The Court of Appeal led by Justice Md Raus Sharif with Justice R Abdull Hamid Embong and Justice Ahmad Maarop today unanimously allowed Perak speaker V Sivakumar to be represented by his own lawyers in two pending suits related to the Perak crisis.
Today's proceedings in the Appeal Court was before an open court, while proceedings held by Judicial Commissioner Ridwan Ibrahim at the Ipoh High court was held in chambers ie in closed doors.
The Appeal Court decision set aside Judicial Commission Ridwan Ibrahim's rulings on March 3 and March 5 that Sivakumar can only be represented by the state legal advisor as the speaker was a government officer.
Following today's decision, lawyer Chan Kok Keong for Sivakumar told reporters they are likely to apply that the two forthcoming cases would NOT be heard before Ridwan Ibrahim. "We will make an application and we'll see on Monday," he said.
The first involves three independent state representatives seeking to quash the speaker's ruling that their seats were vacant.The second suit was brought by Menteri Besar Zambry Abd Kadir and his six exco members against the speaker for barring them from the state assembly.
There are four other High court judges in Ipoh namely Wan Afrah Wan Ibrahim, Zainal Adzam Abdul Ghani and Tarmizi Abdul Rahman.
Throughout the Appeal Court hearing, the three-member panel seemed UNIMPRESSED with the points raised by State Legal Advisor Ahmad Kamal Md Shahid that he should be allowed to represent the speaker and also arguments by lawyers representing Zambry, his state executive councillors and the three assemblypersons.
Justice Md Raus said,
"The court finds there is no provision requiring the speaker to appoint the state legal advisor as his representative. We also found that the speaker is not considered a state officer or a government officer (civil servant) under the Government Procedures Act 1956.Lawyer Tommy Thomas for Sivakumar then applied whether the Court of Appeal could direct a replacement of Judicial Commissioner Ridwan Ibrahim from hearing the two suits following today's decision. However, Md Raus told Thomas it was better for him to write a proper application and the lawyer indicated he would do that.
Following this, the court is at liberty to allow both appeals by the applicant and he can appoint any lawyers of his choice to represent him. The court sets aside the March 3 orders by the High Court."
Impartiality of Ahmad Kamal as State Legal Adviser Questioned by the Court
- Initially, the proceeding was set to hear the notice of motion filed by Sivakumar. Ahmad Kamal began by making a preliminary objection to the hearing of the motion filed by Sivakumar on the basis,firstly, that the notice was not filed through his office and secondly, Judicial Commissioner Ridwan Ibrahim had ruled only he was allowed to represent appellant (Speaker).
Md Raus disagreed and instead used the court's discretion to allow the hearing of the appeal proper following the urgency of the matter as Sivakumar is facing three cases.
The panel did not allow Tommy Thomas who was representing Sivakumar to submit first as the court considered him as amicus curiae (friend of the court).
- The submissions made by Ahmad Kamal resulted in the three judges to question the impartiality of Ahmad Kamal as State Legal Adviser in representing both Zambry and Sivakumar in the matter.
- Lawyer Syed Faisal Syed Abdullah for Zambry and the three assemblypersons submitted that the suits were on Sivakumar in his official capacity as the speaker and not his personal capacity. He submitted "Hence, the Government Procedures Act applies on the speaker as his wages come under the state consolidated fund."
Justice Abdull Hamid interjected how can this be as the consolidated fund also pays the wages of the rulers and judges "so can you consider rulers to be civil servants?"
Lawyer Syed Faisal then continued that his client was objecting to Sivakumar's private lawyers as he was supposed to be represented by the state legal advisor and not anybody else."If Sivakumar wants to apply for private lawyers he should have asked permission from the state legal advisor," he said.
Md Raus then asked Ahmad Kamal whether Sivakumar has applied. The state legal advisor replied, "Yes, I have considered it and would not allow Sivakumar's application for a fiat (decree) for him to appoint his own counsel." .
That resulted in Md Raus and Abdull Hamid to interject again. Md Raus asked,
"You (Ahmad Kamal) represented Zambry's matter in the previous menteri besar Mohd Nizar Jamaluddin's judicial revision and now you claim to represent Sivakumar, isn't this a conflict of interests."Ahmad Kamal replied that his interests were towards protecting the Perak constitution and government and he can remain impartial at both times."It may seem to be an odd situation and the conflict seemed to be in matters of perception. I do not see a conflict in my role in representing Zambry and also Sivakumar despite them coming from different political parties," he said.
The comment resulted in more flak from Abdull Hamid who retorted:
“You tell me the truth how you can act neutrally in the case. I think you can be an arbitrator to the two sides but not act on both of them. Justice must seen to be done."
- Ahmad Kamal had represented Zambry in Nizar's suit to determine who is the legitimate Perak menteri besar. During proceedings then, he had voiced Zambry's objection to then Judicial Commissioner Mohamad Ariff Md Yusof to hear the case because the judge had represented PAS and PKR when he was a practicing lawyer.
Ahmad Kamal failed to appear on both occasions when Sivakumar's suit was being heard in Ipoh, choosing instead to come to Kuala Lumpur where Zambry's case was being heard. Yet, during today's proceedings in the Appeal Court he claims to represent Sivakumar from the DAP, which is now part of the Pakatan Rakyat coalition.
- Tommy Thomas meanwhile submitted that lawyers should have been allowed to represent Sivakumar. He said,
"When former Lord President Salleh Abas was suspended for three months in 1988, he was allowed to appoint his own lawyers in the appeal while the then Attorney General Abu Talib Othman acted for the government.Thomas also said that according to Article 36 of the Federal Constitution, the speaker is part of the legislature and should NOT be considered a civil servant based on the principles of the separation of powers.
"This was the former Lord President and he was allowed to appoint his own counsel. Why can't the speaker be allowed to appoint his own lawyers."
The definition of civil servant, Thomas said, should be limited to cover the executive in the case and not cover other branches including the legislature.
Thomas also argued that the argument that the speaker’s wage comes from the consolidated fund does not hold water, as the nine Malay rulers are also paid by using the fund but they could not be considered civil servants.