(Source pic courtesy of Merdeka Review)
KUALA LUMPUR, 6 March 2009: Perak Speaker V Sivakumar has filed a suit against the state’s legal adviser for falsely representing him in an application to prevent him as Speaker from convening any state assembly sitting.
He is also asking the court to set aside the injunction that was granted on 3 March to prevent him from calling any state assembly sitting, and declare it non-binding on him. Sivakumar filed the suit at the Kuala Lumpur High Court in Jalan Duta this afternoon.
Sivakumar is seeking the court’s judgement to declare that the Perak legal adviser acted without authority when he purportedly represented Sivakumar on 3 March during a hearing for the injunction.
Zambry Abd Kadir (File pic)The application for the injunction was made by Barisan Nasional (BN)’s Perak Menteri Besar Datuk Dr Zambry Abd Kadir and six other BN state executive councillors.
In his statement of claim filed today, Sivakumar said that as the hearing on the injunction was heard in chambers and without the legal team of his choice, the state legal adviser could have consented, colluded and conspired with Zambry’s lawyers.
The Speaker was not allowed to be represented by his own legal team because Perak Judicial Commissioner Ridwan Ibrahim ruled that private lawyers had no locus standi to represent Sivakumar as he was part of the state government, and hence had to be represented by the state legal adviser.
The judge made the decision in chambers.
The same afternoon, assistant state legal adviser Zulkarnain Hassan “represented” Sivakumar in the hearing to restrain the Speaker from convening future assembly sittings.
Yesterday also, the Ipoh High Court ruled that Sivakumar had to be represented by the Perak legal adviser.
Sivakumar said he had never appointed the state legal adviser to act on his behalf.
Instead, he had appointed Chan and Associates as his solicitors, and Tommy Thomas, Philip Koh Tong Ngee, Augustine Anthony, Chan Kok Keong and Leong Cheok Keng as his legal team.
He says his fundamental right under the Federal Constitution to be represented by lawyers of his own choice had been violated.
“Although he was never appointed by the plaintiff (Sivakumar), the defendant (state legal adviser) purported to act as counsel for the plaintiff in the said injunction application…thereby acting without the express or implied authority of the plaintiff,” Sivakumar’s statement of claim read.
Sivakumar’s also claimed that the state legal adviser’s actions had created a relationship of agent and principal under the Contracts Act 1950.
The state legal adviser had thus breached the Act by not communicating with him and not taking his instructions or directions.
“In consequence, the plaintiff contends that the injunction order granted on 3 March was a sham order, done in deceit, and therefore null and void and not binding on and/or enforceable against the plaintiff,” the statement of claim said.
Sivakumar is also asking the court to declare that the state legal adviser had acted without authority, acted negligently, in breach of contract and of duty, and in breach of fiduciary duties.
Conflict of interst
In the court papers filed today, Sivakumar said the state legal adviser had a “conflict between his personal interests in promoting the needs of his employer and his duty to the plaintiff”.
Voting carried out at the emergency sitting under a tree, in Perak
This was because as legal adviser to the state government, his “exclusive duty and loyalty is to the BN government, which is his employer”.
The state legal adviser as a member of the legal services also had to report to the Attorney-General who is his “ultimate superior officer”.
“The Attorney-General is the principal legal adviser to the Federal Government of Malaysia, which is governed by the Barisan Nasional. In consequence, the Attorney-General’s sole and exclusive duty and loyalty is to the government of the day, which appointed him,” Sivakumar said.
Sivakumar added that since the BN government was “adverse to the interests of the plaintiff”, the state legal adviser was not in the position to protect and preserve his interests since he was not a BN member.
Sivakumar is also contending that being elected to the post of assembly Speaker, he is not a member of the Perak administration nor a public authority nor a member of the public service.
The Government Proceedings Act 1956 therefore did not apply to him, and as such he was not obliged to be represented by the state legal adviser.
Separately, Sivakumar has also filed an appeal in the Court of Appeal in Ipoh and Putrajaya against Ridwan’s decision to prevent him from appointing his own lawyers.