UNILATERAL INJUNCTION AND PRESERVING THE STATUS QUO


 

In order to make this issue of the granting of the preventive injunctive relief to the police understandable let us first refer to its meaning as provided for in the Little Oxford Dictionary. Injunction means: “ Authoritative order; judicial process restraining from specified act or compelling restitution.”

 

The Specific Relief Act does provide for the issuance of a “negative injunctive.”

 

What is not clear is whether the police applied for a “prohibitory order or an injunction.”

 

The simple reason for which this article is been written is owing to the fact that the police authorities are now going to the courts to unashamedly use the courts to exercise their inherent powers under the law as a tool to blatantly deprive the people from exercising their rights under the Federal Constitution, resulting in the peoples liberty being consigned to the limbo of undefined premises and uncertain applications.

 

If that is the case, based on the established procedure in law a party who has a cause of action can make an application to the court to obtain this equitable remedy with the caveat that the party making the application must conform to the well established maxim of the law of Equity, that “he who seeks equity  must do equity.” which is to command the public to cease to exercise their liberty and freedom of movement or assembly within a certain specified time and a certain radius of the area where the Perak State Assembly is located or was it an injunction to restrain the public from maintaining status quo. But status quo cannot arise for the issuance of an injunction.

 

From what is reported on the alternate media it appears that the High Court granted the police before October 28 a “Blanket Injunction” to restrain the public for a specified period of time from assembling within a certain specified area where the Perak State Assembly is located so that the assemblymen could attend the said assembly and carry out their duties.

 

Assuming that the Perak police applied for an “Injunction” then the said application would have been made ex-parte and we wonder against whom was the application made. Further was it an ad interim injunction as it is generally called as a temporary injunction. Whatever was the colour of the application is not important. What is important is the fact, that it was made bona fides or in good faith.

 

As such the police should have made a full and frank disclosure of all the facts that were material for the Judge to without bias to evaluate the matter before him. Which means that the police should have affirmed an affidavit under oath, that all their acts (or purported future acts ) have been fair, and in their honest belief are free from any taint or of fraud or illegality,  and are true.

 

In evaluating the matter which was in respect of restraining the liberty and the freedom of the people of Perak, the judge should have asked an all important question, that should he grant or not grant the “temporary” injunction and if he grants the injunction, “who will guard the guards themselves.” This is owing to the fact that the role and the responsibilities of the police is to ensure the safety of the people. They with all the fire power are above the reach of the ordinary people. So who was going to guard the police. May be the judge did not think about this matter.

 

We may presumptuously conclude that the judge may not have asked any of the above questions. It is clear that the judge has wrongly exercised his powers and has made common nonsense of the established principles of the doctrine of the law of injunction. Would it be wrong to conclude that the judge has been emotionally and intellectually dishonest and could this be a judicial misconduct?

 

Having had dealt with the issue of the temporary injunction let us now take a peep into the issue of a prohibitory order. What does prohibition mean. Under the Little Oxford Dictionary it gives the meaning as: “forbidding or being forbidden; edict or order that forbids; forbidding by law…..” As such it is well established in law that “prohibition” is an extraordinary specific remedy which is used for a distinct species of wrongs.

 

We must note that whilst an injunction never questions the jurisdiction as it only lies against the parties before the court, but a prohibition on the contrary takes no notice of the parties. A prohibition order does not take any interest a party may have which is the subject matter of a complaint or grievance. Once the order is issued it will command the person or persons to whom it is directed not to do something which by the suggestion of the police was in their affirmed affidavit informed the court about what the people are about to do. In this case it was the October 28 Perak State Assembly.

 

The question is, can the court regardless of who made the application, for an interim injunction or a prohibition order issue such an order against the general public? The answer should be in the negative. Even a person with an unschooled intelligence would be able to give an appropriate answer.

 

Why would this be so?

 

To put it simply, an injunction has to be addressed to a party and not against an entire community of people. It would be to preserve the status quo. And a prohibition order has to be directed against a specific act which has been perpetrated and the order commands that the party is to be restrained from continuing the act. But a court cannot act on a presumed grievance that the police have had a nightmare on, which would tantamount to acting on a common nonsense or a logical fiction.

 

As we all know that we are no longer living in caves. We live in modern times. Periodically we cast our votes at the ballot box to elect our leaders, who formulate reasonable policies that are acceptable to the majority of the populace. The judges of the courts are independent of the Government of the day. The judges are the guardians of our rights as enshrined in the Federal Constitution.

 

The judges are to dispense with justice as justice is blind. But the public sentiment is that some of the judges are dispensing justice that is not blind. The judges must refrain from regarding political consequences with a subjective mind no matter how formidable the matter may be. The judges must be true to their oath of office and look at all matters objectively. If any of the judges for some reason are unable to decide matters objectively they should cease to be judges and should resign.

 

We the voting populace want to bring about a change in our system of government by evolution and not by a revolution. The judges should not be the last straw that broke the Camel’s back. If that happens a rebellion may be the final consequence. And at that point of time it may be too late for any of the judges to cry out “fiat justitia, ruat caelum” which means “Let justice be done though the heavens should fall.”

 

We as the masters of all politicians have had enough of the common nonsense demonstrated by all the established institutions of the government. It is about time that every one gets up from their slumber and pay attention to the peoples voices that are crying out from the wilderness, before it is to late.

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One Response to “UNILATERAL INJUNCTION AND PRESERVING THE STATUS QUO”

  1. boscopa Says:

    Yes. I am the author of this post.

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