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Thursday, March 05, 2009

The "Tree Injunction" - my thoughts

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 advocate and solicitors. And on the side of the Government, there are Federal Counsel, or State Legal Adviser who appear in civil cases and Deputy Public Prosecutor or the Attorney General himself who appear 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.

Secondly, I am just puzzled and bewildered at the stand taken by Zambry, the person whom 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, how come he was 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 Advisor, 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 could 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 laughable in its absurdity! I don't know what book on injunction which Hafarizam reads and what obscure 16th century case law on injunction which he reads - or case law of which country for that matter - but my 22 years of legal practice don't support what he said.

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 to 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 says as follows:

"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 is "unlawful meetings"? What if Sivakumar convene 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 reported at page 385 of the All England Law Report, 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 italic and bold letters 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." (all emphasis are mine).

Similarly, in the tree injunction, what constitute "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 dessert!

Lastly, can a Speaker or his acts in a the Legislative Assembly be questioned in court? In legal jargon, are his acts jucticiable? 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 could be brought to the Court and open up for questioning.

Could you imagine Pandikar Ali be sued each time he makes a ruling in the Parliament? The Courts might have to convene under a tree in such circumstances as there might not be enough Court room to hear the matters.

32 comments:

Anonymous said...

Ha ha ha... Yours is the most refreshing piece I've read on the historic event.

The learned Tommy Thomas was right in asking to be excused from the jokers chambers

SV said...

Is it significant that the contract of service of said Judicial Commissioner had already expired at the time when he heard the application for the Tree Injunction? Or can that defect be easily swept aside by a retroactive extension of the old contract of service?

LAT said...

Art,

Early this morning, when i read this "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." Wow Wow ! I was having a very good laugh & awaken by his astounding "SUPER-Retrospective Effect" of a different set of High Court Rules 2009 apply to these BN-UMNO's application of Injunction Order.
My goodness ! Notice of application for Injunction APPLY ON MONDAY(2/3/09)and EFFECTIVE FROM MONDAY even though the court hear??? and granted !!! the Tree Injunction Order on Tuesday(3/3/09)at 4.45pm AFTER the "TREE Motions" have been passed earlier on 11am on the same day.
Looks like my Chambering Student can do a better job than him. What Rules of Jungle is this ? who is the Chamber Master ?

Blind(JC & UMNO) guided by Blind ( Private Lawyers) and thus ALL fall into the ditch !

aiyo said...

That's a good one. Up close and personal.

Anonymous said...

what BN has is a bunch of half-past-6 lawyers. this is how BN get their system to work for them. half-past-6 lawyers can work very well with half-past-6 JC. bcos if all these so call legal professionals truly know the law they would hv advised their clients not to waste time and money. something so fundamental that a layman like me can grasp and these lawyers can't figure out?

asiseesit said...

very well put. as clear as day. even i as a layman considered the actions by zambry and BN to be lacking in reasoning and legality.

but there's one statement that mr chan made, for him to refer to the CPO press statement instead of officially clarifying with him the police order on the tree assembly for their smooth passage, does a press statement deemed to be binding even though no official instruction in letter is serve?

many times we hear our politicians making press announcement about certain civil services complaints but the relevant department simply brush it off as not having receive any official instruction to that effect.

Anonymous said...

art,

as clear as daylight and I like the simplicity of language used.

just wondering whats next from BN? its deplorable that they even went to the extent to find a JC whose tenure has technically expired to assist them holding to the power.

gosh, they really made a hash out of it.

since this genuis Ridwan open the pandora box, Karpal pls get ready to file suit against Pandikar for all the lop-sided decisions. Get ready, PR.

By the way, Art hope to get your consent to mail this great article tomy friends. Is that ok with you?

ricky said...

I must also leave a comment - thoroughly enjoying reading this.

By the way, a slight typo on "jucticiable" :)

art harun said...

Thanks guys for reading.

Asiseesit, under the law, the police is not seized of the power to investigate until and unless there is a police report. If they read something and they want to act, they would have to lodge a report by themselves. But of course, there are things which they investigate and things which they don't.

Ricky, LOL! It is not a typo. Frankly, I don't know how to spell that word and "justiciable" was the closest to the real thing that I could think of. Hahah...I checked this morning. It should be "justiceable", no?

Anon, on the JC's tenure. We all do not know how long his tenure is. Or whether his tenure has ended and if so, whether it has been extended. So, I would exercise some restrain in making statement or drawing conclusion. But in the ordinary course of things, when a matter is filed in Court, the practice is for the most senior Judge to allocate the matter to any of the Judges in that particular Court. So I would presume in this case the Senior Judge must have allocated the matter to the JC.

art harun said...

Oh sorry, btw Anon, please feel free to e mail it to anybody. But I wish you would e mail the url only so that your friend could visit this blog.
If you earn some money from forwarding this blog, I would of course expect you to transmit to me my obligatory 30% Bumiputra cut.

Thanking you in advance. Huahahah...

lil ms d said...

hello boss this is your lunch pa. can you change the background ka? rabun la saya! when you write in blue i can't make the words out! but other than that i will print this out for my daddy :D

Anonymous said...

Your arguments/reasonings are simple and easy to comprehend.

Thanks, ArtHarun!

What do you expect from those young lawyers that lack experience represented Zambry but wishing glamour, only add confusion to the existing going-ons.

But the judge? Lets figure out! hehehe

CK Peng said...

Dear ArtHarun,

Thanks a lot for such crips and clear piece of analysis for the lay man like me. JC Ridwan Order look most radiculous and the manner he conduct in in chamber and kick away the "Private Lawyer" is really and act so low that I think Augustine Paul is slightly better than him. At least he did it in Open Court for us to remember him!

In Malaysia, all good lawyer stay in Private practise. Lousy lawyer become Judge! Oh Maybe some Judge are Good but they will have no chance to hear the case!

I agree with your friend. Change the backgroud, everytime after reading your blog I see double image!

Anonymous said...

i felt ashamed to admit that i myself is a lawyer when we have fellow lawyers like hafarizam... sigh.... i guess he must be reading his law in the jungle...

LAT said...

Ck Peng,
"In Malaysia, all good lawyers stay in Private practise.
(haha,like our Professor Art Harun).

Oh Maybe some Judges are Good but they will have no chance to hear the "jungle" case!
(yes, because these good judges will be transferred out from the "BN-UMNO Jungle Court" into an "Isolated Island" to preserve their legal wisdom & jurisprudential knowledge for lay human beings like us.)

Among the four(4)judges preside in Ipoh High Court, Dato' Wan Afrah Bt. Dato' Paduka Wan Ibrahim sitting in HC No.1; Dato' Zainal Adzam bin Abd Ghani in HC No.2( who attend the ceremony when the new MB Zambry was appointed ); Tuan Tarmizi Bin Abdul Rahman (Judicial Commisioner(JC) just transferred to Ipoh HC 3 months ago); and Tuan Ridzuan Ibrahim(JC) in HC No.4 since Feb/2007).so, who is the most senior Judge who allocate the case to JC Ridwan ?

Brief Watcher said...

Hi Art,

I too was wandering how Zambry can be represented by "private lawyers" and one of them even tells the press that he is UMNO Legal Advisor - this Mohd Hafarizam. If the State Legal Advisor had granted consent to Zambry, likewise, he should do the same for Sivakumar and not act in concert with Zambry's "private lawyers" more so because he is also acting for Zambry in the Nizar's suit.

You missed out on another point in the injuction order as was reported by the press, it is supposed to be valid "indefinitely"! WoW! Why bother with the main suit anymore if an injuction had decided the matter indefinitely?

Anyway, laugh all you want but the joke will be on all Malaysians when all these jokers become the next CJ ,PCA, CJM, HJ etc.

Anonymous said...

The arrogance and the stupidity know no bound for these goons. What a sad situation (an understatement)

Old Fart said...

Art need your advise on this:

Everytime I sign a contract and that part of it that puts any restrain or order on me, I am only quite happy to agree to the restraint or order that might in itself be void. The other party finds comfort in thinking he has got me and I am comforted in knowing that its void and not applicable on me in any case. Of course I know about if the restraint or order in itself is not illegal then I could be made subject to it. But as I said, it is void to begin with, so how could I agree to something that is void?

By the same token, since this "tree injunction" is laughable to say the least, why not just leave it alone and not bother to appeal for its removal? UMNO should be comforted thinking they got this injunction. And Sivakumar can go on with his business as a speaker knowing his powers are still very much intact.

By asking for the injunction to be lifted, won't the other side just not become a little more smarter the next time and get a more rounded injunction? Or better still claim Sivakumar as a threat to national security and have him incarcerated in Kamunting maybe!! Then there would be no speaker with such authority!!

donplaypuks® said...

Not only are our raintree forests in danger of oblivion, but our legal system too, it seems!! And we had so much hope after the RC on Judiciary.

Could anyone give some background info on the qualifications (UM/MARA) and legal experience/career details of JC Ridzwan so we cam assess whether he is congenitally handicapped or just plain biased in favour of UMNO/BN?

And does the FT Chief Sec have the authority to lock up Parliament with support from Police/FRU in defiance of Speaker Pandikar Amin should a similar situation to that in Perak arise.

And was the JC's extension of tenure back-dated to 1st March 2009?
http://donplaypuks.blogspot.com

Anonymous said...

the ignorant and arrogant probationary judge was truly given a hiding by venerable and learned NH Chan.

Well, at least his probation was extended though restrospectively. I for one wouldnt even want to stand before such an ignorant judge. In the first place, how did he get appointed as a JC?

Anonymous said...

art

no more ali baba, ok. lets do it baba ali style:70% yours and 30% mine. thats Bolehland commission sharing structure now.

no worries, my friends know the real source and so far feedback on your blog has been thumbs up. One promise, dont cut my 30% off now that my friends can go direct to your blog.

Ha2, have a great holiday.

LAT, Ipoh. said...

"In the first place, how did he get appointed as a JC?"

Answer : the Introducer is Najib-PM is waiting !

Antares said...

Folks, this is the legal team BN engaged to order an injunction against Sivakumar: Firoz Hussein, Ahmad Jamaluddin, Mohd Hafarizam Harun, Abu Bakar As Sidek, Cheng Mai, Badrulhishah Abdul Wahab, Faizul Hilmy Ahmad Zamri and Zaireen Zaina. Jot down their names and make sure you NEVER hire these disreputable quacks.

joolee said...

Art,

reading your blog is both informative and enjoyable. kudos. i posted the link to this post on my facebook and good some good feedback.

Antares,

maybe we should expand coverage to include the legal firms these lawyers represent.

anyway, if i needed good legal advice, i know the top 5 people i would seek out.

joolee said...

Art,

reading your blog is both informative and enjoyable. kudos. i posted the link to this post on my facebook and good some good feedback.

Antares,

maybe we should expand coverage to include the legal firms these lawyers represent.

anyway, if i needed good legal advice, i know the top 5 people i would seek out.

art harun said...

Dear OF,

It's a conundrum in'it? The thing about Court Orders is the Orders, no matter how invalid and downright stupid they may appear, are valid until and unless they are set aside. Now, that is a bit unfair. Because if a stupid order is served on me, I would have to spend money to set aside that order! Otherwise, I would have an order hanging over my head and the possibility of contempt proceedings being brought against me in case I breach that order.

In this case, Sivakumar may elect to just ignore it as it (the order) is quite obviously meaningless. But he does so at his peril. I think it would be better to err on the safer side and apply to set aside or appeal against it. If he does so, IMHO, he has some advantages:

i) he would be able to show to the Court how unfair the order is.

ii) he would be able to also argue how unfair and possible wrong the Court was in disallowing Tommy Thomas to argue the cae even as amicus curae (as "the Court's friend").

iii) PKR/PAS/DAP can go to town with all the publicity especially in view of the 2 bukits by-elections.

PS now we have the tree assembly, the tree injunction, the bukit and batang by-elections...hmmm...I wonder what the stimulus is to be called. LOL!!

CK Peng said...

Thanks LAT for enlighten me on the puzzle I have on the Good Lawyer and Bad Judge.

To ART, you reply on the Tree Injuction make us understand the situation more. Can you also comment on PR suing the Perak Legal Adviser?

LAT said...

Question : Who is the most senior Judge who allocate the case to JC Ridwan ?

Answer : Unofficial Survey revealed that the most senior Judge between the 2 Ipoh High Court Judges is Dato' Zainal Adzam bin Abd Ghani sitting in HC No.2(who was attending at the Kuala Kangsar Palace for the ceremony when the new MB Zambry was appointed).

art harun said...

Just for the sake of completion, the Court of Appeal has held yesterday (13.3.09) that Sivakumar may engage any lawyer(s) he wishes. The JC has been proven wrong!


http://mt.m2day.org/2008/content/view/19179/84/

Anonymous said...

until yesterday, zambry's lawyers were smiling and boastfully tells the whle world that they manage to convince the judge that he can throw out the constituion.

they didnt realise it aint the fact they were smart. its just that the judge was so stupid that he assumes all the judges would want to be viewed as stupid as him by the legal fratenity.

LAT said...

The Court of Appeal had unanimously proven that both the Judicial Commissioner-Tuan Ridzuan and the Umno legal adviser- Mr.Mohd Hafarizam, utterly wrong and absurd in their ruling and submission ! The JC has humbly recused himself from continue hearing the case-BIG thanks to Mr.Hafarizam for his "jungle" law & advise to the "jungle" court.

Now the High Court No.1 presiding female Judge Dato' Wan Afrah Bt. Dato' Paduka Wan Ibrahim will be handing her judgement under the watchful eyes of the Rakyats, foreign media, her superiors from the Court of Appeal & Federal Court-Zaki ? or the Executive-PM ?

God Bless Yang Arif Dato Wan Afrar.

Anonymous said...

"Malaysia Insider:
IPOH, April 1 - Ipoh High Court Judge Datuk Balia Yusof Wahi today ruled today that the three independent lawmakers - Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) - are the respective legitimate elected representatives. - Bernama"

Looks like nowaday it will be the "trend" for "importing" High Court judge from KL to Ipoh to hear all BN-umno-cases on ad-hoc basis ? Can someone enlighten me ? Judges from KL are more "exclusive ?