ourselves of where we stand is therefore essential. In this context, the Zainur Zakaria affair will stand as a testament to how close to the brink we were.

The Zainur Zakaria Case

Zainur, a former president of the Malaysian Bar, was one of the defence lawyers of Dato� Seri Anwar Ibrahim who, at the material time, was being tried on charges of corrupt practice.

In the course of the trial, Anwar and his lawyers came to know of a Statutory Declaration made by a very senior lawyer. In a letter written to the Attorney-General, which was annexed to the Statutory Declaration, the lawyer had alleged that two of the deputy public prosecutors conducting the prosecution had tried to fabricate evidence against Anwar.

On the basis of these allegations, Anwar decided to make an application to the Court to disqualify the two prosecutors from continuing to be part of the prosecution team . He instructed his lawyers accordingly.

The application and the documents in support of it were filed by Zainur�s firm on Saturday, 28 November 1998. Almost immediately after the application was filed, the hearing was fixed for Monday, 30 November 1998.

Significantly, when the court sat on Monday, the judge, instead of dealing with Anwar�s application, called Zainur up and began to question him on the contents of the Statutory Declaration and the letter. The judge�s opening remark to Zainur was, �This notice of motion has been filed by you and you have to assume full responsibility for it�.

His questions to Zainur were put in such a manner as to call for specific answers and to confirm views he appeared to have already formed. When he had finished questioning Zainur, the judge made the following statement �

�This application with its affidavit in support is an interference with the course of justice as it has no basis. It therefore amounts to a pre-emptive step to undermine the integrity of a trial in progress. The object is to project an impression that the prosecution is anchored on fabricated evidence. This is a serious contempt and I have to act on it with all urgency to preserve the integrity of this trial. As I said in the early stage of this trial I will not hesitate to flex every inch of my judicial muscle to ensure that this trial proceeds smoothly. It is my duty to guarantee that persons who are following this trial are not hoodwinked in any way. �. In the light of the baseless application filed by you which is totally unsupported by the documents exhibited by you I propose to cite you for contempt for having attempted to undermine the integrity of this trial. Before I do so this court will show mercy towards you by dropping all further proceedings if you tender an unconditional apology to this court, to the AG, to [the two prosecutors in question] for filing an application which is absolutely baseless and which is an abuse of the process of court..�.

After a short adjournment to enable him to consider whether to tender an apology, Zainur informed the court that he was not able to. Thereupon he was cited for contempt of court.

An application by his lawyer that he be given a day or two to prepare his defence and to call the senior lawyer, who had affirmed the Statutory Declaration and written the letter, as a witness, was refused. Zainur decided to give evidence and went into the witness box. He testified that he had filed the application on Anwar�s instruction and in discharge of his professional duty as an advocate and solicitor. He was found by the judge to have committed contempt. In personally addressing the court on the question of sentence, Zainur explained how the application came to be made and said that it was not his intention to commit contempt. The following excerpts from the notes of proceedings recorded by the judge complete the picture �

Court: You do not wish to tender an apology in the terms that I described earlier?

En. Zainur: I regret I am unable to do that.

Convicted.

Zainur Appeals

Zainur was sentenced to three months� imprisonment. An application for a stay of execution was refused by the judge. An interim stay was, however, granted by the President of the Court of Appeal upon an urgent oral application made the same morning. Zainur was later released on bail and did not have to serve his sentence immediately. The interim stay was to have effect pending the hearing of Zainur�s appeal to the Court of Appeal against the order of committal and sentence.

To pause and reflect, in essence what had happened was this: a lawyer acting on the instructions of his client and backed by reasonable material, filed an application in court. Taking it to its logical conclusion, this could have been any application: one to amend pleadings, one to seek directions, or something as equally innocuous.

The lawyer was then convicted of contempt for having filed it - for having acted as he was required to do, ethically and legally, as an Advocate and Solicitor. And without having been given the right to be heard.

As a result � and just as significant - the application was never heard, and a litigant was never heard on what he considered to be of crucial effect.

Fairly fundamental, one would think, and reason enough for Zainur not to have been convicted. His conviction defied logic. The Court of Appeal however did not see it this way, and took the same view as the High Court judge. Zainur�s appeal was dismissed.

The Federal Court Rules

Zainur appealed further to the Federal Court which, in its recent decision, had no hesitation in setting aside the order of committal made by the High Court. Such was the importance attached by the court to the issues raised in the appeal that each of the three judges delivered separate judgments. In essence, the court found-

• that Zainur had acted properly in filing the application on behalf of Dato� Anwar because �one only needs to read � the letter and the statutory declaration to appreciate the fact that this cannot be baseless allegation� and that Dato� Anwar was entitled to address his complaint to the court
• that, having regard to the very serious nature of the charge, Zainur should have been given the adjournment he had requested for to enable him to prepare his defence and to call witnesses. In not granting the request the judge had deprived Zainur of the opportunity to present his case fully
• that there has been a blatant disregard of rules of procedure and, considering the frame of mind the High Court judge was in, he should have been the last person to deal with the alleged contempt by Zainur.
• that the High Court judge, by the manner he conducted the proceedings, in particular his interrogation of Zainur and his speedy finding of guilt without even allowing Zainur to call any witness, had given the picture that he was behaving as though he was acting as the lawyer for the two prosecutors.

In dealing with Zainur�s appeal, the Federal Court did not consider it necessary to examine in any detail the grounds of decision of the Court of Appeal. In the words of one of the judges of the Federal Court, �It is obvious that the Court of Appeal, in merely agreeing with the trial judge, fell into the same error�.

Zainur�s case was not the first where a decision of the High Court had been affirmed by the Court of Appeal without much scrutiny.

In the case where the Bar Council and the Malaysian Bar were prevented by an injunction from holding an extraordinary general meeting to discuss serious allegations of acts of impropriety made against the previous Chief Justice of Malaysia, the same thing happened. The Court of Appeal even went so far as to say that within the constitutional framework of this country, no person, body or institution, save parliament or a tribunal empanelled for the purpose of looking into the conduct of a judge, was permitted to discuss the conduct of judges, good or bad. In doing so, the Court of Appeal ignored the right to free speech that citizens of this country are ensured as a fundamental liberty.

While one can accept that judges sometimes fall into error, what was incredible was that the Bar�s application for leave to appeal to the Federal Court was subsequently dismissed as �having no merits� despite that particular issue being included as one of the proposed grounds of appeal.

Notwithstanding, and very tellingly, when Tan Sri Mohamed Dzaiddin was appointed as the Chief Justice of Malaysia late last year, one of the first things he did was to declare that public confidence in the judiciary was at an all time low due to events in the preceding decade.

Restoring Logic and Reason

Turning back to the Zainur affair, the question of the day would be what was it that caused the Federal Court to have decided the matter in a manner diametrically opposed to the positions taken by the High Court and the Court of Appeal. No new issues were canvassed, nor was there any radical change in circumstance, at least in those matters germane to the appeal. There was, however, one significant extra-judicial change: the appointment of Tan Sri Dzaiddin as a replacement to Tun Eusoff Chin. From the outset, Dzaiddin�s message was clear: it was time to clean up and reform the judiciary. Could this have been taken as a signal by judges?

Around the same time as the Zainur decision, Justice Hishamuddin delivered his pioneering judgment on issues pertaining to the Internal Security Act. Soon after, Justice Muhammad Kamil (left) delivered his now famous judgment and revealed the fact of alleged interference in his judicial functions.

Clearly, as it ought to be, the Chief Justice is inspiring his judges. Signs are beginning to be seen of a judiciary more ready to exercise judicial discretion based on independent thought and analysis of the law as it stands.

But if we accept this as an apt description of current events, then we are implicitly saying that it was not so prior to Dzaiddin�s appointment. There are therefore significant lessons to be learnt.

A last word. Judges will at times err; that is why appellate courts and procedures exist; but they are required at all times to decide in accordance with the law as they see it. As long as they do so, they will have discharged their constitutional function and they cannot be described as being �anti� one party or �pro� another.

As Zainur�s case shows judicial decisions which are seen to be patently unfair and unjust or which, to quote Chelvarajah, �challenge logic and reason� are not acceptable and, therefore, undermine confidence in the judiciary.

While it is too soon to tell for sure, some are beginning to say that we are in the midst of a renaissance. If that is truly what is happening, then it must be nurtured, for only then can we say that our evolution as a society is on track.