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The Perak Bar Treasure Hunt
Saturday 18 May 2013
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Re: Information Technology Sub Committee 2009/2010
Members who wish to serve in the Information Technology Sub-Committee are most welcome. Please contact the below given contact number before the 15th of April 2009.
Committee Member : Mr Gavin Tang Cheng Loong Portfolio : Information Technology
Re:Professional Standards & Development Sub Committee 2009/2010
Members who wish to serve in the Professional Standards and Development Committee are most welcome.Please contact the below given contact number. Please note that the Perak Bar circular dated 4th March 2009 informing members of the newly elected Perak Bar Committee stated Mr. Rashpal Singh’s phone number incorrectly. Mr. RashpalSingh’s correct contact number isstated here below :-
Committee Member : Mr Rashpal Singh a/l Khajan Singh
Portfolio: Professional Standards & Development Committee
Tel No: 05 - 243 8050
Fax No: 05 - 243 8051
Yours sincerely,
Rashpal Singh
Chairman
Professional Standards & Development Sub-Committee
This is a brilliant advertisement by the English Football Association released as part of their RESPECT campaign. I think all of us irrespective of whether we play football or whether we are English will understand and learn something from it.
Re : Talk by Mr. N. H. Chan retired Judge of the Court of Appeal
Topic :How to Judge a Judge
Speaker:Mr.N.H. Chan retired Judge of the Court of Appeal
Venue :Perak Bar Secretariat
Date:19th March 2009 (Thursday)
Time :4.30p.m
This talk is open to the members of the Bar and chambering students and only members of the public who are guests of the members of the Bar .The entrance fee is only RM10.00.All proceeds will go towards the Continuing Legal Education Fund. Kindly note that the entrance fee includes coffee and tea only.
Kindly RSVP to the Perak Bar Secretariat by 18th March 2009 as seats are limited. Please contact Ms. Prem/ Ms. Sarah @ 05-2537590/2415457 for the reservations.
Kindly RSVP as requested so that the talk can be held as scheduled.
Thank you.
Yours sincerely,
Rashpal Singh
Chairman
Professional Standards & Development Sub Committee
I was asked by the Perak Bar Blogmaster to write a piece for the Perak Bar Blog on the current happenings in Perak and the brewing constitutional crisis which is reminiscent ofa Hollywood script complete with the intrigue, drama and espionage.
My brief was to write a piece on the crisis to stimulate and encourage discussion. My initial reaction was one of dismay given the fact that most members of the Perak Bar are a pretty laid back lot. So call me a fool or an optimist, I am hoping that this piece will trigger some discussion. Why should lawyers from outstation or overseas have all the fun interpreting our laws when it directly affects us Perakians? So come on you legal Perakian eagles, lets hear from you.
Abraham Lincoln once famously said in his Gettysburg address
“………….and that government of the people, by the people, for the people, shall not perish from the earth”.
Having said that, I am also not going to assign the word government or opposition to any party as there is already so much confusion over who is our legitimate government as this is something that is yet to be decided.
Early last month, I attended a mediation course where it was drummed into the participants that the focus is on the interests and not positions.
So it is appropriate to start with this. What is the paramount interest that has to be protected and preserved in this ordeal? Some might say that it is the interest of the government –v- the interest of the opposition (or vice versa). Others might say the sanctity of the rule of law and democratic process. I say it is the sanctity of the rule of law and the democratic process.
Perakians who thought that the issues of the legitimacy of the newly formed administration is now in the hands of the Court to decide on the case of the 2 Chief Ministers and interpret article 16(6) of the Perak State Constitution, were taken by surprise when the State Assembly speaker flexed his muscle under the powers of the Constitution. Now there rose another plethora of questions by both sides on the validity of his decisions and the scope of his authority to convene a State Assembly that had according to him been adjourned sine die.
I was in Court last Monday 2.3.2009, at the hearing of the injunction sought by the new administration seeking to injunct the Speaker from carrying out any of his official duties. I had expected to hear ground breaking arguments on the constitutional law of Perak and hopefully see some marvelous advocacy and emphatic arguments.So as we sat in a packed court room jostling for room with the squadron of reporters from all the news networks, the door to the learned Judicial Commissioner’s chambers opened and out came Tommy Thomas and he was engulfed by a swarm of people who were appraised that the “private lawyers” appointed by the speaker were disqualified from acting for him as he is a government employee and can only be represented by the State Legal Adviser. In the interim, the State Assembly was being convened under a tree. Hmmm! The plot thickened my fellow members. The tension, worry and excitement in the Courtroom was palpable.
Given the severity of the matter and the legal implications, the following questions arose:-
Can a Speaker be injuncted by a Court Order i.e. is the Court clothed with the power to grant such an Order?
Was it proper for the State Legal Adviser to step into the shoes of the disqualified lawyers given the fact that he had not sought instructions from his client, the speaker as to his defence on the matter?
Is the Speaker entitled to appoint lawyers of his choice?
Is there a conflict of interest here given the fact that the State Legal Adviser’s office is representing the new administration in the case of the 2 Chief Ministers filed in Kuala Lumpur?
Is the Assembly held under a tree valid?
Finally, if it was necessary to injunct the speaker from carrying out any duties or functions and assuming that the Court (under q1 above)can make such an Order, is that a concession that until an injunction is made to that effect the speakers actions are valid?
Opposing ideas and views are welcome. We are one Bar and we have to be proactive in educating the public and each other about the situation that is unprecedented and one for the history and law books. But in the spirit of good argument as in any Court battle, we must agree to disagree on the legal points and interpretations of the laws.
Former Court of Appeal judge NH Chan will be delivering a talk entitled "How to Judge a Judge" on Thursday, 12th March, 2009 at 8pm, Royal Ipoh Club. This is a great opportunity to hear the views of a respected former appellate judge. The entrance fee is only RM10.00 and is open to members of the public. All proceeds will go towards the Continuing Legal Education Fund. Kindly note that the entrance fee includes coffee and tea only. Tickets are available from the Perak Bar Secretariat. Please contact Miss Prema @ 05-2537590
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.
Written by Shanmuga Kanesalingam
[Comments on the article]
Let it stays within the four corner of the wall ...
written by Tan Chun Ming, Tuesday, March 03 2009 09:30 pm
Court's Jurisdictions:
Bradlaugh v Gossett (1884) 21 QBD 271-Courts have no jurisdiction to pass upon any conduct that forms part of proceedings in Parliament.
Lim Cho Hock v Speaker, Perak Legislative Assembly [1979] 2 MLJ 85 at page 88:
"Under the lex et consuetudo parliament, the Assembly has control over its proceedings, procedure and members and may decide questions as to their qualifications and disqualification."
In McDonald v Cain [1963] VLR 411:
Gavan Duffy J observed:
"There is no doubt that the courts will not interfere with the Council's management of its business within the four walls of Parliament even if it appears that some legal right has been interfered with."
F.C. O'Bryan J. said:
"a thing which is plainly outside their jurisdiction. It is ancient and well-established law that what is said and done within the walls of Parliament cannot be inquired into in a court of law."
the Speaker's role:
Fan Yew Teng v. Government of Malaysia [1976] 2 MLJ 262:
"...Clifton Brown said on his re-election as Speaker in 1945, 'As Speaker, I am not the Government's man, nor the Opposition's man. I am the House of Commons' man and, I believe, above all, the back-benchers' man."
My modification: "As a Speaker, one is not the Government's man, nor the Opposition's man. One is a man of conscience who believe above all, the spirit that this House represents".
