Subscribe in a reader | Subscribe by Email Earlier, Sivakumar, who was waiting for his case to be called, was seen approaching assistant state legal adviser Zulkarnain Hassan, who had entered the courtroom at about 9.50am, but Zulkarnain avoided speaking to him and was later seen sitting with lawyers acting for the three independents.
A frustrated Sivakumar claimed that he tried to speak with Zulkarnain after friends identified him as his representative.
“But when he (Zulkarnain) came in, he refused to talk to me. I wanted to ask him so many things.
“I don’t even know his name or who he is. I don’t know who is (to be) my lawyer,” said Sivakumar.
Imagine your lawyer not interested to speak with you. It is weird actually. The State Assembly speaker is deemed to be part of state government by the Judicial Commissioner, while some say he is not since its explicitly stated that members of state assembly are not part of public service. Refering to NH Chan (former Court of Appeal judge):
I shall start with section 24 of the Government Proceedings Act 1956. I have highlighted the important words for easier reading. Sub-sections (1) reads:
“(1) Notwithstanding any written law –
(a) in civil proceedings by or against the Federal Government…
(b) in civil proceedings by or against the Government of a State, a law officer … authorised by the Legal Adviser of such State … may appear as advocate on behalf of such Government…”.
As you can see, this sub-section is not relevant as it only applies to civil suits brought by or against the state government, not a public officer.
And sub-section (2), which is relevant on the subject of discussion, reads:
“(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…”.
This sub-section only applies to civil suits brought by or against a public officer. In such a case, a public officer may (the word is ‘may’ not ‘must’) be represented by a legal officer which could include the legal adviser of the state.
Therefore, there is nothing in section 24 (2) of the Government Proceedings Act to suggest that a public officer if he sues or if he is sued must be represented by a legal officer such as the state legal officer.
In any case, section 24 (2) of the Government Proceedings Act only applies to civil proceedings to which a public officer is a party. Therefore, the question is, does the speaker of the Legislative Assembly of a state hold office as a member of the public service? If he does, then he is a public officer.
Article 132, Clause (3) of the Federal Constitution states that:
“(3) The public service shall not be taken to comprise –
(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.”
So now you know that the speaker and the members of the Legislative Assembly of a state are not part of the public service as they do not hold office as public officers. Therefore, section 24 (2) of the Government Proceedings Act does not apply to them.
The whole article seems to question the competency of the “novice” Judicial Commissioner, but that’s another story. Well, that’s NH Chan’s version, you may say. I guess we have to see what articles exists in the law to negate Chan’s arguments. Perhaps the JC’s ruling had such details.
If Speaker Sivakumar is considered government staff, then he must use the state attorney to represent him in court. Problem is, the state attorney also represents new MB Zambry against the State Assembly Speaker in another suit. So, question arises if the office of state attorney can discharge its duties well or fairly, because its responsibilities lies to the state, not to the individuals it may represent. Thus, one can’t be blamed for thinking that the state legal advisors will lean towards the new MB and penalise the Speaker.
Further more, I think the notion that one is forced to use a particular legal service flies in the face of our basic rights to justice. How can a person expect to have his fair day in court when he can’t even represent himself, or worse still is represented by someone he has no faith in? I might as give up and concede to the opponents.
Sivakumar is in deep trouble. The feeling is that he has “musuh dalam selimut” (enemy within) and surely will lose his cases.
