Wednesday, March 04, 2009

State Legal Advisor acts for Zambry...and then against Zambry - conflict of interest

Did the assistant State Legal Advisor take instructions from the Speaker - or was he there without taking any instructions.

Was the assistant State Legal Advisor acting in opposition to Perak Mentri Besar Datuk Dr Zambry Abdul Kadir, or was he acting in cohorts with that alleged BN Menteri Besar and his lawyers?
The High Court yesterday ordered state Speaker V. Sivakumar not to convene meetings of the Perak state legislative assembly.

Lead counsel for the plaintiffs Firoz Hussein Ahmad Jamaluddin (left) and Umno legal adviser Datuk Mohd Hafarizam Harun arriving at the court yesterday.
Lead counsel for the plaintiffs Firoz Hussein Ahmad Jamaluddin (left) and Umno legal adviser Datuk Mohd Hafarizam Harun arriving at the court yesterday.
The restraining order, granted in chambers, by judicial commissioner Ridwan Ibrahim, was not retroactive and no time period was specified.

The order was issued under the Specific Relief Act covering public officials, which include the speaker, said lead counsel for the plaintiffs, Firoz Hussein Ahmad Jamaluddin, after leaving the chambers at 4.55pm.

He submitted that the speaker had no power to convene the assembly, even in times of emergency, as only the Sultan of Perak could do so as provided under Section 36(1) of the Perak constitution.

"We considered the laws under the Federal Constitution that give immunity to the speaker. We argued that the immunity did not apply to the present circumstances as there were no proceedings within the state assembly."
Asked whether the judicial branch of government had encroached on the legislature, he said: "At the end of the day, it is very important to recognise that the judiciary acts as a check and balance in the doctrine of the separation of powers.

"You don't just have one side being able to do whatever it likes. Who will actually decide the limits of the powers of Parliament?"

He said the ruling was significant as there were many positions forwarded by various parties and the decision was the first concrete step towards restoring constitutional government in Perak.

Ridwan issued the restraining order after 90 minutes of submissions and 10 minutes of deliberation.

On Monday, counsel for Perak Menteri Besar Datuk Zambry Abdul Kadir and the six executive councillors filed a suit seeking to declare that their suspension by Sivakumar on Feb 18 was unconstitutional.

They also applied for an injunction, as interim relief, to stop Sivakumar and Pakatan Rakyat state assemblymen from holding any state legislative assembly meetings.

Firoz, assisted by Umno legal adviser Datuk Mohd Hafarizam Harun and five others, appeared for Zambry and the six, while assistant state legal adviser Zulkarnain Hassan appeared for Sivakumar and the Perak state legislative assembly.

In the morning, lawyer Tommy Thomas and four others were told by Ridwan that they had no locus standi to represent Sivakumar or the state assembly.

Ridwan denied Thomas' application to hear the suit in open court, and agreed with Mohd Hafarizam and Zulkarnain that private lawyers could not represent the speaker, who was considered part of the government, without first obtaining permission from the Attorney-General or the state legal adviser as stipulated under Section 24(3) of the Government Proceedings Act 1956.

He allowed Thomas to hold a watching brief but denied him speaking rights in the proceedings, prompting Thomas to withdraw himself at 10.20am.

Thomas said he had submitted that the state legal adviser should only represent the executive due to conflict of interest when the three branches of the government were in contestation.

He argued that the speaker was not a "public officer" and the assembly was not "government" within the meaning of the Act.

At 2.30pm, Ipoh Barat MP and counsel M. Kulasegaran handed a letter from Sivakumar to Ridwan, informing the court that the speaker had never authorised the state legal adviser to act for him and that there had been no communication between them.

Kulasegaran said state legal adviser Datuk Ahmad Kamal Md Shahid was representing Zambry in a lawsuit in Kuala Lumpur and that he could not therefore represent Sivakumar and the Perak legislative assembly.

Asked on this, Zulkarnain said there was "no such thing" as the state legal adviser looked after the interests of the government. - The New Straits Times, 4/3/2009,
Zamry & Co get order to stop Sivakumar
Which government's interest was Zulkarnain Hassan (the assistant State Legal Advisor) concerned about? The Pakatan Rakyat State Government ....or...that disputed "BN State Government"? Given the fact that the State Legal advisor appeared on behalf of that disputed "BN Menteri Besar", I believe we all will know where his loyalty lies.

It is a joke when a Judicial Commissioner, i.e. a probation judge, can bar the Speaker of a State Legislative Assembly to carrying out his duties/functions? Something is not right...

If the courts are to decide on such disputes - maybe, it is time we do have our own Constitutional Courts

On the issue of whether the Speaker can appoint his own lawyers to act for him, I had argued in my earlier posting that he can. See my earlier posting, i.e. PERAK: Judicial Commissioner better behave if they want to become Judges...

Article 132(3) of the Federal Constitution also clearly states that the

(3) The public service shall not be taken to comprise -

(a) the office of any member of the administration in the Federation or a State; or

(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; or

(c) the office of judge of the Federal Court, the Court of Appeal or a High Court; or

(d) the office of member of any Commission or Council established by this Constitution or any corresponding Commission or Council established by the Constitution of a State; or

(e) such diplomatic posts as the Yang di-Pertuan Agong may by order prescribe, being post which but for the order would be posts in the general public service of the Federation.

Some interesting information are found below:-
a) Press Statement by one Tommy Thomas, which tells us what happened in the chambers of the Judicial Commissioner;
b) Press Statement of the Malaysian Bar which also deals with what happened in Ipoh.




Because much public interest has been generated in this matter, it is important that I briefly state for the record what transpired in Chambers before Ridwan Ibrahim, JC this morning.

I was told by the Court interpreter that the Judge wanted only one counsel from each party to attend before him in Chambers. Counsel entered his Chambers at about 9.45 a.m. The Plaintiffs were represented by Mohd Hafarizam Harun. The Deputy State Legal Adviser Zulkifli also appeared in Chambers. I represented the Defendants. 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, Mr Chan Kok Keong, Mr Philip Koh, Mr Augustine Anthony and Mr Leong Cheok Keng and I had no locus standi to represent the Defendants, namely the Speaker and the Perak State Legislative Asssembly. According to him, only the State Legal Adviser can act for these two Defendants. The one exception is a fiat granted by the Attorney General and/or the Legal Adviser under Section 24(3) of the Government Proceedings Act 1956. The State Legal Adviser supported this submission.

I submitted that the Government Proceedings Act is not applicable on the facts of this case and these proceedings because the Defendants do not come within the Government Proceedings Act as 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.

At the end of submissions which lasted about half an hour, the Judge ruled that we have 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.

The Court recorded that I could withdraw from Chambers, which I did at about 10.20 a.m.


(12.30 p.m.)

Tuesday 3.3.2009, Source: Malaysian Bar Website

The Malaysian Bar Press Release: Let the people decide

It must be appreciated that the events unfolding in Perak are unprecedented and involve complex legal issues. It is impossible to provide a conclusive opinion on them. Some matters may, however, be addressed generally as a matter of principle.

Today 27 Assemblymen in Perak were prevented by the OCPD from entering the State Secretariat building, apparently upon “instructions” from the State Assembly Secretary.

The role of the State Assembly Secretary now comes under scrutiny. He is an official appointed from the public services and is only responsible for the administrative management of the State. He therefore has no authority to decide or pronounce whether a legislative assembly sitting is valid or not. The police have therefore acted improperly on his advice in defiance of the Speaker of the Legislative Assembly. These errors are further compounded by events that transpired in the High Court.

It was asserted before the Court by the plaintiff’s lawyers that the Speaker ought to be represented by the State Legal Advisor rather than private lawyers. There is certainly legal basis to disagree with that view but a more substantive matter of general principle must be addressed as to the position of the State Legal Advisor

Firstly, every lawyer must act on the instructions of his client and not otherwise. The Speaker has stated that he never gave instructions to the State Legal Advisor to either appear for him or to argue the case on his behalf. This is a matter that the Court must satisfy itself of before proceeding.

Secondly, the State Legal Advisor is clearly in a position of conflict. He and his department are presently acting for Dato’ Zambry in the Kuala Lumpur High Court suit where Dato’ Zambry’s appointment is being challenged. How can he or his department now act for the Speaker against Dato’ Zambry?

If the parties who file and defend proceedings in Court are confident of the strength of their case, there is little reason to taint or mar the proceedings with acts that militate against natural justice and fair play. It bears repeating that justice must not only be done but must be seen to be done. The Courts have a duty to uphold the highest principles of justice, fairness and their own independence. We must respect the doctrine of separation of powers and uphold the Federal Constitution.

The Legislative Assembly was convened by the Speaker a short distance from the State Secretariat building. There are questions as to whether it was permissible to hold the Legislative Assembly outside the State Secretariat building. Of course, the State Secretariat building is where the Legislative Assembly ought to have been held. However, the Speaker and Assemblymen were prevented from holding it in the proper place by the police (and this raises serious issues as to the legality of the police action). Thus the Speaker had no choice but to act within what may be seen as wide powers to convene the meeting elsewhere. No doubt there will be contrary views but it must be understood that this situation is unprecedented and the Standing Orders may not adequately cover these eventualities, thus leaving the Speaker with the powers to act according to the circumstances of the case.

We will no doubt see another case filed in Court. And the public has to further suffer the consequences of uncertainty.

The situation is untenable and cries out for the one thing that will resolve it conclusively – fresh elections. There is now a window of opportunity for this to happen. Let the people decide.

Dato’ Ambiga Sreenevasan
Malaysian Bar

3 March 2009

No comments: