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Wednesday, March 4, 2009

> The Bar Council's position

It must be appreciated that the events unfolding in Perak are unprecedented and involve complex legal issues.  It is impossible to provide a conclusive opinion on them.  Some matters may, however, be addressed generally as a matter of principle. 

Today 27 Assemblymen in Perak were prevented by the OCPD from entering the State Secretariat building, apparently upon “instructions” from the State Assembly Secretary. 

The role of the State Assembly Secretary now comes under scrutiny.  He is an official appointed from the public services and is only responsible for the administrative management of the State.  He therefore has no authority to decide or pronounce whether a legislative assembly sitting is valid or not.  The police have therefore acted improperly on his advice in defiance of the Speaker of the Legislative Assembly.  These errors are further compounded by events that transpired in the High Court.

It was asserted before the Court by the plaintiff’s lawyers that the Speaker ought to be represented by the State Legal Advisor rather than private lawyers.  There is certainly legal basis to disagree with that view but a more substantive matter of general principle must be addressed as to the position of the State Legal Advisor 

Firstly, every lawyer must act on the instructions of his client and not otherwise. The Speaker has stated that he never gave instructions to the State Legal Advisor to either appear for him or to argue the case on his behalf.  This is a matter that the Court must satisfy itself of before proceeding. 

Secondly, the State Legal Advisor is clearly in a position of conflict.  He and his department are presently acting for Dato’ Zambry in the Kuala Lumpur High Court suit where Dato’ Zambry’s appointment is being challenged.  How can he or his department now act for the Speaker against Dato’ Zambry? 

If the parties who file and defend proceedings in Court are confident of the strength of their case, there is little reason to taint or mar the proceedings with acts that militate against natural justice and fair play.  It bears repeating that justice must not only be done but must be seen to be done.  The Courts have a duty to uphold the highest principles of justice, fairness and their own independence.  We must respect the doctrine of separation of powers and uphold the Federal Constitution. 

The Legislative Assembly was convened by the Speaker a short distance from the State Secretariat building.  There are questions as to whether it was permissible to hold the Legislative Assembly outside the State Secretariat building.  Of course, the State Secretariat building is where the Legislative Assembly ought to have been held.  However, the Speaker and Assemblymen were prevented from holding it in the proper place by the police (and this raises serious issues as to the legality of the police action).  Thus the Speaker had no choice but to act within what may be seen as wide powers to convene the meeting elsewhere.  No doubt there will be contrary views but it must be understood that this situation is unprecedented and the Standing Orders may not adequately cover these eventualities, thus leaving the Speaker with the powers to act according to the circumstances of the case. 

We will no doubt see another case filed in Court.  And the public has to further suffer the consequences of uncertainty. 

The situation is untenable and cries out for the one thing that will resolve it conclusively – fresh elections.  There is now a window of opportunity for this to happen.  Let the people decide. 
Dato’ Ambiga Sreenevasan
Malaysian Bar