For the second time this week, the High Court today ruled that Perak State Assembly Speaker V. Sivakumar should be represented by the state legal adviser in the suit brought against him by three independent state assemblymen.
Ipoh High Court Judicial Commissioner Ridwan Ibrahim denied Sivakumar the use of lawyers of his choice after hearing submissions from both sides for almost two hours.
"Sivakumar has suffered an injustice by not being able to engage a lawyer of his choice and being forced to have a lawyer that is obviously in a position of conflict," Bar Council secretary Lim Chee Wee told The Malaysian Insider.
State legal adviser (SLA) Datuk Ahmad Kamal Shahid is also representing Barisan Nasional Perak Menteri Besar Datuk Zambry Abdul Kadir in a lawsuit brought against him in Kuala Lumpur by ousted MB Datuk Seri Nizar Jamaluddin.
Datuk Hafarizam Harun, who is leading the lawyers representing the three independent state representatives who switched to support Barisan Nasional, said Sivakumar could use private lawyers only if he resigns.
"Then we can elect a new speaker from the Barisan Nasional," Hafarizam said, reflecting Barisan Nasional's strategy to oust the speaker.
He added that Sivakumar had no choice but to use the SLA even if he had no faith in that person. "The prime minister also has to use the Attorney-General. It is not a matter of choice."
Hafarizam denied any conflict of interest in the current situation where the SLA is also representing Zambry, saying that both Zambry and Sivakumar are part of the state government while Nizar is not.
When asked whether justice is being seen to be done by having the SLA represent both Zambry and Sivakumar, Hafarizam said that justice is seen to be done because the SLA is acting in the interest of Perak.
"When you cloud the political background of that of the individual, then you start to say there is conflict," he replied. "But when you look at the law, it is clear he is acting for the menteri besar in Kuala Lumpur and he is acting for the speaker in Ipoh."
He vouched for the competency of the SLA. "He was the SLA to Terengganu before," he told reporters when asked about Sivakumar potentially having no confidence in Ahmad.
"Ten years ago, we appeared together in an election petition in Sabah. The issue of competency does not arise at all. It is the speaker who is trying to make it difficult."
According to Hafarizam, the grounds of judgment were based on the test of payment. "Although the speaker is not paid by the ordinary public services commission, he is paid under the consolidated fund which comes from the state so there is no issue that he is not a branch of the government."
He pointed out that in the preamble of Perak constitution, the government is defined to mean the executive and the legislative assembly. However, Sivakumar's lawyers have pointed out that according to Article 132 (3) (b) of the Federal Constitution, the speaker cannot be considered a public servant and therefore is not obliged to be represented by the SLA.
But Hafarizam interpreted it differently. "We are not denying that the speaker is not a public servant as they come under JPA (Public Service Department). But the speaker is a public officer exercising public duty and has a public office so you are part of government."
Nga Hock Cheh, one of Sivakumar's lawyers, told reporters that under Article 4 of the Federal Constitution, the Federal Constitution takes precedence over all other laws including the Government Proceedings Act.
Yesterday, Chan Kok Keong, who also represents Sivakumar, pointed to the Federal Constitution's Article 132 (3) (b) which states that "the public service shall not be taken to comprise the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a state."
He said Sivakumar’s lawyers are waiting for further instructions to appeal the latest court decision but have already decided to appeal Tuesday's court ruling that private lawyers have no locus standi.
Augustine Anthony, who is one of five lawyers acting for Sivakumar, said that as the SLA is having difficulty establishing communication with the speaker, it would be impossible for the SLA to act in the best interest of the speaker and called on the SLA to disqualify himself.
"It is elementary principle that if a solicitor or counsel is unable to get instructions from the client, he should discharge himself from acting as counsel," Augustine told The Malaysian Insider. "This is normal practice in court."
He was referring to the SLA's excuse to get an adjournment of today's hearing where the three former Pakatan Rakyat state representatives, Jamaluddin Radzi, Mohd Osman Jailu and Hee Yit Foong, are seeking a declaration that they are still representatives of their constituencies despite the speaker declaring their seats vacant.
The new date for the hearing has been set for March 11 and Hafarizam said the Election Commission has obtained an intervention order to make submissions in the case.
Meanwhile, the court has set March 23 to hear the request to lift the speaker's suspension of Zambry and his six executive councillors.
Ipoh High Court Judicial Commissioner Ridwan Ibrahim denied Sivakumar the use of lawyers of his choice after hearing submissions from both sides for almost two hours.
"Sivakumar has suffered an injustice by not being able to engage a lawyer of his choice and being forced to have a lawyer that is obviously in a position of conflict," Bar Council secretary Lim Chee Wee told The Malaysian Insider.
State legal adviser (SLA) Datuk Ahmad Kamal Shahid is also representing Barisan Nasional Perak Menteri Besar Datuk Zambry Abdul Kadir in a lawsuit brought against him in Kuala Lumpur by ousted MB Datuk Seri Nizar Jamaluddin.
Datuk Hafarizam Harun, who is leading the lawyers representing the three independent state representatives who switched to support Barisan Nasional, said Sivakumar could use private lawyers only if he resigns.
"Then we can elect a new speaker from the Barisan Nasional," Hafarizam said, reflecting Barisan Nasional's strategy to oust the speaker.
He added that Sivakumar had no choice but to use the SLA even if he had no faith in that person. "The prime minister also has to use the Attorney-General. It is not a matter of choice."
Hafarizam denied any conflict of interest in the current situation where the SLA is also representing Zambry, saying that both Zambry and Sivakumar are part of the state government while Nizar is not.
When asked whether justice is being seen to be done by having the SLA represent both Zambry and Sivakumar, Hafarizam said that justice is seen to be done because the SLA is acting in the interest of Perak.
"When you cloud the political background of that of the individual, then you start to say there is conflict," he replied. "But when you look at the law, it is clear he is acting for the menteri besar in Kuala Lumpur and he is acting for the speaker in Ipoh."
He vouched for the competency of the SLA. "He was the SLA to Terengganu before," he told reporters when asked about Sivakumar potentially having no confidence in Ahmad.
"Ten years ago, we appeared together in an election petition in Sabah. The issue of competency does not arise at all. It is the speaker who is trying to make it difficult."
According to Hafarizam, the grounds of judgment were based on the test of payment. "Although the speaker is not paid by the ordinary public services commission, he is paid under the consolidated fund which comes from the state so there is no issue that he is not a branch of the government."
He pointed out that in the preamble of Perak constitution, the government is defined to mean the executive and the legislative assembly. However, Sivakumar's lawyers have pointed out that according to Article 132 (3) (b) of the Federal Constitution, the speaker cannot be considered a public servant and therefore is not obliged to be represented by the SLA.
But Hafarizam interpreted it differently. "We are not denying that the speaker is not a public servant as they come under JPA (Public Service Department). But the speaker is a public officer exercising public duty and has a public office so you are part of government."
Nga Hock Cheh, one of Sivakumar's lawyers, told reporters that under Article 4 of the Federal Constitution, the Federal Constitution takes precedence over all other laws including the Government Proceedings Act.
Yesterday, Chan Kok Keong, who also represents Sivakumar, pointed to the Federal Constitution's Article 132 (3) (b) which states that "the public service shall not be taken to comprise the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a state."
He said Sivakumar’s lawyers are waiting for further instructions to appeal the latest court decision but have already decided to appeal Tuesday's court ruling that private lawyers have no locus standi.
Augustine Anthony, who is one of five lawyers acting for Sivakumar, said that as the SLA is having difficulty establishing communication with the speaker, it would be impossible for the SLA to act in the best interest of the speaker and called on the SLA to disqualify himself.
"It is elementary principle that if a solicitor or counsel is unable to get instructions from the client, he should discharge himself from acting as counsel," Augustine told The Malaysian Insider. "This is normal practice in court."
He was referring to the SLA's excuse to get an adjournment of today's hearing where the three former Pakatan Rakyat state representatives, Jamaluddin Radzi, Mohd Osman Jailu and Hee Yit Foong, are seeking a declaration that they are still representatives of their constituencies despite the speaker declaring their seats vacant.
The new date for the hearing has been set for March 11 and Hafarizam said the Election Commission has obtained an intervention order to make submissions in the case.
Meanwhile, the court has set March 23 to hear the request to lift the speaker's suspension of Zambry and his six executive councillors.
[Malaysiakini BM version]
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