PUTRAJAYA: The Federal Court has reinstated the RM10,000 fine imposed by the advocates and solicitors’ disciplinary board against former lawyer A. Sivanesan (pic), who is now a Perak state executive councillor, 13 years ago for professional misconduct.
This followed a decision by the three-member panel comprising Justices Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat and Datuk Harmindar Singh Dhaliwal, to allow the appeals by the Malaysian Bar and K. Pathmanathan.
The Malaysian Bar and Pathmanathan had appealed 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.
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 concerning 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 the 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, the Sungkai assemblyman, should have communicated to Pathmanathan regarding the new hearing date fixed by the Industrial Court, but failed to do so.
The court awarded RM20,000 in costs to Pathmanathan.
In Feb 2021, the High Court upheld the disciplinary board’s findings, which found Sivanesan guilty of professional misconduct.
It was decided 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 Jun 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.
Bernama reported that 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.
Sivanesan, when contacted, said his position as an assemblyman would not be affected as it was a civil suit and not a criminal offence.
He said under Article 48 of the Federal Constitution, if someone were to be convicted of a criminal offence and sentenced to imprisonment for two years or more or fined RM2,000 or more, he or she would be disqualified from being an MP or state assemblyman.
“The key word is ‘convicted’, and this is not a criminal offence but a civil one, so there is no issue of disqualification,” he added.
Sivanesan said his legal team would write to the court to get the grounds for the judgment to determine his next course of action.
“Once we get it, my lawyers will study whether we can go for a revision,” he said.
