Perak Speaker can appoint private lawyers

The restriction in the Government Proceedings Act on “public officers” using private lawyers only with the permission of the Attorney General does not apply to the Speaker of the Legislative Assembly of Perak defending a suit brought against him in his capacity as Speaker. Thus, the Ipoh High Court decision to bar Tommy Thomas and others from acting for Speaker Sivakumar is, with respect, wrong.

It appears that Ipoh High Court Judicial Commissioner Yang Arif Tuan Ridwan bin Ibrahim has ruled that private lawyers cannot appear on behalf of Speaker of the Perak State Assembly Sivakumar in the litigation against him brought by UMNO Assemblypersons because of the Government Proceedings Act 1956.

This decision is of particular interest to those concerned with the right of litigants to have an advocate to champion his cause in Court without fear or favour. Regrettably, and with respect, it appears that this decision does not seem to be in line with the provisions of the Government Proceedings Act 1956 read together with the Federal Constitution.

Section 24(3) of the Government Proceedings Act 1956 seems to suggest that the State Legal Adviser must retain advocates and solicitors in order to act on behalf of the “State government” or “State officers” in “civil proceedings by or against the Government of a State or a State officer”. This follows on from sections 24(1) and (2) which provide that law officers (meaning lawyers from the Attorney General’s Chambers) “may” act on behalf of “public officers” who are sued by virtue of his office.

Thus, the law allows for the Attorney General’s Chambers to act or to appoint private lawyers to act for cases against public officers.

The term “public officer” is not defined in the Government Proceedings Act 1956. The Interpretation Act has the following definitions:-

“public office” means an office in any of the public services;

“public officer” means a person lawfully holding, acting in or exercising the functions of a public office;

“public services” means the public services mentioned in Article 132(1) of the Federal Constitution;

Article 132(1) of the Federal Constitution lists out several public services such as the armed forces, the judicial and legal services, the police service and the general public service. In a nutshell, the public services are what is commonly called government service or civil service.

But Article 132(3)(b) is instructive. It categorically states that “the public service shall not be taken to comprise” the Speakers of Parliament and the Legislative Assemblies of the State.

Hence, it appears that the restriction in the Government Proceedings Act on public officers using private lawyers only with the permission of the Attorney General does not apply to the Speaker of the Legislative Assembly of Perak defending a suit brought against him in his capacity as Speaker.

Thus, the Ipoh High Court decision to bar Tommy Thomas and others from acting for Speaker Sivakumar is, with respect, wrong.


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Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 3 March 2009. You can follow any responses to this entry through the RSS 2.0.

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44 Responses to Perak Speaker can appoint private lawyers

  1. Pingback: Remember, Review & Reclaim: My Pupillage Memories Of The Perak Crisis In Court | LoyarBurok

  2. mico

    BN's madness is our doing, as years ago we were tactfully taught by our leaders not to rock the boat but to b e confident that we 'chinese' have all it takes to overcome even the worst adversaries just through sheer hard work and calling ourselves 'chinese'. We have been had, i say, by the very same people who put self first before Nation. Like calling ourselves chinese 1st, and then nation 2nd. ( or last)

    So , the solution lies with us. . it should'nt be impossible.

  3. Pingback: Chin Peng dan Pokok Rakyat di Perak « Asian Correspondent

  4. Pingback: Friday the 13th - news & state of nation « delCapo

  5. Loyar Bagus

    Hawk,

    Your reasoning appears sound, especially in view of the persistent use to "may", as opposed to "must" in the legislation. I think we also need to look at the reason for the legislation, whether it was intended to curb representation for public officers or whether it was just to give them the (optional) benefit of state-sponsored representation. Has there been any case law on this?

    Another key question is whether Hafarizam had written consent from the State Legal Adviser to act for Zambry. News reports do not mention whether Sivakumar's legal team challenged Hafarizam's standing, which is SUCH an obvious point that either (i) Hafarizam did get consent (shock horror!) or (ii) they were just plain negligent.

  6. Why MB and his team can have private lawyers? Ans: They are not State officers in the first place. All of them are illegal MB/Excos. That is why the Court ruled that they can be represented by A & S.

    If they are the legimate MB/Excos, then the same ruling that applies to the Speaker Siva must also apply to them. They must, by applying the Court's decision, be represented by the SLA.

    According to JC Ridwan's reasoning, since Speaker Siva is paid allowances from public funds, then Siva is a public servant. He doesn't know or chose to ignore that the State Assy'men ie Zambery and team, are also paid allowances from public funds. You see the flaw of his reasoning.

    The actual law when appointing counsels is this; when you read the sections as a whole with reference made only to State matters.

    s.24(1)(b) : If the State Gov't is the party, only the SLA may appear for them. But the SLA can authorise in writing AG/SG/FC or A&S to appear for the Gov't. If an A&S is retained, then the State has to pay for the legal fees and other expenses of such A & S. Read s.s 3.

    s.s(2)(b) and (3) – if a public/State officer is sued in his personal capacity, the State will not offer any legal help in providing the services of their law officers since this is a personal matter. The said officer has to hire an A & S to appear for him. If he requires the services of the State's legal officers, then the SLA must certify in writing that it is in the interest of such officer that he be represented by the State legal officers. Alternatively if he engages an A&S and wants the State Gov't to reimburse his legal fees, the SLA must also certify as to the above.

    s.s 2(a) and 3. If the State officer is sued in his official capacity by virtue of his office, then he has a choice of engaging his own team of lawyers or to use the services of the State's legal officers. The State can't refuse his request to be represented by the State's legal officers and neither could the State forced him to accept the services of such officer. S.24 ( 2)(a) only states, that the State's legal officers may appear on behalf of the State officer. The choice is left entirely to the discretion of the State officer whether to use the services of the State's legal officers which is free of charge or to engage his team of lawyers at his own cost and expenses.

    If the State Officer decides to engage his own team of lawyers, and he also wants the State to compensate for the cost and expenses incurred, then the SLA must certify in writing that it is in the public interest that the State officer should be represented by such A & Ss.

    The bottom line is this. Every litigant, whether public or private person, is entitled to be represented by the best legal brains in the country at his own cost and expenses. The State would only help him to bear such expenses if it is in the public interest to do so.

    In Siva's case, he has appointed his own team of lawyers presumably at his own cost and expenses and as such there is nothing in Sect.24 GPA '56 barring him from doing so. No public funds are expended. The State's role is to offer its legal services at Siva's disposals and to ensure no public funds are wasted if Siva chose to dispense with their services.

    That is the law and that ahould have been advanced. No matter how you look at it, Speaker Siva is not a public servant but he is definitly a public officer. A public officer is one who discharges a duty in which the public is interested. But whether Siva is a State officer is a moot point.

    Finally s. 24 uses the words, 'Law officers' and 'legal officers'. When it deals in state matters, it uses the words law offices. When it deals with public/state officers, it uses the word legal officer. Both are seperately defined.

    Any comments on my take.

  7. Fairplay

    How come the new MB and his team can have private lawyers ? Are they government officers and did they litigate the case in court ? The world is watching !

  8. kelvin

    Well.. in women circle, there is this saying, some men thinking with head above and some men think with head below. Guess, who think with head below? and when men think with head below, they does stupid n shameful act, just to satisfy their whatever for second.

    For whatever sake, let's all the men n women in Malaysia think with head above in 3 years time. Who cares whether the opposite can do a good job. We just want a change. Get us some fresh air. that's we ask for.

  9. RAILCOOP

    Things are getting so hot that no one seems to have the desire to personally get embroiled in the politics of BN today except for those in power in BN and their stalwarts. *( PS. Not meant to be a compliment for cronies)

    The French papers are giving headline news on how Alantuya got blown up bit by bit and how she was shot, how her dress was removed and where the explosives were all placed. Very interesting – when she had apparently been travelling all over Europe in the Maseratti with Razak and dining with you can guess who in posh a club in …..!.

    Then we have news of Emrail and Gamuda and the politics of double track railways in the PR States. Interesting to know who was in Emarail before.

    After that we have allegations of the son of a top person in the Investigative Services being caught in Australia with porn tapes and being taken to the Magistrate in Handcuffs.

    The someone writes about the Juiciary from the top to the bottom and appeals that we should try to understand the predicament that the Judicial Commissioner in Perak was placed in.

    Then we learn that all of us who fly out of KLIA are paying YTL RM 8.00 each everytime we take a flight. Ripped without our knowledge.

    Then an Australian journalist rips apart the Accounts and liabilities of Air Asia and raises pertinent questions.

    Finally we have of course the the SAGA of Perak.

    All these are too much for many of us to corelate and digest. All that we can surmise is that WE are ALL in for a very bad time.

    May God have mercy on us all for having failed to stop BN in its tracks many years ago until it had become too late. BN is no more thinking rationally. Power has made it mad.

    It is said that "Those whom the Gods wish to destroy – They make them mad first".

  10. MyBlog

    What is the point…it is so black and white but this fellow Riduan is bent on achieving his end…so nothing is going to happen….sit back and let zimbabwe happen. Dont cry when the bullet has already left the gun…figuratively speaking

  11. Yvonne Young

    I refer to the press statement released by the President of the Bar Council on 3-3-2009: http://www.malaysianbar.org.my/press_statements/p

    I would like to point out her statement that, "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?"

    The possible "conflict of position" is also debatable. The State Legal Advisor may argue that they can be fair and independent though it will be a mystery to many of us how they can achieve that.

    So now, what option is available to the Speaker? None, in my view, the proceeding is meant to be against the Speaker in the first place.

  12. siti aurora

    I totally agree with "Loyar Bagus". He has proven that he deserves to be called "loyar bagus". There is indeed a clear difference between a "state officer" and a "public officer".

    And since all of you are accusing the BN has corrupted the judge on this case, no wonder you call yourself "loyar buruk"

  13. mistyfished

    what now since Ridwan's contract has actually expired?

  14. Pingback: jelas.info » The Spread of Injustice - Perak, Anwar, Rosmah/Najib and the rule of law

  15. Some things are very basic and lets have the facts out.

    1. Majority has to be proven on the floor of the House.

    2. Vote of no confidence, similarly, has to be on the Floor.

    3. Ours is a constitutional monarchy. Like it or not, we Sabahans and Sarawakians does not have that kind of reverence for the Malay sultans, regardless of whether we are Malays (Sarawakian/Sabahan) or not. Therefore, all these derhaka pada raja thing is an alien concept to us, and shall remain alien, as we move towards 21st century and beyond.

    4. The police (and the MACC, and you and me) has not business in questioning a speaker of an assembly. Our responsibility as a democratic citizen is to vote. The police does not have any locus standi to question a member of Parliament or state assembly over things that are said in the august house, unless it is a seditious matter.

  16. silverhart

    i think some people who have left comments in this blog, have failed to realise that this article just reflects the views of the author ( shanmuga). Every one is entitled to their views. Even if one disagrees with his view, i think you people should comment professionally.

    Frankly speaking, what was commented by precendential transitions is plain silly , because it doens't take a genius to figure out that what shanmuga wrote has no legal effect. It's obvious that your comments is purely for the purpose of mocking the author.

  17. Precendential Transi

    who's the judge here, Shanmunga or Ridhwan? Whatever that Shanmunga fella wrote here, of no legal effect at all.

  18. Observer

    Enough, lawyers! Stop being too arrogant and act like fools at the same time. You make people puke. Be a bit 'humane' and cultured. Not just like a junkyard dog barking at the instance u got the chance to. Most of you are trying to find loopholes to justify your cases instead of being a cultured, gentlemen who respect the Malaysian culture.

    Deep in you people's heart you know that PR has lost it. That tambi Sivakumar has lost it. Over reacting. Over dramatizing. Be a gentleman and step away. Dont waste millions of other Perakians time and future just for the power that you never deserve.

    Its the majority of the ADUNs + The Sultan of Perak versus you silly goons!

  19. sd

    "in his personal capacity, if the Attorney General certifies in writing "

    Why sivakumar do not get AG to allow him private lawyer in the first place??? DO think about it…. if you follow the system, you can survicve…

    just like some lawyer who place their bar council emblem next to number plate which is definately against the law… can you trust this kind of lawyer to break the law themselves??? and then when caught speeding can lie to police that they are late going to court??? such as bunch of loyar burok…

  20. As to the request by LoyarBagus, here is the full section 24.

    However, I believe reading State officer and public officer in different ways would not advance the purpose and intent of the Act, which gives "governments" leeway to appoint private lawyers or be represented by the legal officers, but requires civil servants to be represented by the legal officers unless the AG decides otherwise.

    The Speaker of a Legislative Assembly, occupying a unique Constitutional role, seems to be outside the scope of the Act.

    Section 24. Appearance of law officers.

    (1) Notwithstanding any written law-

    (a) in civil proceedings by or against the Federal Government a law officer, the Parliamentary Draftsman or a Federal Counsel, or, in the case of the States of Sabah and Sarawak, a legally qualified member of the Federal or State Attorney General's Chambers authorised by the Attorney General for the purpose; and

    (b) in civil proceedings by or against the Government of a State a law officer, the Parliamentary Draftsman or a Federal Counsel authorized by the Legal Adviser of such State, and, in the case of the States of Sabah and Sarawak, the State Attorney General or any legally qualified member of the State Attorney General's Chambers authorized by the State Attorney General for the purpose;

    may appear as advocate on behalf of such Government and may make and do all appearances, acts and applications in respect of such proceedings on behalf of the Government.

    (2) Notwithstanding any written law in civil proceedings to which a public officer is a party-

    (a) by virtue of his office; or

    *(b) in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer;

    a legal officer may appear as advocate on behalf of such officer and shall be deemed to be the recognized agent of such officer by whom all appearances, acts and applications in respect of such proceedings may be made or done on behalf of such officer.

    (3) An advocate and solicitor of the High Court duly retained by the Attorney General in the case of civil proceedings by or against the Federal Government of a Federal officer, or by the Legal Adviser, or, in the case of the States of Sabah and Sarawak, by the State Attorney General in the case of civil proceedings by or against the Government of a State or a State officer, may appear as advocate on behalf of such Government or officer in such proceedings.

    (4) In civil proceedings to which the Attorney General is a party under section 8 or section 9, a law officer, the Parliamentary Draftsman or a Federal Counsel authorized by the Attorney General for the purpose, and, in the case of the States of Sabah and Sarawak, a legal officer, may appear as advocate and make and do all appearances, acts and application in respect of such proceedings on behalf of the Attorney General.

    ___________________________________________

    NOTE:

    For Sabah and Sarawak substitute the following paragraph for paragraph 24(2)(b):

    "(b) in his personal capacity, if-

    (i) in the case of a Federal Officer, the Attorney General certifies in writing; and

    (ii) in the case of a State Officer, the State Attorney General certifies in writing;

    that it is in the public interest that such officer should be represented by a legal officer;".-See L. N. 67/65.

  21. Thanks for all your comments. I would be slow to accuse the learned Judicial Commissioner of bias or being pro-BN, and think he made the decision in good faith but, respectfully, in error. It will be interesting to read his grounds.

    In the case of Ministers, the GPA definition of officer includes them. See section 2

    " 'officer', in relation to a Government, includes a person in the permanent or temporary employment of such Government and accordingly (but without prejudice to the generality of the foregoing) includes a Minister of such Government."

    In the case of a Judge, the application to cite Augustine Paul J (as the Federal Court Judge then was) for contempt is instructive. The AG applied to intervene to act as counsel for the Judge. Hashim Yusoff J (as the Federal Court Judge then was) conceded that a Judge was not a "public officer" within the meaning of the GPA, but nevertheless seems to have allowed the AG to act on general policy grounds since a Judge was a high office created under the Constitution. See PP v Anwar Ibrahim [2002] 2 MLJ 730.

  22. morais

    Loyar Burok,

    I assume that you are PR supporters. What PR YBs has been doing reflect their distorted mind in action. I voted for PKR on the last election not because I like them ( as I disagree to have immoral person to lead a party like PKR ) but just to reduce the majority of BN. My intention and most other voters are to send a message to Pak Lah the sleepy head that he had done enough, please go away.

    Now that BN has command the simple majority to rule Perak why would PR assemblymen defy that facts. Let them rule la! Why waste time disrupting their plan for the rakyat. Be gentlemen and accept the fact that you lose politically and wait for your turn to win back the hearts of the rakyat if they still thrust you people of PR.

  23. Pingback: Iklan Mudah Blog » Blog Archive » Go back to the people… and now Chin Peng

  24. RTan

    Shanmuga,

    Your arguments are persuasive. But then how do you explain why the other officers listed under Art 132(3) have always been represented by the AG? For example:

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

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

    Under Art 160 of the Federal Constitution defines "member of the administration" as, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official member) of the Executive Council.

    If that is the case, a minister and a judge are not "public officers" and cannot be represented by the AG.

  25. Pingback: Iklan Mudah Blog » Blog Archive » Go back to the people

  26. Another point to consider is the definition of "civil proceedings" in the GPA.

    Section 2(2) states that "civil proceedings" does not include proceedings under Chapter VIII of the Specific Relief Act (matters relating to the enforcement of public duties) or such proceedings as would in England be brought on the Crown side of the Queen's Bench Division (which includes judicial review proceedings).

    If the subject-matter or nature of the suit seeks relief which falls within the excluded categories, the GPA is inoperative.

    Can someone send a copy of the cause papers please for verification?

  27. Remo

    Yang Arif Ridwan need to do his homework. Simply favouring the BN is stupidity.

    Please go back and refer your book. Don't make yourself a fool.

  28. m

    this move is to stop the PR lawyers and say no one was there for the Speaker of the Legislative Assembly of Perak – YB Sivakumar. This is so silly. We should check if the BN lawyers should be there. Then we can see how Ipoh High Court Judicial Commissioner Yang Arif Tuan Ridwan bin Ibrahim is so favor the BN. Such a clear cut abuse of one's position. Will not surprise me if become CJ one day.

  29. 0309 the day democracy dies in M'sia. The complicity of the thugs in uniforms (polis) performed the act of the executioner in laying the final nail into the coffin (democrarcy). The rule of law & civil society gone in a puff of smoke, what is left in its place is a facade, a sickening joke. Tyranny & corruption rules! Fascist regime UMNO/BN rules!

    If ever,there is to be a genie, saviour, a warrior, a great leader to guide M'sia back to civil society & rule of law, it would be Tok Guru Nik Aziz. The tyrant UMNO can't defeat PAS.

  30. Rikesh

    Great looks like Malaysia is becoming like Thailand and maybe even Zimbabwe. The currency is falling, the economy is also facing problems etc.

    We as a democratic nation looks to be a joke in front of the international media. This instability keeps up, the foreign investors / companies will look elsewhere.

    Thank you BN.

  31. Loyar Bagus

    Before you all go UMNO-natang this and Najis that, can you have a read of the sections?

    Based on what Mr Shanmuga has said:

    1. Law officers "may" act for "public servants." Impliedly therefore, private lawyers may also act for "public servants." Mr Shanmuga himself admitted the Speaker is not a "public servant" according to the various statutes and the Constitution. So how is he entitled to private lawyers per section 24(1) and (2)?

    2. According to "Section 24(3) of the Government Proceedings Act 1956 seems to suggest that the State Legal Adviser MUST retain advocates and solicitors in order to act on behalf of the 'State government' or 'State officers' in 'civil proceedings by or against the Government of a State or a State officer'" (quoted from the article above). Is the Speaker a State officer? Sounds like it. Is there a difference between a "State officer" and a "public officer" in the Act? There certainly seems to be, otherwise why the use of different terms? If so, the State Legal Advisor MUST appoint lawyers for the State officer. Where does it say anything about the Attorney-General and his permission?

    With respect, perhaps Mr Shanmuga may be better served by reproducing the entire relevant tract of the Government Proceedings Act 1956 and letting the lawyers amongst us make up our own minds. Otherwise, your reactions are symptomatic of the malaise that is afflicting our democracy. Everything pro-PR or pro-Anwar is good, everything that is pro-BN is bad. Even when the law is on BN's side. This is immature and petty.

  32. GhifariX

    Fellow citizens, fear not nor panic! it is merely the process we have seen from time memorial; destitution of the powers of the day. Usually they start with trifle yet the same evil intentions to subvert justice and in so doing violate the peoples, society, institutions and last but not least their own human dignity, Its liken to a tree before it topples down. This government is rotten, its shedding its leaves there's and its bark, there's nothing glamorous about the elite no more and not even its benefactors dare sanctify themselves in hopping over to the masses with a single courageous act in redemption – God in His infinite mercy! wouldn't allow them. It does make things a bit difficult but that's the process for a good bill of health. Lets us sacrifice. Let the Royals stay in their palaces and the police in their uniforms and the army in their barracks. That's the meaning of change. We shall overcome them as did the generations before us.

  33. Ian

    Don't know much about our legal system, but from what we have seen so far, it is apparent that the system is corrupted and decisions are made only in favor of the ruling party. Why study law then? Why not just go straight to studying politics and be above the law?

    Our judges have no honor whatsoever and frankly, if I happen to see one, I will spit on his or her face in disgust. Learned judge, my foot.

  34. RAILCOOP

    Congratulations Shanmuga for a very fine and lucid summation of the 'case' for the People. We are aware that every antic will be brought up to stalemate the Speaker by use of brute force not compatible with decency and honour.

    The episode strikes one as an unquenchable 'thirst' for power – certainly not for the good of the Rakyat by any stretch of imagination as seen during the last 30 or more years.

    It is great to have people like you to defend the weak, the poor, the meek, the humble and the witless of this great Nation.

  35. lizzie wong

    thanks for enlightening us. Ever since 308, and more so after 205, the general citizens of our land are well exposed to matters of the legislature and constitutions. Sorry BN, we cannot be so easily fooled now!!

  36. wira

    I don't wish to pour cold water.

    I think we should not prejudge JC Ridwan bin Ibrahim.

    Basically the judge will only rule on the presentations and objections according to the law.

    If we have to blame someone, blame in on the PR dream team who failed to bring out the relevant arguments like those listed by you above.

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  38. Saiful Haq

    This is the problem when the stomach is allowed to rule the head. Vested interest has completely overshadowed considerations of morality, justice and fair play. UMNO/BN and their sychophants in the executive and judiciary are prepared to do everything, even ones that border on insanity, without shame and compunction so long as they can keep their jobs and their ill-gotten gains.

    It is time for us and the down-trodden to say enough is enough and use whatever is left of democracy to bring them down from their pedestals before this country is completely ruined.

  39. concerned student

    what is going on to our country? The whole system on the judiciary and the separation of power doctrine looks different from what we study in our Form 6 Pengajian Am. If they are going to go on with it, it will definitely affect the education system in the whole country. Now, so many questions have been brought up among the students. Who is more powerful? The Speaker or the Dewan Secretary? Who is the real MB of Perak? If the government do it, dont they realise that Dewan Rakyat Speaker will also be questioned as I have heard him barring opposition leaders from entering Parlimen sessions as well. I think the best way is to let our Rakyat to decide. Or else, we will be a joke for the British. Almost same laws and the separation of power doctrine is used but we seem to be confused with it and seem to love to mix it up all together. Even the police and judges seem to be biased to BN. We the Rakyat just plea for the Government (no matter from BN or Pakatan) to be fair and stop corruption. NOTE our country is in danger – economic crisis!! Is power that important until you can neglect the whole country? If Perak goes down, Malaysia will also go down as well!

  40. MyBlog

    How come the lawyers representing the speaker didnt bring this up….?? Can someone inform them

  41. Dualties

    Shanmuga :

    Bravo! Bravo! You have done your job well. The Rakyat is now well informed with your facts and research on the High Court Judge Ridwan bin Ibrahim. Shame on the judge who appears to be pro-executive BN.

    The might of the Rakyat is greater than the learned.

  42. sleme

    Malaysia Boleh…Judicial Activism ala UMNO. Rumour has it that after barring Tommy and his team, the judge proceeded to hear the application without the presence of the State LA. He also apparently granted the injunction. Can anyone verify this?

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