The present situation in Perak raises many legal and constitutional issues.
It is the view of some Constitutional lawyers that the prerogative of the Ruler is “non-justiciable” and cannot be reviewed by the Courts. Thus although we, and others, are of the view that dissolution of the Legislative Assembly would have been the best solution, it is difficult to challenge the prerogative of the Ruler, who exercised that prerogative by ascertaining the views of the majority of the members of the Assembly and then deciding who in the “Ruler's judgment” (under the Perak Constitution) commands their confidence. However, in the Datuk Joseph Pairin Kitingan case, such a discretion of the Governor (not a Ruler) was held to be justiciable.
We are certainly in unchartered territory. Different interpretations are always possible.
In that regard it is the fundamental right of any person to take any matter to the courts for determination and resolution.
We regret to note from reports in the NST today that there are certain groups who are challenging inter alia Karpal Singh's intention to file a suit in respect of this matter. In a modern democratic nation like ours, such a challenge is wholly untenable.
Litigants and their lawyers must be free from harassment and any form of intimidation in the exercise of the right to seek redress in a court of law. An advocate and solicitor must be allowed to advance his or her client's case without fear or favour. It is then up to the courts to resolve the various issues, which they must do independently and without regard to political exigencies. Decisions made with regard to political factors never stand the test of time.
Any intimidation of litigants and their lawyers in the exercise of their rights and duties respectively is an affront to the dignity of the courts and the administration of justice.
We strongly urge that all parties respect this fundamental right to seek redress in our courts. We must never regress to a position where we sacrifice this vital principle for political mileage or self-interest.
Dato’ Ambiga Sreenevasan
President
Malaysian Bar
8 February 2009
It is the view of some Constitutional lawyers that the prerogative of the Ruler is “non-justiciable” and cannot be reviewed by the Courts. Thus although we, and others, are of the view that dissolution of the Legislative Assembly would have been the best solution, it is difficult to challenge the prerogative of the Ruler, who exercised that prerogative by ascertaining the views of the majority of the members of the Assembly and then deciding who in the “Ruler's judgment” (under the Perak Constitution) commands their confidence. However, in the Datuk Joseph Pairin Kitingan case, such a discretion of the Governor (not a Ruler) was held to be justiciable.
We are certainly in unchartered territory. Different interpretations are always possible.
In that regard it is the fundamental right of any person to take any matter to the courts for determination and resolution.
We regret to note from reports in the NST today that there are certain groups who are challenging inter alia Karpal Singh's intention to file a suit in respect of this matter. In a modern democratic nation like ours, such a challenge is wholly untenable.
Litigants and their lawyers must be free from harassment and any form of intimidation in the exercise of the right to seek redress in a court of law. An advocate and solicitor must be allowed to advance his or her client's case without fear or favour. It is then up to the courts to resolve the various issues, which they must do independently and without regard to political exigencies. Decisions made with regard to political factors never stand the test of time.
Any intimidation of litigants and their lawyers in the exercise of their rights and duties respectively is an affront to the dignity of the courts and the administration of justice.
We strongly urge that all parties respect this fundamental right to seek redress in our courts. We must never regress to a position where we sacrifice this vital principle for political mileage or self-interest.
Dato’ Ambiga Sreenevasan
President
Malaysian Bar
8 February 2009
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