IPOH (March 5, 2009) :
The High Court here today ruled for the second time in three days that Perak State Assembly Speaker V. Sivakumar(pic) is a public servant of the Perak government and must be represented by the state legal adviser and not by private lawyers of his choosing.
The ruling by Judicial Commissioner Ridwan Ibrahim was on a case filed by three Barisan Nasional-friendly independent assemblymen against Sivakumar for declaring their seats vacant on the strength of their pre-dated resignation letters.
After hearing submissions from lawyers for both parties in his chambers, Ridwan said Sivakumar is a state government officer as stated under Section 2 and 24(3) of the Government Proceedings Act 1956 and ordered him to engage the state legal adviser as his counsel.
Furthermore, he said, as Sivakumar is drawing his salary from the consolidated fund of the Perak state government, it makes him a government servant of the state.
Sivakumar had declared the seats of the assemblymen for Changkat Jering (Mohd Osman Mohd Jaitu), Behrang (Jamaluddin Mohd Radzi) and Jelapang (Hee Yit Foong) vacant after receiving their resignation letters and subsequently informed the Elections Commission (EC) to hold by-elections for the vacant seats.
The EC decided against it as the three assemblymen claimed they had not resigned and were still assemblymen. The trio then applied to the High Court to declare that their state seats were not vacant.
Last Tuesday, in ruling that Sivakumar's private lawyers had no locus standi to represent him in an application filed by Mentri Besar Datuk Zambry Abdul Kadir, Ridwan had also ruled that Sivakumar is a state government officer under Section 24 of the Government Proceedings Act that states that in civil proceedings by or against the government, the state legal adviser shall act on their behalf.
Sivakumar’s legal team yesterday comprised Chan Kok Keong, Nga Hock Cheh, Augustine Anthoney and Mohd Asri Othman.
State legal adviser Ahmad Kamal Shahid was also present.
The lawyers for the three assemblymen -- Datuk Hafarizam Haron, Syed Faisal Syed Abdullah, Abu Bakar As-Sidek, M. Reza Hassan, Badrul Hishah Abdul Wahab and Faizul Hilmy Ahmad Zamri -- are also the same lawyers who represent Zambry.
Earlier, Chan said in his submissions that Sivakumar should not be considered a public servant as Article 132(3) (b) of the Federal Constitution states that “the public service shall not be taken to comprise: (b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a state.”
In arguing that Sivakumar is not bound by Section 24 of the Government Proceedings Act, 1956, Chan also stressed that Sivakumar had authorised him to represent Sivakumar whereas the state legal adviser was not authorised.
Sivakumar's lawyers will file an appeal against both decisions by Ridwan to the Registrar of the Appeal Court next week.
The EC will be represented in this case by Senior Federal Counsel Siti Salwa Musa as intervener.
Later, at a press conference, Hafarizam said the matter has been adjourned to March 11 to allow the state legal adviser Ahmad kamal to take instructions from the speaker.
He said there is no conflict of interest for Ahmad Kamal to represent Zambry in the Kuala Lumpur High Court case filed by former mentri besar Datuk Seri Mohammad Nizar Jamaluddin to seek legality on the post of mentri besar, and Sivakumar’s case in the Ipoh High Court, as both are different in nature.
Asked what would happen if Sivakumar did not want the services of Ahmad Kamal, Hafarizam said: “Ask him to resign from his post and we can appoint another speaker from the Barisan Nasional.”
Ridwan also fixed March 23 to hear an application by Zambry and his six executive council members against Sivakumar's decision to suspend them from the state assembly for 18 months and 12 months, respectively, after a hearing of the Rights and Privileges Committee for contempt of the House.
The seven executive members are seeking an order from the High Court that Sivakumar’s ruling is illegal and that they be allowed to attend all assembly sittings.
Zambry’s legal team sought an earlier date to hear both cases but Ahmad Kamal said he needed more time as he has to consult Sivakumar on the two matters.