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.

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".

Reproduced with permission from