In a report released today on the trial of a Malaysian human rights lawyer representing the family of a youth who died in police custody, the ICJ’s Centre for the Independence of Judges and Lawyers finds that the aim of the prosecution was to intimidate and harass him in his work as a lawyer.
I. Executive Summary
This is the final report on the criminal proceedings against Mr. P. Uthayakumar, a human rights lawyer and solicitor of the High Court of Malaya at Kuala Lumpur who was charged with two offenses of insulting and interrupting a public servant during judicial proceedings and one offense of criminal intimidation contrary to Articles 228 and 506 of the Penal Code. The ICJ’s Centre for the Independence of Judges and Lawyers appointed an observer, Mr. Charles Briefel, Barrister of England and Wales, to observe and report on the proceedings which took place on 8 April 2003 at the High Court at Shah Alam. This is the first such intervention by the High Court in Malaysia in proceedings of this nature against a lawyer.
The charges stem from Mr. Uthayakumar’s alleged conduct during and immediately after a coroner’s inquest hearing at Sepang Magistrates Court on 3 September 2002 into the death of a nineteen-year old youth whilst in police custody. Mr. Uthayakumar was acting on a pro-bono basis on behalf of the family of the deceased and was arrested at the steps of the court on 16 January 2003, detained overnight in police custody and then charged. After his arrest and first appearance at the Magistrates Court on 21 January 2003 on the criminal charges, Mr. Uthayakumar applied to the High Court for “Revision” of the case against him, pursuant to Section 323 of the Criminal Procedure Code, requesting that he be discharged. The basis of the Application for Revision to the High court was that the prosecution was groundless, frivolous, vexatious, brought male fides and constituted an abuse of process.
At the High Court hearing, the prosecution confirmed its intention to withdraw the first two charges of insulting and interrupting a public servant during judicial proceedings. This decision followed representations made in March to the Attorney-General by the United Nations Special Rapporteur on the independence of judges and lawyers, Dato Param Cumaraswamy. Legal argument therefore concentrated on the remaining charge of criminal intimidation. The High Court ruled in favor of Mr. Uthayakumar on 5 May, ordering that he be discharged. On 29 May Mr. Uthayakumar appeared at the Sepang Magistrates Court and was formally discharged. The Attorney General has filed a notice of appeal to the Court of Appeal against the decision of the High Court. The Attorney General has also submitted a formal complaint against Mr. Uthayakumar to the Disciplinary Board of the Bar Council.
The Malaysian legal system has been under international scrutiny for its prosecution of lawyers. The arrest and prosecution of Mr. Uthayakumar should thus be considered within the context of previous prosecutions against lawyers and previous reports that lawyers in Malaysia have been facing difficulties in carrying out their work freely and independently. Within this context, it was inevitable that Mr. Uthayakumar’s case would attract considerable attention and elicit criticism about the authorities who displayed a lack of judgment and the prosecution which sought to hinder, intimidate and harass Mr. Uthayakumar in his work as a human rights lawyer.
The ICJ’s Centre for the Independence of Judges and Lawyers is concerned about the original decision of the Attorney-General  to proceed against Mr. Uthayakumar and is troubled about the circumstances of Mr. Uthayakumar’s arrest, his detention and treatment in custody. Although the ICJ welcomes the eventual decision of the Attorney General to withdraw the first two charges, it is disappointed that the Attorney-General nevertheless chose to proceed on the remaining criminal intimidation charge: Mr. Uthayakumar, therefore, still faced the prospect of being sentenced to a term of imprisonment of up to seven years.
The ICJ’s Centre for the Independence of Judges and Lawyers commends the decision of the High Court to order the discharge of the criminal intimidation charge and welcomes the forthright comments of the judge in support of the independence of lawyers. In the circumstances of this case, the ICJ believes that any charge of alleged unprofessional conduct could have been dealt with by the Disciplinary Board of the Bar Council after the conclusion of the inquest proceedings in which Mr. Uthayakumar was appearing without resorting to his arrest, detention and criminal prosecution. The ICJ reminds the authorities in Malaysia of their international obligations not to identify lawyers with their clients’ causes and allow lawyers to perform their professional functions without intimidation, hindrance, harassment or prosecution.
A. Information about the Defendant
Mr. Uthayakumar is an advocate and solicitor of the High Court of Malaya at Kuala Lumpur. He was called to the Malaysian Bar on 23 January 1993. He is legal advisor to the Police Watch and Human Rights Committee and Secretary General of a new political party, the Malaysian Peoples Reform Party, (Party Reformasi Insan Malaysia, PRIM). Over the last ten years Mr. Uthayakumar has acted in a number of cases relating to abuse of police powers, deaths in police custody, police shootings, and police inaction.  He frequently appears on a pro-bono basis in high profile cases alleging human rights abuses against the Royal Malaysian Police Force, acting on behalf of victims or the families of victims. In 2002, Mr. Uthayakumar had conduct of three cases of death in police custody from 21 June 2002 to 4 August 2002 and another three cases of fatal shootings by the police between 24 August to 7 September 2002. He has lodged over a hundred complaints against the police. He has drawn attention to the fact that 2002 saw a significant increase in deaths in police custody and that from January to September 2002 a total of 18 persons died in police custody “representing one death in police custody every 2 weeks”. This issue was raised in Parliament with the Deputy Home Affairs Minister Datuk Chor Chee Heung on 14 October 2002.
B. The Prosecution Case
The Coroner’s Inquest at Sepang Magistrates Court which is the subject of the charges against Mr. Uthayakumar relates to the death in custody of a 19 year old youth identified as Tharmarajen. Tharmarajen was arrested by the Ibu Pejabet Kontijen police on 3 April 2002 and detained at a number of police stations for consecutive periods of 14 days. At Putrajaya Police Station, after a total period of police detention of approximately 2 months, he became seriously ill and, after being conveyed to Putrajava hospital, died on 21 June 2002. The family of the deceased alleges that he was subjected to cruel, inhumane and degrading treatment. Mr. Uthayakumar has been representing the family on a pro-bono basis (at the date of writing this report, the inquest has yet to have been concluded).
At the first day of the inquest on 3 September 2002, Mr. Uthayakumar was cross-examining police witness P. From the outset, the family of the deceased has blamed P, who was the arresting and investigating officer, for the death of Tharmarajen. By all accounts, the exchange in court became increasingly heated and a number of people in the public gallery became highly agitated, venting their anger at P. During cross-examination Mr. Uthayakumar accused P of criminal negligence, and threatened to submit a complaint against the officer to the Bukit Aman Police Headquarters. The magistrate ordered Mr. Uthayakumar to stop the line of questioning and that if he did not, he would be ordered to leave the court. Mr. Uthayakumar responded that he would not leave the court and continued with his questioning, at which point the magistrate adjourned the hearing.
Immediately after the case was adjourned, P and lawyers from the Deputy Public Prosecutor’s office alleged that Mr. Uthayakumar threatened P. Prosecution statements give varying versions of what Mr. Uthayakumar is alleged to have stated to P – “You watch out, I will fix you, we (will) fix you” or just “I will fix you” or just “We will fix you”. Mr Uthayakumar denies using such language but admits using words to the effect that he was serious about submitting a complaint against P to Bukit Aman Police Station.
C. The Arrest
Mr. Uthayakumar was arrested some four and a half months after the alleged incident. The arrest took place on 16 January 2003 at 4:30 p.m. on the steps of Sepang Magistrates’ Court after a further hearing of the inquest into the death of Tharmarajen in which Mr. Uthayakumar was continuing to act on behalf of the deceased’s family. Mr. Uthayakumar alleges that between 20 to 30 officers took part in his arrest in the full view of his clients, the press and the public. He alleges that he was not informed of the grounds of arrest, contrary to Article 5(3) of the Federal Constitution. He was conveyed to Sepang Police Station where he was allegedly kept in police custody until 5:30 p.m. the next day i.e. for 25 hours and thereby in contravention of Article 5 of the Federal Constitution which stipulates a maximum of 24 hours. The police claim that he was released at 1:30 p.m. By either account, Mr. Uthayakumar was kept in custody overnight. During his detention he alleges that he was verbally abused, stripped to his underwear and denied basic living conditions (toiletries brought to the police station by his family) in breach of the Lock Up Rules 1953. He also states that he was denied access to his family. On 20 January 2003, Mr. Uthayakumar lodged two complaints concerning his arrest and treatment in police custody, the first being against the officers who allegedly mistreated him, and the second against P for lodging the false report which resulted in his arrest. Mr. Uthayakumar points out that unlike the complaint made against him by P, his complaint has never been investigated. This indicates, in his view, a lack of an even-handed approach by the authorities and breaches Article 8 of the Federal Constitution that states that “all persons are equal before the law”.
Mr. Uthayakumar was charged on 21 January 2003 (the day after he submitted the two complaints concerning his arrest and detention in police custody) at Sepang Magistrates Court. He was charged with two offenses of violating Section 228 of the Penal Code (one alleging that he intentionally insulted the magistrate and the alternative charge that he intentionally interrupted the magistrate). 
Section 228 of the Penal Code provides as follows:
“Whoever intentionally offers any insult or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to six months or with a fine which may extend to two thousand ringgit, or with both.”
Although Section 228 has been commonly referred to as an “offense of contempt” it should be distinguished from the contempt power applicable in Malaysia by virtue of Section 3 of the Civil Law Act 1956. In contrast to Section 228, the law of Contempt of Court in Malaysia is a law of strict liability. The test is whether the matter complained of had the tendency or was calculated to interfere with the due administration of justice or to scandalize the court, not whether the accused intended the result.
Mr. Uthayakumar was also charged with criminal intimidation contrary to Section 506 of the Penal Code which states as follows:
“Whoever commits the offense of criminal intimidation shall be punished with imprisonment for a term which may extend to two years, or a fine, or with both; and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offense punishable with death or imprisonment, or with imprisonment for a term which may extend to seven years, or impute unchastity to a woman, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both.”
The offense of criminal intimidation is defined under Section 503 as follows:
Whoever threatens another with any injury to his person, reputation or property of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
On 31 January 2003, M Manoharan & Co, lawyers on behalf of Mr. Uthayakumar filed an application to the High Court of Malaya at Shah Alam under Section 323 of the Criminal Procedure Code for “Revision”, to discharge the case on the basis that it was groundless, brought in bad faith, vexatious, and an abuse of process. According to the revisionary powers under Section 323, “the judge may call for and examine the record of any proceedings before any inferior criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, as to the regularity of any proceedings of such inferior court”.
It was also submitted on behalf of Mr. Uthayakumar that the charges were defective in that the charge of criminal intimidation failed to identify the “grievous harm” and that the particulars were incomplete (the charge was, rather, based on the complaint of P, the police witness accused by Mr. Uthayakumar of being responsible for the death of the youth Tharmarajen). It was submitted in the Section 323 application that the Sepang Magistrates Court should therefore have discharged the case against Mr. Uthayakumar pursuant to Section 173(g) of the Criminal Procedure Code.
E. Conduct of the Presiding Judge
The High Court application was presided over by Judge Datuk Haji Suriyadi Bin Halim Omar. In the meetings conducted by the Observer during his mission it was clear that this judge is held in very high esteem for his independence, integrity and ability. This view was shared by Mr. Uthayakumar and his lawyers. The Observer was satisfied with the Judge’s conduct during the hearing. It was clear that the Judge had a strong command of the issues and the legal complexities of the case. He presided over the hearing with a competent, fair, but firm, hand. He was critical of the handling of the case by both the police and the Office of the DPP. Mr. Uthayakumar’s counsel were provided with satisfactory opportunity to present their arguments (no witnesses were called). The Judge’s ruling delivered on 5 May 2003 (see below) was detailed, comprehensive and well reasoned. The ICJ welcomes the forthright comments contained in the ruling in support of the independence of lawyers.
The ruling of Judge Datuk Haji Suriyadi Bin Halim Omar was delivered on 5 May 2003.
The Judge reiterated the power of the High Court to, “examine records of proceedings in the subordinate court wherever it considers that in doing so the purpose of justice will be served, especially when the record discloses no offense or when the accused is subjected to a vexatious and groundless prosecution”. He stated that discharge may be warranted when the absence of grounds is clearly established by the evidence on record, making the attainment of a conviction impossible.
The Judge was highly critical of the fact that the preliminary hearing took place before the same magistrate that presided over the coroner’s inquest, describing it as 2an aberration in the administration of justice”. He also held that Mr. Uthayakumar had been prejudiced by the defective wording of the charge reiterating the principle that “it is fundamental in the system of justice as we know it that a person accused must be informed clearly of the charge against him and further it is a fundamental rule that an allegation must be stated with sufficient precision to enable the accused to meet the allegation and properly prepare his defense”. He concluded that apart from the charge being badly framed much to the prejudice of the applicant, it was rebutted at the outset of the case by the notes of proceedings prepared by the Court. Conviction was therefore impossible. The Judge held that the Section 506 charge was groundless and fell squarely within the ambit of Section 173(g) of the Criminal Procedure Code. Ordering that Mr Uthayakumar be discharged pursuant to the court’s revisionary powers under Section 323, the Judge then stated the following:
This discharge must not be construed as an indication of any desire to disallow this prosecution, whether as a matter of policy or otherwise, of which I have no power, but primarily a decision based on the available records. The court’s regrets are secondary to the awesome power of the Public Prosecutor, in relation to preferring a charge against the applicant, engaged at the very outset to perform his time-honored duty, but sidetracked perhaps by ineffectual and empty bravado. As an observation, if there was truth as per the allegation of the charge, here was a mere man, armed without any resources except enthusiasm, who had the temerity in an unguarded moment, having picked on no less than a personnel of another powerful State institution, backed by equally powerful resources. It is gratifying that the counsel has apologized to the learned magistrate, and the Right Honorable Attorney General, through his officer, has indicated that the contempt proceedings against the applicant would be withdrawn. Further, due to the chequered history of this case, and wide reporting of the matter, the police department, the legal fraternity and the court, are uncomfortably under intense scrutiny of the public. Perhaps this whole sad episode could be put to rest permanently, if all parties were to put their heads together, and goodwill prevailing.
III. Evaluation of the Fairness of the Proceedings
There are serious concerns about the original decision to proceed against Mr. Uthayakumar, the circumstances of his arrest as outlined above, his claim that he was not informed of the grounds of arrest, the decision to detain him, his treatment in custody and the lack of specificity of the charges. Mr. Uthayakumar’s complaint that the inquest hearing at Sepang Magistrates’ Court on 21 January 2003 was conducted by the same magistrate who presided over the inquest hearing on 3 September 2002 was reiterated by the High Court. The magistrate was a material witness in relation to the charges faced by Mr. Uthayakumar. It is very difficult to reconcile this situation with the guarantees of fairness and impartiality pursuant to the Universal Declaration of Human Rights,  although in Mr. Uthayakumar’s case this magistrate only presided over the preliminary hearing and not the trial itself.
As far as the Section 323 application for Revision at the High Court is concerned, Mr. Uthayakumar was ably represented by his lawyers M. Manoharan & Co (three advocates on a pro-bono basis). No restrictions were placed upon Mr. Uthayakumar’s ability to present his case. Defense counsel were able to put forward their case by way of oral and detailed written submissions. As stated above the Judge presided over the hearing with a competent, fair, but firm, hand. The Observer received no complaints from Mr. Uthayakumar or his lawyers about the Section 323 application process or any aspects of the hearing.  There is no suggestion that they were denied adequate preparation time.
IV. Other Applicable Law and Principles
The Legal Profession Act 1976 (LPA 1976) establishes the Bar, of which all advocates and solicitors of the High Court are members, and the Bar Council. The Malaysian Bar Council is an autonomous body created by statute, whose primary purpose under Section 42 (1)(a) is to “uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.” At all times members of the legal profession should act with due regard for the requirements of professional practice and conduct in court as set out in Part VI of the LPA 1976 and the relevant rules. West Malaysian lawyers are professionally organised by the LPA 1976. In addition, practice standards are governed by the Legal Profession (Practice and Etiquette) Rules 1978, the Bar Council Rulings 1997, and the Conveyancing Practice Rulings. Lawyers in Sabah and Sarawak are professionally organised by the Advocate Ordinance of Sabah and the Advocate Ordinance of Sarawak.
The prosecution of a lawyer in respect of statements made in court breaches Principle 20 of the United Nations 1990 Basic Principles on the Role of Lawyers. This principle guarantees lawyers civil and penal immunity for statements made in good faith in oral or written proceedings before a court. It is a basic duty of a lawyer to properly represent the interests of a client and provide a full and adequate defense. The charging of a lawyer for statements made in court improperly associates a lawyer with his client’s cause and represents an unjustified interference in the performance of a lawyer’s professional duties.
V. Background and Context
The prosecution of Mr. Uthayakumar should be considered in the context of previous prosecutions of lawyers.  Reports such as Justice in Jeopardy (co-authored by ICJ)  conclude that lawyers in Malaysia have been facing difficulties in carrying out their work freely and independently. The prosecution of lawyers has led to tension between the Government, Judiciary and the Bar Council and given rise for concern as to the ability of lawyers to render their services free from threats or harassment.
The above-mentioned Justice in Jeopardy report, recommended, inter alia, that:
The courts should act with great forbearance and restraint in the use and threatened use of the contempt power [for alleged professional misconduct] in respect of lawyers who are acting in their professional capacity. The power should only be used as a last resort when all other means of achieving the proper result have failed. When considering whether contempt proceedings against lawyers practising their profession are appropriate, due regard should be paid by the court to the sometimes delicate and difficult situations lawyers in practice, have to face. Unprofessional conduct by lawyers should be dealt with by the Disciplinary Board after the conclusion of the hearing, except in cases where the continuation of the process fairly is impossible.
The Malaysian Bar Council has also had occasion in the past to speak out when the police have exerted undue pressure on lawyers.  It noted that there has been a significant improvement in the relationship between the Bench and the Bar with the appointment of the new Chief Justice, Judge Tan Sri Mohamad Dzaiddin Abdullah, who was sworn into office in December 2000.  The Council stressed that he has taken positive steps to improve the administration of justice and to strengthen ties with the Malaysian Bar. Judge Tan Sri Mohamad Dzaiddin Abdullah stated that his first and main agenda would be to restore the public’s confidence in the judiciary by making changes in respect of “seeing justice done”, reducing the numerous citations for contempt and fostering a better relationship with the Bar. His appointment was welcomed inside and outside of Malaysia. The Malaysian Bar, in a press statement on 20 December 2000, called his appointment “most welcome” and found him “eminently suited to this task.” The UN Special Rapporteur on the independence of judges and lawyers, Dato Param Cumaraswamy, in his 2001 report to the 57th UN Commission on Human Rights, called the appointment of Judge Tan Sri Mohamad Dzaiddin Abdullah “a positive development, which was enthusiastically welcomed by all.” The arrest and prosecution of Mr. Uthayakumar therefore occurred at a time of a perceived improvement in the relationship between the Bar and the Judiciary in Malaysia. 
The Observer’s comments concerning theprosecutionofMr.Uthayakumarextend beyond the fairness of the hearing on the 8 April 2003 at the High Court to the overall context in which the criminal proceedings were initiated.
As indicated previously, the way this case has been handled gives serious rise for concern. The Malaysian legal system has been under international scrutiny for its prosecution of lawyers, particularly through the use of the contempt power. Against this background stands Mr. Uthayakumar, who over the last ten years has acted in a number of cases relating to abuse of police powers, deaths in police custody, police shootings, and police inaction, frequently appearing on a pro-bono basis in high profile cases alleging human rights abuses against the Royal Malaysian Police Force. It is therefore not without coincidence that this lawyer was arrested on the steps of a court where he was representing the family of a youth who died in police custody. This high profile arrest has attracted unfavorable attention onto the authorities as well as on the prosecution who sought to hinder, intimidate or harass Mr. Uthayakumar in his work as a human rights lawyer.
A judge or magistrate must be able to conduct the case before him/her in an orderly manner. This cannot be done if advocates do not observe the judge’s rulings. However, since, prosecution under Section 228 or the use of the contempt power has a direct impact on the ability of lawyers to provide effective representation – a guarantee of the right to a fair trial – considerable care must be taken before charging and arresting lawyers for this offense. As pointed out by Andrew Nichol QC in the Justice in Jeopardy Report, 
“Where professional lawyers are considered to have overstepped the mark, it will often be sufficient to allow the disciplinary body of the profession to investigate and, if necessary, to impose a penalty”.
Alternatively, where a lawyer in exercising his or her professional functions acts overzealously, a judicial caution can be invoked without resorting to the penal code. The real purpose of sanctions such as the law on insulting a public servant during judicial proceedings, or the contempt of court, is to prevent conduct which prejudices the right to a fair trial, and not actions which individual judges perceive offensive to their dignity.
In the circumstances of this case, any alleged unprofessional conduct could have been dealt with by the Disciplinary Board of the Bar Council after the conclusion of the inquest proceedings in which Mr. Uthayakumar was appearing without resorting to arrest, detention and criminal prosecution. Although the ICJ’s Centre for the Independence of Judges and Lawyers welcomes the decision of the Attorney General to withdraw the Section 228 charges, criminal proceedings for criminal intimidation were still pursued and Mr. Uthayakumar still faced a sentence of imprisonment of up to 7 years. It is unfortunate that the Attorney General has decided to appeal the decision of the High Court to order Mr Uthayakumar’s discharge.
The ICJ finds the circumstances and timing of Mr. Uthayakumar’s arrest and detention deeply disturbing.
The ICJ commends the decision of the High Court to order Mr. Uthayakumar’s discharge and welcomes the forthright comments of the Judge in support of the independence of lawyers. This is the first such intervention by the High Court in Malaysia in proceedings of this nature against a lawyer.
The ICJ reminds the authorities in Malaysia of their international obligations not to identify lawyers with their clients’ causes and allow lawyers to perform their professional functions without intimidation, hindrance, harassment or prosecution.
1. In exercising his or her discretion under Article 145(3) of the Federal Constitution to institute, conduct or discontinue any proceedings for an offense under Section 376 of the Criminal Procedure Code, to control and give direction over and in respect of all criminal prosecutions and proceedings, the Attorney-General should act with great forbearance and restraint in relation to lawyers practicing their profession.
2. The offense of Insulting or Interrupting a Public Servant during Judicial Proceeding under Section 228 of the Penal Code should not be invoked against lawyers.
3. Unprofessional conduct by lawyers should be dealt with by the Disciplinary Board of the Bar Council after the conclusion of the proceedings in which the lawyer is acting except in the most egregious cases and/or where the continuation of the process fairly is impossible. 
4. The police should be fully instructed and trained regarding the role of lawyers and must refrain from any interference with, or undue pressure on, lawyers when the latter are acting in their professional capacity. Guidelines should be established on police behavior in relation to lawyers and introduced as part of police training.
1. Appointment of the Observer: The Trial Observer, Charles Briefel is a Barrister, called to the Bar of England and Wales in 1984. He is currently working Bosnia and Herzegovina in the field of human rights, rule of law, legal and judicial reform in. He was appointed by the ICJ and was charged with reporting directly to the ICJ. Mr. Briefel observed the hearing on the 8th April 2003 at the High Court of Malaya at Shah Alam.
2. Methodology: During the mission he met with advocate and solicitor for Mr. Uthayakumar – M Manoharan; High Court Judge – Datuk Haji Suriyadi Bin Halim Omar; Deputy Public Prosecutor – Kamarul Hisham Kamaruddin; President of the National Human Rights Society Ramdas Tikamdas Hakam; Advocate for the Bar Council – Edmund Bon; Executive Director of the Bar Council Catherine Eu; Legal Advisor for the Bar Council- Lim Ka Ea; Member of the Human Rights Commission of Malaysia (ex Court of Appeal judge) – Dato Vohrah; advocate and solicitor – Vinod Sharma; the defendant – Mr. P Uthayakumar. The Observer sought to arrange a meeting with the Attorney-General but was unable to do so due to time constraints.
- Under Article 145(3) of the Federal Constitution the Attorney-General shall have power exercisable at his discretion to institute, conduct or discontinue any proceedings of an offense. Section 376 of the Criminal Procedure Code empowers the Attorney-General who is the Public Prosecutor to control and give direction over and in respect of all criminal prosecutions and proceedings.↵
- Memorandum prepared by Police Watch and Human Rights Committee and Parti Reformasi Insan Malaysia.↵
- Translation -“That you on September 3, 2002 in and about 4:15 p.m. at the Sepang Magistrate Court, in the district of Sepang, Selangor,Darul Ehsan, criminally intimidated P, by the threatening words “You watch out, I will fix you, we fix you”, and thus committed an offense punishable under Section 506 of the Penal Code.” “That you on September 3, 2002 in and about 4:15 p.m. at the Sepang Magistrate Court, in the district of Sepang, Selangor Darul Ehsan, had intentionally insulted the magistrate Norazmi bin Mohd Narawi during the inquest of Than-narajen A/L Subramaniam, when the said magistrate had ordered you to be quiet, in defiance of which you would be ordered to leave the court, had refused and informed the magistrate of your desire to carry on talking, and thus had committed an offense under Section 228 of the Penal Code.”↵
- Malaysia has not yet ratified the International Covenant on Civil and Political Rights.↵
- The Bar Council was represented by an advocate on a “watching brief” (this accords with the recommendation of the Justice in Jeopardy report). A separate advocate represented the Police Watch and Human Rights Committee also on a watching brief.↵
- Tommy Thomas (lawyer), Karpal Singh (lead defense counsel for Anwar Ibrahim charged with sedition), and Zainur Encik Zakaria (member of Anwar Ibrahim’s defense team and former President of the Bar Council of Malaysia). Mr Zakaria was sentenced to three months imprisonment for contempt on 30 November 1998. He had made an application for the exclusion of two prosecutors on the basis that they had attempted to fabricate evidence. The court ruled that this application was an abuse of process and interfered with the due administration of justice. (see, Attacks on Justice, 1998, ICJ). After the Court of Appeal dismissed Zainur Zakaria’s appeal on 5 September 2000, he appealed to the Federal Court. On 27 June 2001 the Federal Court ruled in favor of Mr. Zakaria and quashed the contempt of court conviction and the prison sentence.↵
- See, report Justice in Jeopardy, Malaysia, 2000, by the ICJ, the International Bar Association, the Commonwealth Lawyers Association and the Union Internationale des Advocats which conducted a joint mission to Malaysia from 17-27 April 1999. The report of this mission, entitled Justice in Jeopardy, was published in April 2000. It concluded that the powerful Executive in Malaysia had not acted with due regard for the essential elements of a free and democratic society based on the rule of law. The report examined the relationship between the Executive, the Bar Council and the Judiciary and found that in politically and economically sensitive cases the Judiciary was not independent. It found that the autonomy of the Bar had been threatened by the government and that the relationship between the Bar and Judiciary was strained. It noted that in politically sensitive defamation cases, awards of damages were so great that they stifled free speech and expression. It also noted that the use of contempt proceedings against practising lawyers constituted a serious threat to their ability to render services freely. The four organisations urged Malaysia, inter alia, to recognise the independence of the Judiciary, not to threaten or diminish the autonomy of the Bar Council, ensure that the choice of judges in sensitive cases would be carefully considered and establish a Judicial Services Commission that would recommend appointments to the Judiciary. See, also Justice on Trial, Lawyers Committee for Human Rights, April 1999 and Attacks on Justice, 2000, ICJ.↵
- Case of Irene Fernandez (Justice in Jeopardy, p. 21).↵
- Chief Justice Tan Sri Mohamad Dzaiddin Abdullah was the former Vice-President of the Malaysian Bar and judge of the Federal Court.↵
- A new Chief Justice Tan Sri Ahmad Fairuz was appointed on 15 March 2003.↵
- Appendix 6 of Justice in Jeopardy report.↵
- As recommended in Justice in Jeopardy, p. 86.↵