Restraining order against Sivakumar
Kuek Ser Kuang Keng | Mar 3, 09 7:13pm
The Ipoh High Court today restrained Perak state assembly speaker V Sivakumar from convening any unlawful meetings purporting to be state assemblies.
Judicial commissioner Ridwan Ibrahim made the ruling in his chambers following an application by Barisan Nasional Menteri Besar Zambry Abd Kadir and his six exco members.
The application was filed this morning and heard in chambers at 2.30pm. Ridwan made his decision under Section 44 of Specific Relief Act.
Zambry and the exco members were represented by Firoz Hussein Ahmad Jamaluddin, Mohd Hafarizam Harun, Abu Bakar As Sidek, Cheng Mai, Badrulhishah Abdul Wahab, Faizul Hilmy Ahmad Zamri and Zaireen Zainal.
Sivakumar was represented by the state’s deputy Zulqarnain Hassan following a court ruling this morning that the speaker could not be represented by private lawyers.
Talking to reporters after the hearing-in-chambers, Firoz said the judge had not elaborated his decision apart from allowing Zambry’s application to prohibit Sivakumar from convening any meetings purported to be assembly sittings.
He however said that this ruling was the “first and complete step that has been taken to restore constitution government in Perak”. He described the current situation as “almost chaos”.
He said that their submissions was on the fact that the speaker does not have the power to call any assembly, even an emergency sitting such as the one held earlier today.
The High Court order has no time limit and penalties would be decided later if and when the speaker holds the next meeting deemed illegal.
To be served on speaker tomorrow
Firoz also said that the Specific Relief Act allowed the court to grant an order to a public officer, in this case, the speaker.
He said that they also quoted the federal constitution in matters relating to immunity enjoyed by the speaker.
“However in this case the speaker does not enjoy any immunity because there is no proceeding in the assembly,” he said.
“The so-called assembly under the tree will still remain as an assembly under the tree,” added Mohd Hafarizam.
Firoz (photo) also noted that under Section 36(1) of the state constitution, only the sultan can summon for a meeting.
When asked on what penalty Sivakumar would face if he disobeyed the court order, Firoz said he didn’t want to speculate. He said there was no specific penalty in the Act.
“We will see what the speaker does next,” added Mohd Hafarizam.
The lawyers also said that they will get the draft order later today and serve in on Sivakumar tomorrow.
The hearing in chambers today started with a letter submitted by Sivakumar to Ridwan’s secretary stating that he had not authorised the state legal advisor to act on his behalf.
“I have not received any communications from the legal advisor’s office nor have I given any instructions to him,” Sivakumar said in the statement which was delivered by Ipoh Barat MP M Kulasegaran.
On this, Mohd Hafarizam said that they were not aware on the contents of the letter. He also said that the judge need not make a ruling on the letter as “it was not before him”.
A case of conflict?
Kulasegaran had earlier said that it was a conflict of interest that the legal advisor who acted for Zambry in a case last week represented Sivakumar in a case filed by Zambry today.
“How can he act for both plaintiff and defendant? It’s a clear case of conflict,” said Kulasegaran.
When asked to comment on this, the deputy state legal advisor Zulqarnain said that he was only “looking after the interest of the government”.
“Our duty as legal advisor is to advise the government,” he said before walking away. However, he did not indicate which government he was representing.
Ridwan will next hear an application by three BN-friendly independents – Behrang assemblyperson Jamaluddin Mohd Radzi, Changkat Jering assemblyperson Mohd Osman Mohd Jailu and Jelapang assemblyperson Hee Yit Foong – against Sivakumar for wrongly declaring their seats vacant using their undated resignation letters.
This application will be heard on Thursday.
On that day, the judge will also be fixing another date to hear Zambry’s and the exco members’ application against their suspension.
The matter was adjourned this morning after the court ruled that the speaker could not be represented by private lawyers.
Lawyers barred from representing speaker
Kuek Ser Kuang Keng | Mar 3, 09 1:02pm
The Ipoh High Court today dealt a blow to Perak assembly speaker V Sivakumar by disallowing his team of lawyers from representing him in two actions filed by BN Menteri Besar Zambry Abd Kadir.
Judicial commissioner Ridwan Ibrahim had ruled that private lawyers have no legal standing to represent the speaker.
The ruling was made following an application made by Zambry’s team of lawyers.
“Their argument was that the speaker is part of government, and because the speaker is part of government, only the Attorney General’s Chambers and the state legal advisor can appoint lawyers.
“And they normally appoint themselves,” explained Sivakumar’s lawyer Tommy Thomas (left) to reporters after a 30-minute hearing session in the judge’s chambers.
He added that the judge ruled that the present set of lawyers representing Sivakumar had no legal standing and could not represent the speaker.
“The only person that can represent the defendant is the state advisor,” he said.
He said that the only exception to this was if approval has been given by the Attorney General and/or the legal advisor under Section 24(3) of the Government Proceedings Act 1956.
Thomas also said that their argument that it would be a conflict for the state advisor to represent the speaker was dismissed by the judge.
He also said that the judge dismissed their application to conduct a watching brief with the right to submit on behalf of the speaker.
“The judge said we can hold a watching brief but may not make any submissions,” he added.
What transpired in chambers
Thomas also issued a press statement outlining what transpired in the judge’s chambers. He said that he entered Rizwan’s chambers at about 9.45am, adding that only one counsel from both sides were allowed in.
Hafarizam represented Zambry and his exco members while the deputy state legal advisor Zulkifli Zulkarnain was also present in the judge’s chambers.
“Once in chambers, I requested that the proceedings be held in open court because of the public interest in the matter. The plaintiffs objected, and the judge ruled that it should be heard in chambers.
“At the outset, counsel for the plaintiffs stated that my team and I had no locus standi to represent the defendants, namely the speaker and the Perak state legislative assembly.
Thomas said that according to Hafarizam only the state legal advisor can act for these two defendants.
“The one exception is a fiat granted by the Attorney General and/or the legal advisor under Section 24(3) of the Government Proceedings Act 1956. The state legal advisor supported this submission.
Thomas said that he submitted that the Government Proceedings Act was not applicable on the facts of the case and these proceedings because the defendants do not come within the Act.
“The speaker is not a ‘public officer’ and the assembly is not ‘government’ within the meaning of that Act. I also produced a letter by the speaker appointing our team as the lawyers for the defendants,” he added.
He said that at end of submissions which lasted about half an hour, the judge ruled that the defence team had no locus standi to represent the defendants.
“I then applied to hold a watching brief, but with speaking rights. The plaintiffs again objected. The court ruled that I could hold the watching brief but could not submit or participate in its proceedings.
“In consequence of the two rulings, I informed the judge I did not wish to remain in chambers, and sought his permission to leave,” he added in his statement.
He said that the court recorded that Thomas could withdraw from Chambers, which he did at about 10.20 am.
Taking fresh instructions
With this ruling, Thomas told reporters that they would be taking instructions from Sivakumar on the next course of action, including the possibility of appealing against the judge’s decision.
“We disagree with the ruling but we respect it,” said Thomas.
Thomas was among a group of lawyers including Chan Kok Keong, Philip Koh Tong Ngee and Augustine Antony who had appeared for Sivakumar this morning to face the actions filed by Zambry.
Zambry and his six exco members had filed two suits against Sivakumar – the first was against his decision to use the undated resignation letters of three BN-friendly independents to declare their seats vacant and the second was over the suspension meted out by Sivakumar against Zambry and his exco members.
Following the decision not to allow Thomas and others to represent Sivakumar, justice Ridwan adjourned the matter to another date to be fixed soon.
Zambry was represented by Mohd Hafarizam Harun, Firoz Hussein Ahmad Jamaluddin, Badrul Hishah Abd Wahab and others.
Injunction filed this morning
Speaking to reporters later, Hafarizam (photo) said that they had objected on the presence of private lawyers to represent Sivakumar.
“Our objection was based on the fact that these lawyers had not obtained the permission from the state legal advisor to represent the speaker,” he said.
Zambry’s lawyers also said that the menteri besar and his exco members can be represented by private lawyers as they had filed the suits in the personal capacity.
In a press conference attended by Firoz as well, Hafarizam also revealed that they had filed an injunction application at 8.30am against all unlawful assembly sittings by Pakatan.
The matter will be heard before justice Ridwan at 2.30pm today.
“The application is not just an injunction, but also alternatively for a stay of all further unlawful meetings of the state assembly,” added Firoz.
When asked as to who will represent the speaker, Firoz (photo) responded: “Presumably must be the state legal advisor or his representatives.”
In Kuala Lumpur, Perak state legal advisor Ahmad Kamal Shahid, refused to comment when asked who would be representing Sivakumar this afternoon.
Both Zamry and Sivakumar were not present in the court this morning.
While the matter was being argued in justice Ridwan’s chambers, Sivakumar chaired an emergency assembly sitting under a tree in a car park next to the state secretariat, where Pakatan representatives passed motions to support Mohd Nizar Jamaluddin as the menteri besar as well as to dissolve the state assembly.