Raising several questions about the injunction obtained against Perak Assembly Speaker Sivakumar stopping him from convening “unlawful” meetings of the State Assembly. Does it apply to the “tree sitting”?
I shall call it the “Tree Injunction”. Not because it was granted under a tree. But it was obviously aimed to stop the sitting of the Perak Legislative Assembly under a tree and any other similar “unlawful” assembly.
Firstly, the question is whether Sivakumar should be represented by the State Legal Adviser. The Judicial Commissioner said he should be and therefore “private lawyers” were banned from the hearing. At the risk of being pedantic, I have to say, first of all, there is no such thing as private lawyers. There are Advocates and Solicitors. And on the side of the Government, there is the Federal Counsel or the State Legal Adviser who appears in civil cases, and the Deputy Public Prosecutor or the Attorney General himself who appears in criminal cases. On the issue whether Sivakumar must be represented by the State Legal Adviser, an opinion has been rendered at Loyar Burok. I find myself in complete agreement with that opinion and I will not add anything to it.
Secondly, I am just puzzled and bewildered at the stand taken by Zambry, the person who the BN is saying is the legitimate MB. Now, if he is the legitimate MB, shouldn’t he be represented also by the State Legal Adviser? If so, why is he represented by private lawyers? I don’t understand this part.
Thirdly, I am even more puzzled and bewildered at the end result of the argument by Mohd Hafarizam on the first issue above. If what he said is correct, namely, that Sivakumar should be represented by the State Legal Adviser, and consequently Zambry also has to be so represented, wouldn’t there be a clear and obvious conflict of interest on the part of the State Legal Adviser in this matter? How can he act for both parties, who are advancing, quite clearly, directly opposing arguments in the matter?
Fourthly, when asked whether the Tree Injunction which he obtained would cover the tree assembly which went on the morning before the Tree Injunction was granted, Hafarizam was quoted by Malaysiakini reports as follows:
For Barisan Nasional’s lawyers, the order which bars the speaker from convening “any unlawful meeting” covers the emergency assembly sitting held under a tree yesterday.
“Frankly, there is no time frame. So it should include the assembly held yesterday,” said Mohd Hafarizam Harun, in a text message reply today.
Mohd Hafarizam is one of the lawyers acting on behalf of Perak Menteri Besar Zambry Abd Kadir and his six cabinet members, who obtained the court order against Sivakumar yesterday.
Mohd Hafarizam argued that the speaker was served a notice of the court action on Monday while the sitting was held on Tuesday.
“So it would appear that it covers the (Tuesday) morning (sitting),” he told Malaysiakini.
If indeed Hafarizam said what he was reported to have said above, with all due respect to him as a fellow practising Advocate and Solicitor, I wish to say that that statement is to be laughed at as it is absurd! I don’t know which book on injunctions Hafarizam reads and what obscure 16th century case law on injunctions he adopts – or case law of which country for that matter – but my 22 years of legal practice does not support what he says.
Let me explain why. An injunction, the type of which was obtained by Hafarizam, is an order to restrain a person from doing an act. Now, if the purpose is to restrain, it goes without saying that the act which is sought to be restrained has not been committed yet. How does one restrain an act which has been committed? If Hafarizam wants to deal with an act which has been done, he should obtain a declaration that such act is illegal or unlawful or both. He could also obtain a further declaration that all resolutions passed at that assembly are void and of no effect. The Tree Injunction does not operate to make illegal or unlawful the assembly which took place before the Tree Injunction was granted. I would have thought that that position would be elementary.
Fitfhly, Chan Kok Keong, the private lawyer (excuse me, I need to laugh…hahahaha) who acts for Sivakumar was quoted by Malaysia Today in its report as saying that the Tree Injunction states:
It is hereby ordered that the 1st defendant, YB Encik V Sivakumar is restraint from convening any unlawful meetings purporting it to be a meeting of the Perak state legislative assembly.
Which begs the question, what are “unlawful meetings”? What if Sivakumar convenes an assembly thinking, honestly and sincerely, and after legal advice, that the assembly is not unlawful? Can he be committed for contempt for having breached the Tree Injunction? I don’t think so. Because for him to be committed for contempt, he must be shown to have intended to breach the Tree Injunction.
Now, if he was under the impression, after considering legal advice that the assembly he was convening was not unlawful, where is the intention to breach the injunction? And if any meeting convened by Sivakumar is unlawful on the face of it, why must he be restrained from convening such meeting in the first place? After all, that meeting is already unlawful and is of no effect whatsoever. Why bother?
I think the Tree Injunction is not valid and is liable to be set aside on appeal because it is vague. In legal jargon, that Tree Injunction lacks precision. In a case called Lawrence David Ltd v Ashton [1991] 1 All ER 385, the Court of Appeal in the UK was considering an injunction which sought to restrain a person from “disclosing to any person or making use of any confidential information or trade secret belonging to the Plaintiff”.
The words in italics and in bold above were however not defined in any way in the injunction. One of the appeal Judges said:
I have always understood it to be a cardinal rule that any injunction must be capable of being framed with sufficient precision so as to enable a person injuncted to know what it is he is to be prevented from doing. After all he is at risk of being committed for contempt if he breaks an order of the court. The inability of the Plaintiff to define, with any degree of precision, what they sought to call confidential information or trade secrets militates against an injunction of this nature. This is indeed a long recognised practice.
(emphasis mine)
Similarly, in the Tree Injunction, what constitutes “unlawful meetings” is not defined at all, let alone with precision. And so I think the Tree Injunction is as dead as a tree in a desert!
Lastly, can a Speaker or his actions in the Legislative Assembly be questioned in court? In legal jargon, are his acts justiciable? The Bar Council says they are not. I agree. Otherwise, a Legislative Assembly would not be able to function as every decision of the Speaker would be brought to the Court and opened to questioning.
Can you imagine Pandikar Ali being sued each time he makes a ruling in Parliament? The courts might have to convene under a tree in such circumstances as there might not be enough courtrooms to hear the matters.
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Posted on 6 March 2009. You can follow any responses to this entry through the RSS 2.0.
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