Restraining order served on Sivakumar, no retroactive effect - emergency sitting legal !

By Wong Choon Mei

The Ipoh High Court order restraining Perak legislative Speaker V Sivakumar from holding any unlawful assembly meetings was served on his staff at his office this afternoon.

Issued by Judicial Commissioner Ridwan Ibrahim, the order dated Mar 3 stated:

“It is hereby ordered that the 1st defendant, YB Encik V Sivakumar is restraint from convening any unlawful meetings purporting it to be a meeting of the Perak state legislative assembly.”

It did not mention any retrospective effect and therefore does not cover the emergency sitting convened by Sivakumar at about 10.20 am on Mar 3. The order - sought by Umno leader Zambry Kadir - was granted hours later at close to 5 pm.

Sivakumar’s lawyer Chan Kok Keong, who described the order as “vague” and “harmless”, said his client was not likely to waste efforts to have it set aside.

“My client has not convened any unlawful meeting nor will he do so. There was absolutely no pronouncement by the court affecting the morning proceedings,” Chan said.

He was referring to the emergency meeting convened by Sivakumar to table three motions that could precipitate Umno-BN’s loss of power in the state government..

The order was served at about 4.15 pm on Mar 4 on Sivakumar’s staff and on state legal advisor, Ahmad Kamal Shahid, at 3.15 pm.

It also did not state for how long the restraint would last - another controversial point which may raise eyebrows especially among the Malaysian legal fraternity.

Condemned by legal fraternity

The manner in which the court heard the case, which was conducted without the presence of Sivakumar’s appointed lawyers, has shocked the fraternity and attracted harsh criticism from civil society.

Apart from falling short in terms of legal technicalities, it was also condemned for lacking in the principles of natural justice.

Said Bar Council president Ambiga Sreenevasan: “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?”

Conflict of interest

Said Malik Imtiaz Sarwar, president of Human Rights Association (Hakam): “The Government Procedures Act 1956 allows civil servants to be represented by representatives from the Attorney-General Chambers and this include the state legal advisers.

“This means it covers all civil servants and also the executive where the state would appoint its own lawyers to protect them from civil suits.

“However, this does not cover the Speaker of the House as he is considered part of the legislature. Being an elected representative and elected in the position of Speaker, he can choose any lawyer to represent him.

“I also cannot understand the legality in requiring Perak legal adviser Ahmad Kamal Md Shahid to represent Sivakumar.

“Ahmad Kamal had represented Barisan Nasional Menteri Besar Zambry Abdul Kadir in ousted menteri besar Mohd Nizar Jamaluddin’s judicial review application and this represented a conflict of interests.

“How can they say the state legal adviser should represent Sivakumar, when he is already seen appearing for Zambry.

“I found it surprising that such an urgent scenario as it was yesterday, the judicial commissioner decided not to allow Sivakumar to be represented although Thomas and other lawyers were present and had indicated they were representing him.” SK

perak express