Concern over Zainur case, but no EGM

December 8, 1998

The Bar Council at a special meeting on Monday 7 December 1998 has decided not to convene an EGM to discuss the contempt cases of Encik Zainur Zakaria and Mr. Tommy Thomas as both their cases are pending appeal in the Court of Appeal and orders for stay of execution has appropriately been granted in both cases.

The Bar Council confirms that it had received a petition signed by 162 concerned lawyers calling for an EGM to discuss the contempt case of Encik Zainur Zakaria and the Important issues relating to legal practice raised by the case.

The Bar Council fully empathises with the petitioners and shares the sentiments of concern expressed by them regarding the issues raised by the case. The Bar Council agrees that the case raises fundamental questions of the right of a lawyer to act fearlessly on behalf of his client and the right to raise every issue and every argument in his clientís favour. The case also concerns the protection from liability in contempt of a solicitor for pleadings filed in court and the solicitorís liability for an affidavit deposed by the client. Apart from these issues the case of both Encik Zainur Zakaria and Mr. Tommy Thomas also raises the question of the imposition of custodial sentences on lawyers for contempt of court.

However, the Bar Council is of the opinion that these are the very issues that would inter alia be raised be held without discussing these issues and other related issues like the conduct of parties.

The Bar Council notes that any discussion and conclusion formed on the issues aforestated could run foul of the sub-judice contempt rule which prohibits against pre-judgment of a pending cause or critical comment of persons concerned in litigation.

The Bar Council is mindful that there is always scope for public discussion and comment on matters of public importance notwithstanding a pending cause, but the line between bona fide public comment and criticism tending to cause prejudice to a pending matter is dependant upon the facts and circumstances of every case. These rules ensure that there is no trial by media of any cause or litigant before its determination by a court of law.

In all the above circumstances, the Bar Council has resolved that it would be in the best interests of all if the important issues raised above are fully ventillated in the appropriate forum of the Court of Appeal.

The Bar Council will accordingly continue to monitor the said contempt cases and seek to represent the Bar on a watching brief on the appeals.

Dated : 8 December 1998

Dato' Dr. Cyrus Das, President, Malaysian Bar

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