PUTRAJAYA: The Federal Court has reinstated a fine of RM10,000 imposed by the advocates and solicitors’ disciplinary board against former lawyer A. Sivanesan, who is now a Perak state executive council member, 13 years ago for professional misconduct, Bernama reported.
This followed a decision by a three-member panel comprising Justices Nallini Pathmanathan, Vernon Ong Lam Kiat and Harmindar Singh Dhaliwal to allow the appeals by the Malaysian Bar and K. Pathmanathan.
The Malaysian Bar and Pathmanathan were appealing against the decision of the Court of Appeal, made on Dec 15 last year, which overturned the High Court's decision that upheld the disciplinary board’s decision.
In the court decision on Monday (Feb 13), Justice Nallini said the Court of Appeal should be slow to intervene on the findings of facts made by the disciplinary committee of the advocates and solicitors’ disciplinary board.
The Industrial Court’s notes of the proceeding and the award confirmed the basis for the disciplinary committee’s finding of facts, she said, adding that there was no basis for the Court of Appeal to reverse the disciplinary committee's finding of facts with regard to the events on April 6, 2010, solely on the evidence of another witness.
Justice Nallini said the Court of Appeal failed to appreciate that Sivanesan was acting for Pathmanathan and even gave the undertaking to file forms necessary for his appointment, despite not having instructions to do so.
"Therefore, the disciplinary committee was justified in coming to its findings,” she said.
Justice Nallini said Sivanesan, who is Sungkai assemblyman, ought to have communicated to Pathmanathan regarding the new hearing date that was fixed by the Industrial Court, but failed to do so.
The court awarded RM20,000 costs to Pathmanathan.
In Feb 2021, the High Court upheld the findings of the disciplinary board which found Sivanesan guilty of professional misconduct. It made the decision after considering the disciplinary committee’s recommendation.
The disciplinary proceedings had alleged several breaches by Sivanesan of the Legal Profession Act 1976 and its etiquette rules, which included among others, deceiving the Industrial Court into believing that he was acting for Pathmanathan.
On June 13, 2016, Pathmanathan filed a complaint against Sivanesan after the Industrial Court struck off his claim for unfair dismissal due to his absence in court.
He claimed, among others, that Sivanesan failed to inform him of the hearing date.
Sivanesan was represented by a team of lawyers led by R. Kengadharan, while lawyer Heng Yee Keat appeared for the Malaysian Bar. Pathmanathan represented himself.
When contacted, Sivanesan said his positions will not be impacted as it was a civil suit, and not a criminal offence.
He said under Article 48 of the Federal Constitution, if someone was to be convicted of a criminal offence, and sentenced to imprisonment for a period of two years or more, or alternatively fined RM2,000 or more, he or she would be disqualified from being a Member of Parliament or state assemblymen.
"The key word is convicted and this is not a criminal offence, but a civil one, so there is no issue of disqualification," he said.
Sivanesan said his legal team will write to the court to get the grounds of the judgment to determine the next course of actions.
"Once we get it (grounds), my lawyers will study it whether we can go for a revision or not," he said.
