QUESTIONS POSED

I was asked by the Perak Bar Blogmaster to write a piece for the Perak Bar Blog on the current happenings in Perak and the brewing constitutional crisis which is reminiscent of a Hollywood script complete with the intrigue, drama and espionage.

My brief was to write a piece on the crisis to stimulate and encourage discussion. My initial reaction was one of dismay given the fact that most members of the Perak Bar are a pretty laid back lot. So call me a fool or an optimist, I am hoping that this piece will trigger some discussion. Why should lawyers from outstation or overseas have all the fun interpreting our laws when it directly affects us Perakians? So come on you legal Perakian eagles, lets hear from you.

Abraham Lincoln once famously said in his Gettysburg address

“………….and that government of the people, by the people, for the people, shall not perish from the earth”.

Having said that, I am also not going to assign the word government or opposition to any party as there is already so much confusion over who is our legitimate government as this is something that is yet to be decided.

Early last month, I attended a mediation course where it was drummed into the participants that the focus is on the interests and not positions.

So it is appropriate to start with this. What is the paramount interest that has to be protected and preserved in this ordeal? Some might say that it is the interest of the government –v- the interest of the opposition (or vice versa). Others might say the sanctity of the rule of law and democratic process. I say it is the sanctity of the rule of law and the democratic process.

Perakians who thought that the issues of the legitimacy of the newly formed administration is now in the hands of the Court to decide on the case of the 2 Chief Ministers and interpret article 16(6) of the Perak State Constitution, were taken by surprise when the State Assembly speaker flexed his muscle under the powers of the Constitution. Now there rose another plethora of questions by both sides on the validity of his decisions and the scope of his authority to convene a State Assembly that had according to him been adjourned sine die.

I was in Court last Monday 2.3.2009, at the hearing of the injunction sought by the new administration seeking to injunct the Speaker from carrying out any of his official duties. I had expected to hear ground breaking arguments on the constitutional law of Perak and hopefully see some marvelous advocacy and emphatic arguments. So as we sat in a packed court room jostling for room with the squadron of reporters from all the news networks, the door to the learned Judicial Commissioner’s chambers opened and out came Tommy Thomas and he was engulfed by a swarm of people who were appraised that the “private lawyers” appointed by the speaker were disqualified from acting for him as he is a government employee and can only be represented by the State Legal Adviser. In the interim, the State Assembly was being convened under a tree. Hmmm! The plot thickened my fellow members. The tension, worry and excitement in the Courtroom was palpable.

Given the severity of the matter and the legal implications, the following questions arose:-

• Can a Speaker be injuncted by a Court Order i.e. is the Court clothed with the power to grant such an Order?
  

• Was it proper for the State Legal Adviser to step into the shoes of the disqualified lawyers given the fact that he had not sought instructions from his client, the speaker as to his defence on the matter?
  

• Is the Speaker entitled to appoint lawyers of his choice?
  

• Is there a conflict of interest here given the fact that the State Legal Adviser’s office is representing the new administration in the case of the 2 Chief Ministers filed in Kuala Lumpur?

• Is the Assembly held under a tree valid?
  

Finally, if it was necessary to injunct the speaker from carrying out any duties or functions and assuming that the Court (under q1 above)can make such an Order, is that a concession that until an injunction is made to that effect the speakers actions are valid?

Opposing ideas and views are welcome. We are one Bar and we have to be proactive in educating the public and each other about the situation that is unprecedented and one for the history and law books. But in the spirit of good argument as in any Court battle, we must agree to disagree on the legal points and interpretations of the laws.

Written by Navit Kaur